CCC Talk at UH Mānoa Law School


A wee announcement for our Hawai’i readers: This Tuesday I’ll be giving a talk about humonetarianism (the impact of the financial crisis on criminal justice policies) at the William S. Richardson School of Law, University of Hawaiʻi at Mānoa. Here’s more info about the event, including a downloadable version of the paper. I’ll be happy to have you in the audience, and meeting our blog readers in person will be a treat.

While the talk will not focus solely on Hawai’i policies, I hope our audience members will have insights and thoughts about how the crisis has impacted Hawai’i. Last year, Kat Brady spoke to the Star Advertiser about the need to bring the out-of-state inmates back home from the mainland. Brady is a true humanitarian – not a humonetarian – but among the many good reasons to bring the inmates home and find solutions for mass incarceration, she mentions the cost issue.

Do Not Cure Overcrowding with More Prison Construction!


(image courtesy CDCR from a report on AB 900 projects)

About a year and a half ago, we reported on a study showing that population reduction orders may have adverse consequences: they lead to greater expenditures and the money comes from the welfare budget. Today we learn, via the Prison Law blog, that prison litigation may have other unsavory consequences.

Here is the abstract of Heather Schonfeld‘s Mass Incarceration and the Paradox of Prison Conditions Litigation:

In this article I examine how prison conditions litigation in the 1970s, as an outgrowth of the civil rights movement, inadvertently contributed to the rise of mass incarceration in the United States. Using Florida as a case study, I detail how prison conditions litigation that aimed to reduce incarceration was translated in the political arena as a court order to build prisons. Drawing on insights from historical institutionalist scholarship, I argue that this paradox can be explained by considering the different historical and political contexts of the initial legal framing and the final compliance with the court order. In addition, I demonstrate how the choices made by policy makers around court compliance created policy feedback effects that further expanded the coercive capacity of the state and transformed political calculations around crime control. The findings suggest how “successful” court challenges for institutional change can have long-term outcomes that are contrary to social justice goals. The paradox of prison litigation is especially compelling because inmates’ lawyers were specifically concerned about racial injustice, yet mass incarceration is arguably the greatest obstacle to racial equality in the twenty-first century.

As our readers will recall, this unhealthy dynamic played out perfectly in the oral arguments of Plata/Coleman. More than ever, and as I explained here and here, I am convinced that the inmate advocates should not have conceded that the three-jduge panel would consider new construction a suitable solution to the overcrowding problem. While her emphasis is on racial justice litigation and its discontents, Schonfeld’s findings also strongly confirm what anyone with common sense and some knowledge of prison history should know by now: If you build it, they will come. Any attempt to solve overcrowding through construction is an expensive short-term solution that will yield more overcrowding in the future. If we’re not humanitarian, let’s at least be humonetarian, and solve our prison crisis with early releases and a parole program that offers real hope and an escape from recidivism and the revolving door.

Humonetarianism Transcends Politics: Conservatives Support Prison Reform


This week’s L.A. Times features a piece by Richard Fausset on conservative politicians who transcend the “tough/soft on crime” traditional divide to support prison reform — for humonetarian reasons.

Now, with most states suffering from nightmare budget crises, many conservatives have acknowledged that hard-line strategies, while partially contributing to a drop in crime, have also added to fiscal havoc.

Corrections is now the second-fastest growing spending category for states, behind Medicaid, costing $50 billion annually and accounting for 1 of every 14 discretionary dollars, according to the Pew Center on the States.

That crisis affects both parties, and state Democratic leaders have also been looking for ways to reduce prison populations. But it is conservatives who have been working most conspicuously to square their new strategies with their philosophical beliefs — and sell them to followers long accustomed to a lock-’em-up message.

Much of that work is being done by a new advocacy group called Right on Crime, which has been endorsed by conservative luminaries such as former House Speaker Newt Gingrich, former Education Secretary William J. Bennett, and Grover Norquist of Americans for Tax Reform.

. . .

The right’s embrace of ideas long espoused by nonpartisan and liberal reform groups has its own distinct flavor, focusing on prudent government spending more than social justice, and emphasizing the continuing need to punish serious criminals.

Even so, the old-school prison reform activists are happy to have them on board.

“Well, when the left and the right agree, I like to think that you’re on to something,” said Tracy Velazquez, executive director of the Justice Policy Institute, a Washington think tank dedicated to “ending society’s reliance on incarceration.”

Julie Stewart, founder of Families Against Mandatory Minimums, even believes that Republicans, with their tough-on-crime credentials, may have a Nixon-in-China cover to push reform further than Democrats.

“There is a safety conservatives have,” she said. “And for better or worse, Democrats don’t always have that luxury.”

The Right on Crime website features Reagan’s decarceration efforts and welcomes influential figures, such as Broken Windows theorist George Kelling.

This group embodies the spirit of humonetarianism. The message is all about retreating from mass incarceration based on considerations of fiscal prudence. One of the more promising aspects of humonetarianism is the potential for rethinking deeper aspects of incarceration policies after questioning them based on the fiscal consideration, and indeed, the group embraces traditionally “lefty” concepts such as restorative justice, a libertarian take on overcriminalization, eliminating mandatory minimums, and support for geriatric parole. The website has a wealth of information, abundant links to research, and much conservative knighthood clout.
The question, of course, is the extent to which this new and wise move among conservatives will find a good home among the New Right tea party-ers.
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Props to Colin Wood for the L.A. Times link.

Rosenberg on Reentry: The Importance of Peers and Good Programs

In two recent NYT blog posts, Pulitzer prize awardee Tina Rosenberg reflects on the conditions for successful prisoner reentry.

Rosenberg’s first blog post mentions the meager release packages for inmates exiting correctional institutions and the lack of rehabilitative programs, but emphasizes the need to provide them with “a better class of friends”: People committed to AA meetings and GED classes, who will motivate them rather than drag them down the recidivist path. She mentions two programs: The Castle in New York, and San Francisco’s Delancey Street Foundation. Here is some of what she has to say about the latter:

People come to live at the Delancey Street residential building for an average of four years. Each resident is required to get at least a high school equivalency degree and learn several marketable job skills, such as furniture making, sales or accounting. The organization is completely run by its residents, who teach each other — there is no paid staff at all. Teaching others is part of the rehabilitation process for Delancey residents. The residence is financed in part by private donations, but the majority of its financing comes from the businesses the residents run, such as restaurants, event planning, a corporate car service, a moving company and framing shop. All money earned goes to the collective, which pays all its residents’ expenses.

. . .

The Delancey Street residence, which began in 1971, has never been formally evaluated. But there is no question that is phenomenally successful. It has graduated more than 14,000 people from prison into constructive lives. Carol Kizziah, who manages Delancey’s efforts to apply its lessons elsewhere, says that the organization estimates that 75 percent of its graduates go on to productive lives. (For former prisoners who don’t go to Delancey, only 25 to 40 percent avoid re-arrest.) Since it costs taxpayers nothing, from a government’s point of view it could very well be the most cost-effective social program ever devised. The program has established similar Delancey Street communities in Los Angeles, New Mexico, North Carolina and upstate New York. Outsiders have replicated the Delancey Street model in about five other places.

. . .

There are two puzzles here. Delancey Street is now celebrating its 40th anniversary. One would think that by now there would be Delancey 2.0 models sprouting all over. But there are not. A related mystery concerns the idea that underlies both Delancey and the Castle: the importance of pro-social peers. Our guts tell us they matter; we know the effect our friends can have on our behavior. Peer pressure may be the single most important factor getting people into crime — surely it should be employed to get them out again. Yet it is not. Besides Delancey and the Castle, there is probably not a single government agency or citizen group working with former prisoners that lists “clean-living peers” alongside housing, job training and other items on its agenda for what former prisoners need to go straight.

The second blog post expands upon the reasons for reentry failure. Citing David Kirk’s interesting research on the decline in recidivism following Hurricane Katrina, Rosenberg points out how important it is to maintain places that provide support and encounters with reentering peers. She mentions initiatives like Homeboy Industries in Los Angeles, and attributes their inadequate-to-nonexistent funding to “tough on crime” political rhetoric and to lack of research showing the decline in recidivism. However, there are grounds for hope, including humonetarianism (a discourse of scarcity that creates a countereffect to punitive policies) — the silver lining of the financial crisis:

The good news is that we may have reached a turning point, a chance at last to see effective anti-crime policies edge out ineffective ones. One reason is the record number of people being released from prison. This has made prisoner re-entry a hot topic in the field of corrections (if still invisible to the rest of the world). The politics, too, have changed. The crime rate throughout the United States has dropped, which means that voters are less panicked about crime and less singleminded about harsh measures.

The public isn’t thinking about crime — but state officials are. States are in budget crisis. Many states are looking for ways to let nonviolent prisoners out — and they can’t afford to see them come back again. California’s three strikes law — your third felony conviction, even if for something minor, brings a 25-year-to-life prison term — is costing the state $500 million a year, according to the state’s nonpartisan Legislative Analyst’s Office.

Those costs will rise as the prison population ages as a consequence of the law — housing elderly prisoners can cost upwards of $50,000 per year per inmate. And elderly prisoners are the last people you want in prison, as they are the least likely to re-offend. States are finally getting interested in finding out what actually maximizes the chance that ex-offenders will become good citizens. They’re not going to be able to do that without financing research.

Rosenberg’s posts are a call to conduct empirical research on the recidivism-related implications of reentry programs. As we know, recidivism reports are very problematic. The dismal numbers in CDCR’s recidivism report do not necessarily reflect a “return to a life of crime” as much as they might reflect parole failures and technical parole violations (an aspect regarding which the Supreme Court has recently exhibited surprising naïvete). As this good summary from the NIJ website explains, recidivism is a difficult thing to measure. Studies examining the impact of reentry programs and changes in peer groups on recidivism should be careful in their findings. Assuming such problems can be tackled, funding should be provided to programs with proven effects on recidivism rates, such as the marine technology and carpentry training programs at CDCR.

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Props to Michael Sierchio for the link.

Kentucky reforming drug sentences (?!)

So apparently the state of Kentucky is debating legislation to reduce prison sentences and increase diversion for drug convictions. Today’s Lexington Herald-Leader has a detailed, well-written, very informative article about the bill, which was presented Tuesday by members of a special drug-specific sentencing committee called the Task Force on the Penal Code and Controlled Substances Act. Please read the whole thing here, but my favorite passage is:

“The bill would establish a penalty of “presumptive probation” for some lesser offenses, such as drug possession, requiring judges to sentence defendants to probation rather than prison unless the judges can state a compelling reason to do otherwise. It also would require addiction treatment for those convicted of drug possession.

Marijuana possession would drop from a Class A misdemeanor, with a penalty of up to a year in jail, to a Class B misdemeanor, with a maximum jail term of 45 days, if the judge ordered incarceration at all.”

LA Times favors parole for youth LWOPs

Today’s LA Times carries this piece: http://www.latimes.com/news/opinion/opinionla/la-ed-1208-sara-20101208,0,2931752.story subtitled, “Sara Kruzan’s case shows why juveniles should not sentenced to life without parole.”

The Times had previously written in favor of Sen. Yee’s narrowly-defeated SB 399 to change this policy statewide; today’s Times asks Governor Schwarzenegger to offer clemency, if only in this one extreme case.

My favorite quotes: “She has volunteered for dozens of rehabilitation programs and won awards for her participation and attitude. … The CYA felt that she should have been prosecuted as a juvenile rather than as an adult, which would have put her into a rehabilitation program from which she could have been freed by age 25 — seven years ago.”

Sentenced a minor to life behind bars with no chance of parole is a ghastly, inhumane, cruel practice.

David Onek for SF DA?

Now that Kamala Harris is officially moving up from SF District Attorney to CA Attorney General, there will be a hotly contested election for a new District Attorney here in San Francisco in November 2011. One leading candidate is David Onek, a former member of the SF Police Commission; see http://www.davidonek.com/about

In a post on Calitics last month stumping for Kamala Harris, Mr. Onek embraced the humonetarian view of criminal justice, leading with financial statistics about the expense of recidivism. Onek applauds Harris’s Smart on Crime approach, and in particular the Back on Track program. Overall, the post suggests Onek supports more money for prevention, intervention, and rehabilitation, and less money for useless re-incarceration. Tellingly, Onek’s candidacy for SF DA was recently endorsed by Jeanne Woodford, the reform-minded former director of CDCR who supported Prop 5 in 2008.

Facebook users have the opportunity to support David Onek’s campaign for DA by clicking “Like” at http://www.facebook.com/DavidOnek

Who Benefits from Arizona’s SB 1070?

NPR reports:

The law could send hundreds of thousands of illegal immigrants to prison in a way never done before. And it could mean hundreds of millions of dollars in profits to private prison companies responsible for housing them.

Arizona state Sen. Russell Pearce says the bill was his idea. He says it’s not about prisons. It’s about what’s best for the country.

“Enough is enough,” Pearce said in his office, sitting under a banner reading “Let Freedom Reign.” “People need to focus on the cost of not enforcing our laws and securing our border. It is the Trojan horse destroying our country and a republic cannot survive as a lawless nation.”

But instead of taking his idea to the Arizona statehouse floor, Pearce first took it to a hotel conference room.

This is quite a shocking story. It turns out that private prison corporations are among the main financiers of Arizona’s anti-immigration bill. This puts a shocking, cynical slant on what would be deemed a disgraceful bill even if it were sincere, and not profit driven.

Humonetarianism in Sentencing: Missouri Judges Consider Prison Costs

This is a new development with humonetarianism: Judges taking punishment costs into account while sentencing. The New York Times reports:

Months ago, members of the Missouri Sentencing Advisory Commission, a group of lawyers, judges and others established by state lawmakers years ago, voted to begin providing judges with cost information on individual cases.

. . .

The concept is simple: fill in an offender’s conviction code, criminal history and other background, and the program spits out a range of recommended sentences, new statistical information about the likelihood that Missouri criminals with similar profiles (and the sentences they received) might commit more crimes, and the various options’ price tags.

I strongly recommend reading the full piece. It is rather astonishing that prosecutors object to providing judges with such data. Why should decision makers not be aware of the fiscal implications of their decisions? And, if there is no software to provide such data, what is there to stop inquisitive judges from finding this information out on their own? Moreover, it is not as if judges do not factor in social costs at present; it would hardly appear unseemly for judges to consider the impact someone’s sentence might have on, say, public safety, or public opinion. What makes the public wallet any different?

Congress Moves to Reduce Crack/Powder Cocaine Disparity

CCC peeks in from a short summer vacation to inform you of news regarding the well-known, and widely-protested, sentencing disparity between crack and powder cocaine. The New York Times reports:

Under the current law, adopted in 1986 after a surge in crack cocaine smoking and drug-related killings, someone convicted in federal court of possession of five grams of crack must be sentenced to at least five years in prison, and possession of 10 grams requires a 10-year minimum sentence. With powder cocaine, the threshold amounts for those mandatory sentences are 100 times as high.

In the bill passed Wednesday, the amount of crack that would invoke a five-year minimum sentence is raised to 28 grams, said to be roughly the amount a dealer might carry, and for a 10-year sentence, 280 grams.

While crack use has declined since the 1980s, arrests remain common, and some 80 percent of those convicted on crack charges in recent years have been black. A growing number of criminologists have concluded that the sentencing disparity is unjustified and has subjected tens of thousands of blacks to lengthy prison terms while offering more lenient punishment to users and sellers of powder cocaine, who are more often white.
Some points of interest:
  • While a large number of experts expressed serious doubts about the justification of the disparity, there were some who argued the much higher sentences for crack cocaine were justified due to the effects of the drug and its addictive qualities, and were not necessarily a proxy for race.
  • This new development, while a welcome one, is not necessarily a surprising one. In 2007, the Supreme Court decided Kimbrough v. United States, which allowed judges to depart from the advisory federal sentencing guidelines, even if the reason they cited was disagreement with the cocaine/crack disparity.
  • Part of this change may be explained through fads and fashions; as the NYT article mentions, crack usage is on the decline, and it is easier to move forward with such an initiative with a drug that is less of an enforcement priority than it used to be.
  • Note the humonetarian bend in the justification for the legislative change: Shorter prison sentences mean savings.
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Props to Laura Beth Nielsen for alerting me to this.