The Real Cost of Prisons Weblog

July 11, 2008

Interpreter for some of the 400 immigrants arrested and sentenced in meat packing raid speaks up in their defense

July 11, 2008, NY Times
An Interpreter Speaking Up for Migrants
By JULIA PRESTON

WATERLOO, Iowa — In 23 years as a certified Spanish interpreter for federal courts, Erik Camayd-Freixas has spoken up in criminal trials many times, but the words he uttered were rarely his own.

Then he was summoned here by court officials to translate in the hearings for nearly 400 illegal immigrant workers arrested in a raid on May 12 at a meatpacking plant. Since then, Mr. Camayd-Freixas, a professor of Spanish at Florida International University, has taken the unusual step of breaking the code of confidentiality among legal interpreters about their work.

In a 14-page essay he circulated among two dozen other interpreters who worked here, Professor Camayd-Freixas wrote that the immigrant defendants whose words he translated, most of them villagers from Guatemala, did not fully understand the criminal charges they were facing or the rights most of them had waived.

In the essay and an interview, Professor Camayd-Freixas said he was taken aback by the rapid pace of the proceedings and the pressure prosecutors brought to bear on the defendants and their lawyers by pressing criminal charges instead of deporting the workers immediately for immigration violations.

He said defense lawyers had little time or privacy to meet with their court-assigned clients in the first hectic days after the raid. Most of the Guatemalans could not read or write, he said. Most did not understand that they were in criminal court.

“The questions they asked showed they did not understand what was going on,” Professor Camayd-Freixas said in the interview. “The great majority were under the impression they were there because of being illegal in the country, not because of Social Security fraud.”

During fast-paced hearings in May, 262 of the illegal immigrants pleaded guilty in one week and were sentenced to prison — most for five months — for knowingly using false Social Security cards or legal residence documents to gain jobs at the Agriprocessors kosher meat plant in nearby Postville. It was the largest criminal enforcement operation ever carried out by immigration authorities at a workplace.

The essay has provoked new questions about the Agriprocessors proceedings, which had been criticized by criminal defense and immigration lawyers as failing to uphold the immigrants’ right to due process. Representative Zoe Lofgren, Democrat of California and chairwoman of the House Judiciary immigration subcommittee, said she would hold a hearing on the prosecutions and call Professor Camayd-Freixas as a witness.

“The essay raises questions about whether the charges brought were supported by the facts,” Ms. Lofgren said.

Bob Teig, a spokesman for Matt M. Dummermuth, the United States attorney for the Northern District of Iowa, said the immigrants’ constitutional rights were not compromised.

“All defendants were provided with experienced criminal attorneys and interpreters before they made any decisions in their criminal cases,” Mr. Teig said. “Once they made their choices, two independent judicial officers determined the defendants were making their choices freely and voluntarily, were satisfied with their attorney, and were, in fact, guilty.”

Mr. Teig said the judges in the cases were satisfied with the guilty pleas.

“The judges had the right and duty to reject any guilty plea where a defendant was not guilty,” Mr. Teig said. “No plea was rejected.”

The essay by Professor Camayd-Freixas, who is the director of a program to train language interpreters at the university, has also caused a stir among legal interpreters. In telephone calls and debates through e-mail, they have discussed whether it was appropriate for a translator to speak publicly about conversations with criminal defendants who were covered by legal confidentiality.

“It is quite unusual that a legal interpreter would go to this length of writing up an essay and taking a strong stance,” said Nataly Kelly, an analyst with Common Sense Advisory, a marketing research company focused on language services. Ms. Kelly is a certified legal interpreter who is the author of a manual about interpreting.

The Agriprocessors hearings were held in temporary courtrooms in mobile trailers and a ballroom at the National Cattle Congress, a fairgrounds here in Waterloo. Professor Camayd-Freixas worked with one defense lawyer, Sara L. Smith, translating her discussions with nine clients she represented. He also worked in courtrooms during plea and sentencing hearings.

Ms. Smith praised Professor Camayd-Freixas’s essay, saying it captured the immigrants’ distress during “the surreal two weeks” of the proceedings. She said he had not revealed information that was detrimental to her cases.

But she cautioned that interpreters should not commonly speak publicly about conversations between lawyers and clients. “It is not a practice that I would generally advocate as I could envision circumstances under which such revelations could be damaging to a client’s case,” Ms. Smith said.

Professor Camayd-Freixas said he had considered withdrawing from the assignment, but decided instead that he could play a valuable role by witnessing the proceedings and making them known.

He suggested many of the immigrants could not have knowingly committed the crimes in their pleas. “Most of the clients we interviewed did not even know what a Social Security card was or what purpose it served,” he wrote.

He said many immigrants could not distinguish between a Social Security card and a residence visa, known as a green card. They said they had purchased fake documents from smugglers in Postville, or obtained them directly from supervisors at the Agriprocessors plant. Most did not know that the original cards could belong to Americans and legal immigrants, Mr. Camayd-Freixas said.

Ms. Smith went repeatedly over the charges and the options available to her clients, Professor Camayd-Freixas said. He cited the reaction of one Guatemalan, Isaías Pérez Martínez: “No matter how many times his attorney explained it, he kept saying, ‘I’m illegal, I have no rights. I’m nobody in this country. Just do whatever you want with me.’ ”

Professor Camayd-Freixas said Mr. Pérez Martínez wept during much of his meeting with Ms. Smith.

Ms. Smith, like more than a dozen other court-appointed defense lawyers, concluded that none of the immigrants’ legal options were good. Prosecutors had evidence showing they had presented fraudulent documents when they were hired at Agriprocessors.

In plea agreements offered by Mr. Dummermuth, the immigrants could plead guilty to a document fraud charge and serve five months in prison. Otherwise, prosecutors would try them on more serious identity theft charges carrying a mandatory sentence of two years. In any scenario, even if they were acquitted, the immigrants would eventually be deported.

Worried about families they had been supporting with their wages, the immigrants readily chose to plead guilty because they did understand that was the fastest way to return home, Professor Camayd-Freixas said.

“They were hoping and they were begging everybody to deport them,” he said.

Ms. Smith said she was convinced after examining the prosecutors’ evidence that it was not in her clients’ interests to go to trial.

“I think they understood what their options were,” she said. “I tried to make it very clear.”

Legal interpreters familiar with the profession said that Professor Camayd-Freixas’ essay, while a notable departure from the norm, did not violate professional standards.

Isabel Framer, a certified legal interpreter from Ohio who is chairwoman of the National Association of Judiciary Interpreters and Translators, said Professor Camayd-Freixas did not go public while the cases were still in court or reveal information that could not be discerned from the record. Ms. Framer said she was speaking for herself because her organization had not taken an official position on the essay.

“Interpreters, just like judges and attorneys, have an obligation to maintain the confidentiality of the process,” she said. “But they don’t check their ethical standards at the door.”
http://www.nytimes.com/2008/07/11/us/11immig.html?_r=1&hp=&adxnnl=1&oref=slogin&adxnnlx=1215788693-AFbZ6gGAM8xzoFc/rEQsWw&pagewanted=print

Posted by lois at 11:10 AM | Comments (0)

July 10, 2008

Guarded Hope: Lessons from the history of the prison boom by Robert Perkinson

"Navigating these uncertain waters, Abramsky, Gilmore, and Simon all conclude with guarded hope. Although California’s penal system has become one of the nation’s most crowded and dysfunctional in recent years, Abramsky cautiously praises Governor Schwarzenegger for revisiting the concept of prison-based rehabilitation. (Not long after American Furies went to press, the governor proposed sending 22,000 inmates home early to save money.) For his part, Simon hopes that aging baby boomers and the Katrina debacle will force a redirection of government attention from crime control to health care and infrastructure, a shift he believes will reinforce rather than erode social solidarity and public trust. Gilmore closes with a glowing case study of the grassroots political action group Mothers Reclaiming Our Children, an organization with almost no resources that has formulated a far-reaching anti-racist agenda that Gilmore proffers as a template for anti-prison activists everywhere. At the same time, nonprofits like the Sentencing Project and the Criminal Justice Policy Foundation have produced a blizzard of white papers proposing how carefully calibrated treatment programs, a return to judicial discretion, alternatives to incarceration, and robust reentry programs can enhance public safety while cutting costs."

JULY/AUGUST 2008, Boston Review http://bostonreview.net/BR33.4/perkinson.php
Guarded Hope
Lessons from the history of the prison boom Robert Perkinson

In March 1965, at the height of his popularity and power, President Johnson launched a major offensive against crime, which he called a “malignant enemy in America.” Although violent crime had declined markedly since the Great Depression, it was starting to surge under Johnson’s watch, and his conservative critics—following the lead of Barry Goldwater, who had made fighting crime a centerpiece of his failed but galvanizing presidential bid—were eager to pounce. To outflank them, LBJ ordered his attorney general Nicholas Katzenbach to chair a blue-ribbon commission to draft a national crime strategy. “I will not be satisfied,” the President warned, borrowing from Goldwater’s paternalistic playbook, “until every woman and child in this Nation can walk any street, enjoy any park . . . and live in any community at any time of the day or night without fear of being harmed.” He declared “a thorough and effective war against crime.”

From the vantage point of the twenty-first century, Johnson’s belligerent anticrime talk rings familiar, but the policy changes ultimately put forward by his expert panel in 1967 hail, seemingly, from another country. Nowhere among the Katzenbach commission’s 200-plus recommendations were the sorts of punitive fixes presently in vogue. Rather than augmenting law-enforcement powers, the panelists urged greater respect for civil liberties and a national commitment to police fairness and professionalism, complete with in-service training courses like “The civil rights movement and history of the Negro.” Instead of strengthening the hands of prosecutors, the commissioners recommended greater evidence sharing, eliminating most bail charges, and expanding legal services for low-income defendants. Instead of tougher criminal sentencing, they suggested rolling back mandatory-minimum drug penalties passed in the 1950s and shifting resources from imprisonment to probation and parole.

Although the panelists advocated more money for law enforcement and criminological research, they insisted, above all, that “the challenge of crime in a free society” could only be met by stressing prevention over punishment. “We will not have dealt effectively with crime until we have alleviated the conditions that stimulate it,” they wrote. Reflecting what would become an unfashionable belief that government intervention can alleviate social problems by means other than tax cuts or privatization, the president’s advisors asserted that the Great Society represented the best solution to crime:

[The Commission] has no doubt whatever that the most significant action that can be taken against crime is action designed to eliminate slums and ghettos, to improve education, to provide jobs, to make sure every American is given the opportunities and the freedoms that will enable him to assume his responsibilities.

Rather than building cellblocks, they called for building communities. Throwing down the gauntlet before the incipient law-and-order Right, LBJ’s best and brightest called “for a revolution in the way America thinks about crime.”

What they got was counterrevolution. By 1968, when the report was translated into law, Lyndon Johnson’s once formidable social-democratic coalition had fragmented, a casualty not only of Vietnam but of the riotous, long, hot summers at home. The domestic homicide rate was soaring, and as public anxiety mounted, resurgent Republicans and southern segregationist Democrats took control of the crime issue in Congress, drafting sweeping legislation that bore little resemblance to Johnson’s. Instead of crafting myriad federal programs, the revised bill would channel some $400 million into locally controlled “block grants” for law enforcement, a nod to states’ rights. Instead of “warring on poverty,” as the commissioners urged, the congressional package took aim at the Warren Court, eliminating restrictions on wiretapping and authorizing police to interrogate suspects without the pesky involvement of defense attorneys (Miranda v. Arizona had been decided in 1966).

Johnson’s allies disliked the bill—the New York Times decried the “vicious” legislation’s “sectional politics, facile solutions, and clearly discernable prejudices against the ignorant and the poor”—but after it motored through the House and Senate, the lame-duck president held his nose and signed. What had started out as an effort to outfox the Right—to commandeer Barry Goldwater’s divisive talking points to buttress the Left’s anti-poverty and civil rights agenda—had instead destabilized liberalism and shifted the national conversation from social services to just deserts.

Whether or not the final version of the quaintly named Safe Streets Act represented “a giant leap toward a police state,” as one contemporary feared, the law would serve as a blueprint for anticrime legislation from the late ’60s forward. Under President Nixon, who took Goldwater’s rhetoric about crime to the White House, and then under Presidents Reagan, Bush I, Clinton, and Bush the Crusader, the federal government promulgated ever harsher, more expansive, and more expensive versions of Johnson’s runaway bill. They declared and redeclared wars on drugs. They extended sentences, curtailed parole, facilitated capital punishment, hobbled judges and defense attorneys, and dispensed billions of dollars for prison construction. This was the story in Washington, but even harsher measures developed in the states—think New York’s Rockefeller drug laws or California’s three-strikes initiative—with the result that a prison nation grew up from the wreckage of the Great Society.

Even as the social safety net frayed—and then unraveled from the Reagan administration forward—America invested generously in criminal justice, especially prisons. Between 1970 and 2000, the U.S. inmate population increased sixfold. By 2008 the total surpassed 2.3 million, more than the populations of Boston, Washington, D.C., and San Francisco combined. The United States, a republic founded on the notion of liberty, became the most incarcerated nation on earth.

But why?

Social scientists have put forward a grab bag of answers. Some depict the transformation as a reasoned response to violence, others as a panicked reaction to cable news crime coverage. Some blame postwar economic restructuring, others the populist peculiarities of American democracy. Three recent books assert comprehensive explanations—one zeroing in on the cultural causes of criminal justice severity, one surveying the political geography of the prison boom, and one assessing the country’s changing terrain of law and governance. All three greatly enrich the conversation, but none are likely to settle the argument.

***

Sasha Abramsky’s American Furies (2007) is less a causal account of what he labels “the Age of Mass Imprisonment” than a cri de coeur against it. He laments that the guiding principles of U.S. social policy—with respect to criminal justice but also education, welfare, and taxes—have shifted from equal opportunity to stratification, from social integration to retribution, and he presents a wide-ranging examination of the consequences. A peripatetic journalist and author of two previous books on crime and punishment, Abramsky takes readers on a tour of America’s carceral landscape, from law-enforcement trade shows to corrupt private prisons to sweltering outdoor jails, and he shakes his head in dismay wherever he goes.

Abramsky finds particularly disturbing the decline of prisoner treatment programs and the ascendance of their antitheses, supermaximum-security control units, which have proliferated even more rapidly than conventional cellblocks. Designed to curtail prison disorder by stripping refractory prisoners of even vestigial human agency, these special housing units now contain tens of thousands of inmates, many of them severely mentally ill, in a state of almost perfect isolation. In the harshest facilities—places like California’s Pelican Bay or Texas’s Estelle High Security—prisoners are locked into spare concrete boxes for twenty-three hours a day; they take their meals through slots and experience human touch only to be shackled. Abramsky calls these places “storehouses of the living dead.”

Lawmakers and their constituents like to imagine that only the worst of the worst are subject to hardline, high-tech justice, but a substantial majority of prison and jail inmates in the United States, more than 1.3 million, have been convicted of non-violent offenses. According to a 2003 Human Rights Watch study coauthored by Abramsky, between 200,000 and 300,000 prisoners are mentally ill, with many more in jails. Even greater numbers have been snared by the War on Drugs. In 1967 the Katzenbach commission urged more money for drug treatment and even hinted at decriminalization of marijuana. But unyielding criminalization became the rule, such that drug offenses now account for roughly two million annual arrests, some 40 percent of them for pot possession. For those charged with dealing narcotics, especially crack cocaine, Abramsky reports that mandatory prison terms now routinely exceed those meted out to Nazi war criminals at Nuremberg.

Juveniles, too, are going to prison in record numbers. By 2003 more than one hundred thousand children under the age of eighteen were incarcerated in the United States. Most are held in juvenile facilities or reform schools, inventions of the Progressive Era, but in recent years, prosecutors and judges have diverted thousands of them to adult prisons. As Abramsky reports, Florida led the charge, attracting national attention for sentencing a twelve year-old to life without parole (later overturned) and for routinely charging school-age delinquents, from pot smokers to shoplifters, with adult felonies.

The new approach that emerged from the 1960s signaled not just a declining tolerance for risk and disorder in an increasingly atomized society, but also a sea change in public policy presumptions. No longer would criminal-justice institutions strive, however incapably, to reclaim and reintegrate lawbreakers. Instead, tough justice in the post-civil rights era would seek to segregate offenders from free society, subject them to extended controls, and, ultimately, relegate them to a permanently subordinate class of citizenship as defined by conviction status. This time, as before, race would figure prominently. “The harsh attitudes towards kids right now in the United States is a harsh attitude to black and Latino kids,” a juvenile justice expert tells Abramsky. “Those other kids.”

Mandatory prison terms now routinely exceed those meted out to Nazi war criminals at Nuremberg.

Abramsky puts the blame everywhere and nowhere. He assails conservative academics like James Q. Wilson, who distorted the admittedly mixed performance of prison treatment initiatives to imply that “nothing works” in the field of criminal rehabilitation. He censures the victims’ rights movement for channeling personal anguish into calls for public vengeance, and he condemns “Bible Belt fundamentalists” who preach “eternal damnation.” He dismisses law-and-order reactionaries as “media whores” and lambastes “rant radio” for feeding Americans “a diet of vitriol that would put some paranoid schizophrenics to shame.” Finally, he resorts to metaphor, invoking Hobbes, Hitler, and, for his title, Greek mythology. Having slept through the age of rehabilitation, Abramsky submits, an American incarnation of the blood-thirsty Erinyes, or Furies, “shook themselves out of their slumbers” in the 1970s and now hover over a land “consumed by its desire for revenge.” They have built Tartarus on earth.

***

This rendition of the punitive turn as mass hysteria is precisely the view that Ruth Wilson Gilmore, a professor at the University of Southern California, aims to counter in her book Golden Gulag (2007). A political geographer with a Marxist compass, she argues that super-sized imprisonment is more rational than emotional, more structural than cultural. It represents not just a rightward jag in political discourse, she holds, but a fundamental transformation of the country’s political economy.

Gilmore grounds her study on a single, exceptionally large and dynamic state: California. The choice both complicates and strengthens her claims. It creates difficulties because California, thanks largely to its powerful guard union, has resisted prison privatization and because neither the state nor private contractors make much use of convict labor. This limits opportunities for profit, Gilmore acknowledges, thereby undermining simplistic descriptions of a “prison industrial complex” or a “new slavery.”

On the other hand, California has experienced phenomenally expensive prison growth over the past three decades. Since Governor Jerry Brown signed legislation to fix sentencing and eliminate parole in 1977, the state’s prisoner population has shot up 790 percent. Since George Deukmejian took the helm in 1983, California has built twenty-four major new prisons, making its “golden gulag” the biggest state penal system in the United States. Once famous for its public universities, California’s largest state agency is now its department of corrections, with an annual budget of $10 billion.

Most analysts, including Abramsky, who wrote an engaging 2002 book on California’s crime panic, Hard Time Blues, attribute the state’s prison boom to political factors from the Reagan revolt to the three-strikes campaign. Gilmore, on the other hand, points to three types of “surpluses” that made it possible: land, labor, and capital. Rural land once used to grow crops for agribusiness now cultivates prisons, she finds, while chronic unemployment in urban areas helps produce the bodies to fill them. Prison construction, at $280 to $350 million a pop, has also put big money to work, not only in the traditional pork-contractor circuit, but by providing investors low-risk, tax-exempt government bonds. As the military-Keynesian order faltered in the 1970s, Gilmore asserts, a “prison fix” steadied the state-capitalist machine. Prison building was not a conspiracy, she says, but it did “put certain state capacities into motion, make use of a lot of idle land, get capital invested via public debt, and take more than 160,000 low-wage workers off the streets.”

Such reasoning may smack of economic determinism, but Gilmore’s book contains a welter of nuanced, well-researched insights. By following the money, she reveals who gains (Central Valley largeholders and municipal bond brokerages, among them) and who loses (impoverished residents in both rural and urban communities) in California’s prison construction frenzy. Because so much trickery was involved in the credit-market financing, she speculates that California’s crackdown may have been less populist than its ballot initiatives suggest; in short, voters never saw the bill.

Through careful case studies of two prison zones—Los Angeles, a convict exporter, and Corcoran, an inmate importer—Gilmore also shows how large-scale imprisonment constitutes a form of forced urban-to-rural migration; how tax dollars are unfairly diverted from blighted urban cores to withering farm towns; and how prison host communities, despite the transfer, rarely receive their promised economic windfall. As a rural development scheme, Gilmore counsels, imprisonment rarely delivers. The best paid employees commute rather than relocate, and family members who trek to visit their incarcerated loved ones rarely drop enough cash to stimulate the service sector.

Overall, Gilmore’s somewhat demanding text convincingly identifies powerful interests that lined up to haul California’s tough-on-crime bandwagon. What Golden Gulag fails to explain is why the band started playing in the first place.

***

Here Jonathan Simon, a Berkeley law professor, steps into the conversation, turning it from base to superstructure. His ambitious and carefully reasoned new book, Governing through Crime (2007), the most thought-provoking of the crop, argues that what sociologists are calling “mass imprisonment” (because such a large portion of the population is now involved) signals not only a new approach to managing crime, but to managing society.

In the criminal justice arena, Simon shows how prosecutors have gained power as courts have become “judgment machines,” constrained by mandatory sentencing, and how prisons, absent the promise of rehabilitation, have proliferated as “human toxic waste dumps.” The most innovative sections of his book, however, outline how an increasingly insular, risk averse, and punitive social ethic has reshaped not only how the other half lives but how the top half does as well.

In deunionized workplaces, he finds that blue and white-collar employees alike are subject to more surveillance, more restrictions on behavior (both on and off the clock), and more legalistic discipline than in the past. He regrets that in schools music and art classes have given way to metal detectors and locker searches. Even the family, he argues, has become “a nexus of crime.” On one hand, family members are regarded as potential criminals, a partial consequence of feminist campaigns against domestic violence. On the other, well-heeled parents spend heavily to fortify their homes against external threats, purchasing intruder-alert systems, nanny cams, and, if their teens stray, home drug testing kits. As much as the 5,000 prisons that now punctuate the American landscape, gated communities and battleship SUVs symbolize the birth of a fearful nation.

Americans’ collective reactions to violent crime—especially homicide, which rocketed upward in the 1960s, leveled off in the 1980s, and fell back toward earth in the 1990s—are so pervasive, Simon contends, that crime fighting has become a paradigmatic means of governing, a dominant pathway to authority and legitimacy for policymakers. Governors and presidents, even more so after 9/11, have increasingly posed as lawmen on the campaign trail, while crime victims have become an idealized class of citizens deemed especially worthy of government intervention.

The result is not only a bloated penal system but an erosion of civil society. As war (whether against crime or terror) becomes a leading metaphor for governing, as politicians swap civil liberties for the elusive promise of security, as sanctions replace supports in the nation’s social welfare toolkit, and as fear eclipses hope as an impetus to political action, the edifice of a free society quakes, Simon argues. “Governing through crime does not, and I believe, cannot make us more secure,” he writes. Instead, it cycles hundreds of thousands of troubled young people, “a shocking percentage of them descendants of . . . slaves,” through criminogenic jails. It “is making America less democratic and more racially polarized.”

Simon maintains that “the signal event marking the end of the Great Society era” and the rise of its punitive successor was the 1968 passage of the Safe Streets Act. “Crime was driving a stake through the heart of the Democrats’ urban coalition,” and the government’s response was to refabricate the welfare state into the penal state.

There were other options. Simon muses counterfactually that political leaders could have redoubled the war on poverty or launched determined campaigns against cancer or pollution. Any of these would have been preferable arenas for government mobilization, Simon says, and he is somewhat puzzled that policymakers did not see it that way. So he maps out obstacles along the roads not taken—corporate opposition to environmentalism and constitutional impediments to a European-style social welfare state, for instance—thus suggesting that crime prevailed at least partly by default, because it “offered the least political or legal resistance to government action.” But this depiction of the Great American Crime Crackdown as mere expedience minimizes its structural supports (Gilmore’s point), as well as its political utility, especially to the New Right (witness the Willie Horton ads of 1988 or this season’s insinuations that “Barack Hussein Obama” will be soft on terrorists).

As the perennial role of fear in racially charged political campaigns suggests, Simon might have expanded on an alternative explanation that he entertains but never fully endorses: that governing through crime developed largely as a reaction against civil rights. This is the argument described by Glenn Loury in a recent Boston Review essay, and there is considerable evidence for it. As Simon points out, it was states’-rights conservatives, inspired by George Wallace, who first seized on crime as a polarizing issue in national politics; the Republican Right thereafter picked up the baton and used it as a cudgel against liberalism for almost half a century. It was in the South, moreover, in the same jurisdictions that avidly resisted integration, where prison populations first started to grow (in the late 1960s vs. the mid-1970s nationally) and where they swelled most intensely; California may manage the largest state penal system in the country in absolute terms, but states like Louisiana, Georgia, and Texas have by far the highest rates of incarceration. Southern states, too, have taken the lead in resurrecting dour penalties that allude nostalgically to Jim Crow: chain gangs, striped uniforms, for-profit prisons, and reactivated death houses.

Simon’s categorization of history into distinct policymaking regimes also lends credence to this backlash hypothesis, though it requires an alternate interpretive lens. In Simon’s schema, political leadership has periodically coalesced to support favored groups of citizens that come to stand for the nation: yeoman farmers in the early republic, freedmen after emancipation, industrial workers in the Great Depression, and finally, victims of crime. The trouble with this genealogy of government assistance, however, is that it underemphasizes a grim counter-story. In truth, the helping hand of government has always been accompanied by a closed fist—with the latter all too often out front. In the Antebellum Era, slaveholders in fact commanded greater political influence than yeoman farmers, whatever the promises of Jacksonian Democracy. After the Civil War, it was the Klansman who ultimately prevailed over the agent of the Freedmen’s Bureau—and the robber baron who ended up on top. Out of the New Deal and World War II came not just stronger labor unions but McCarthyism and Taft-Hartley.

One of the reasons this alternative history of American repression is worth remembering is that it more logically leads to our punitive present. In a Whiggish storyline built around reform, America’s late twentieth-century prison boom materializes as a shocking, self-defeating aberration. If we redirect our spotlight from the history of social welfare to the equally pronounced, if less commemorated, history of social subjugation, however, mass imprisonment suddenly appears less inexplicable. Rather, it unfolds as the latest chapter in a centuries-long struggle between the ideal of equal citizenship and the reality of unequal power. It represents a reaction against democratic efflorescence akin to so many other reactions in U.S. history, from the Alien and Sedition Acts forward.

In particular, the late twentieth-century punitive turn bears troubling resemblance to another rightward pivot in American history, one that took place almost exactly a century before: the resurrection of neo-Confederate rule from the ashes of Reconstruction. Just as convict leasing, lynching, and finally segregation developed in the turbulent wake of emancipation and the first African-American freedom movement, mass imprisonment took hold in reaction to the second. Put simply, as white conservatives surrendered on integration, they insisted on getting much tougher on crime, to which they symbolically chained a host of developments they found troubling, from civil disobedience to urban rebellions.

The consequence was unprecedented prison growth, but of a particular sort. In 1960 the U.S. prison population was 60 percent white. By 2005 it was 70 percent non-white. By most measures of racial disparity, American criminal justice is more separate and unequal today than it was when Martin Luther King proclaimed from the Lincoln Memorial: “Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice.”

This contextualization of the prison boom within the tragically conflicted saga of American race relations matters not so much because it offers a singular, definitive account of causation, but because it helps point the way forward. If racially skewed prison warehousing represents the latest incarnation of American racism, then political mobilization and social transformation on the scale of the civil rights movement may be necessary to dislodge it.

***

At the close of the Bush era, there are scattered signs that America’s prison paroxysm may have run its course. Although the country’s inmate population continues to rise (climbing 16 percent between 2000 and 2006, not counting the advent of U.S. detention abroad, from Guantánamo to Bagram), budget crises are forcing an array of politicians to reckon with what their tough-on-crime posturing has created. In New York the state assembly has been revising the Rockefeller drug laws to make them more forgiving. In Kansas, parole officers are no longer automatically reincarcerating their charges for low-level violations like failing a urine test. In Iowa lawmakers are requiring that all new sentencing laws be assessed for potentially negative racial impacts, and in Nevada politicians have started rolling back mandatory minimums. Across the country and on both sides of the aisle, increasing numbers of policymakers are starting to agree with Supreme Court Justice Anthony Kennedy, who told the American Bar Association in 2003 that “our resources are misspent, our punishments too severe, our sentences too long.”

Navigating these uncertain waters, Abramsky, Gilmore, and Simon all conclude with guarded hope. Although California’s penal system has become one of the nation’s most crowded and dysfunctional in recent years, Abramsky cautiously praises Governor Schwarzenegger for revisiting the concept of prison-based rehabilitation. (Not long after American Furies went to press, the governor proposed sending 22,000 inmates home early to save money.) For his part, Simon hopes that aging baby boomers and the Katrina debacle will force a redirection of government attention from crime control to health care and infrastructure, a shift he believes will reinforce rather than erode social solidarity and public trust. Gilmore closes with a glowing case study of the grassroots political action group Mothers Reclaiming Our Children, an organization with almost no resources that has formulated a far-reaching anti-racist agenda that Gilmore proffers as a template for anti-prison activists everywhere. At the same time, nonprofits like the Sentencing Project and the Criminal Justice Policy Foundation have produced a blizzard of white papers proposing how carefully calibrated treatment programs, a return to judicial discretion, alternatives to incarceration, and robust reentry programs can enhance public safety while cutting costs. Bruce Western discusses some of these proposals in this issue.

Katzenbach said, "I'm old and maybe I can't learn new ideas, but I think our criminal justice system has to be rational and fair."

One of the most ambitious of these non-governmental efforts, the Commission on Safety and Abuse in American Prisons, was headed by none other than Nicholas Katzenbach, now in his eighties. Forty years had passed since he first surveyed American criminal justice on behalf of the country’s last liberal administration, when in 2005 he was asked by the Vera Institute, a mid-size think tank, to undertake a limited follow-up. What Katzenbach found appalled him. Over the decades, state and federal policymakers had indeed acted on most of his original recommendations but had invariably done the opposite. The outcome, he and his small staff concluded after a round of national hearings, was that the hard end of the criminal justice system had grown larger, meaner, and, in their view, more socially corrosive. Prison turbulence had declined since the late ’60s, but rape, crowding, infectious disease, and acute mental illness remained endemic—and on a monumental scale. Each year, some 13.5 million people cycle through the country’s adult jails and prisons, they observed. They go in “poor, undereducated, and unhealthy,” and they come out worse.

With a constricted mandate to study only prison conditions, Katzenbach’s second survey coupled strong criticisms—“We should be astonished by the size of the prisoner population, troubled by the disproportionate incarceration of African-Americans and Latinos, and saddened by the waste of human potential”—with sensibly modest policy recommendations: more funding for corrections staff, better health care, independent oversight, and less reliance on supermax isolation.

Yet critics of America’s criminal justice system—which now devours $204 billion a year and circumscribes 7.2 million lives, counting offenders on probation and parole—would do well to spend more time with Katzenbach’s original report than its cautious sequel. In the first study, this early advocate for civil rights within the Justice Department, who once famously faced down George Wallace at the schoolhouse door, called not only for more professional, more treatment-oriented prisons, but fewer of them. Imprisonment should be a sanction of last rather than first resort, he proposed. At the same time, he and his first commissioners advocated a more expansive understanding of crime: “The criminal justice system has great potential for dealing with individual instances of crime, but it was not designed to eliminate the conditions in which most crime breeds.” “It needs help,” they argued, in the form of better schools, better housing, better jobs, and genuinely equal citizenship.

In a phone interview, Katzenbach, whose memoir Some of It Was Fun: Working with RFK and LBJ will be published this fall, says that he still believes this Great Society approach is the best one. “I’m old and maybe I can’t learn new ideas, but I think our criminal justice system has to be rational and fair,” he told me. “Harsh punishment is satisfying, but our system has to do more than that. It ought to reflect the type of society we want to be. It ought to stand for decency.”

In 1967 Katzenbach titled his report “The Challenge of Crime in a Free Society,” and he still contends in his forthcoming autobiography that “every law has to satisfy both sides of the equation”—it needs to confront lawlessness but also safeguard civil liberties and social justice. To do so, as Katzenbach proposed more than a generation ago, will require more than technocratic remedies confined to the criminal justice arena. We will need to embark upon “a revolution in the way America thinks about crime.”

Posted by lois at 09:28 PM | Comments (0)

Boston Review: 3 articles in Special Issue including: : "No Further Harm: What we owe to incarcerated fathers", "Guarded Hope:Lessons from the history of the prison boom" and "Reentry: Reversing mass imprisonment"

JULY/AUGUST 2008--- Boston Review
all at:
http://bostonreview.net/BR33.4/prison.php

No Further Harm
What we owe to incarcerated fathers by Mary Fainsod Katzenstein and Mary Lyndon Shanley
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Guarded Hope
Lessons from the history of the prison boom by Robert Perkinson
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Reentry
Reversing mass imprisonment by Bruce Western

The British sociologist T.H. Marshall described citizenship as the “basic human equality associated with full membership in a community.” By this measure, thirty years of prison growth concentrated among the poorest in society has diminished American citizenship. But as the prison boom attains new heights, the conversation about criminal punishment may finally be shifting.

For the first time in decades, political leaders seem willing to consider the toll of rising incarceration rates. In October last year, Senator Jim Webb convened hearings of the Joint Economic Committee on the social costs of mass incarceration. In opening the hearings, Senator Webb made a remarkable observation, “With the world’s largest prison population,” he said, “our prisons test the limits of our democracy and push the boundaries of our moral identity.” Like T.H. Marshall, Webb recognized that our political compact is based on a fundamental equality among citizens. Deep inequalities stretch the bonds of citizenship and ultimately imperil the quality of democracy. Extraordinary in the current political climate, Webb inquired into the prison’s significance, not just for crime, but also for social inequality. The incarceration bubble has not burst yet, but Webb’s hearings are one signal of a welcome thaw in tough-on-crime politics.

There are now 2.3 million people in U.S. prisons and jails, a fourfold increase in the incarceration rate since 1980. During the fifty years preceding our current three-decade surge, the scale of imprisonment was largely unchanged. And the impact of this rise has hardly been felt equally in society; the American prison boom is as much a story about race and class as it is about crime control. Nothing separates the social experience of blacks and whites like involvement in the criminal justice system. Blacks are seven times more likely to be incarcerated than whites, and large racial disparities can be seen for all age groups and at different levels of education. One-in-nine black men in their twenties is now in prison or jail. Young black men today are more likely to do time in prison than serve in the military or graduate college with a bachelor’s degree. The large black-white disparity in incarceration is unmatched by most other social indicators. Racial disparities in unemployment (two to one), nonmarital childbearing (three to one), infant mortality (two to one), and wealth (one to five) are all significantly lower than the seven to one black-white ratio in incarceration rates.

Though lurid portrayals of black criminality are easy to find on the local news or reality TV, the deep class divisions in imprisonment may be less apparent. Nearly all the growth in imprisonment since 1980 has been concentrated among those with no more than a high school education. Among young black men who have never been to college, one in five are incarcerated, and one in three will go to prison at some time in their lives. The intimate link between school failure and incarceration is clear at the bottom of the education ladder where 60 percent of black, male high school dropouts will go to prison before age thirty-five. The stigma of official criminality has become normal for these poorly educated black men, and they are thereby converted from merely disadvantaged into a class of social outsiders. These astonishing levels of punishment are new. We need only go back two decades to find a time when imprisonment was not a common event in the lives of black men with less than a college education.

***

The effects of the prison are not confined within its walls. Those coming home from prison, now about 700,000 each year, face an narrowed array of life chances. Mostly returning to urban neighborhoods of concentrated poverty, men with prison records are often out of work. The jobs they do find pay little and offer only a fraction of the earnings growth that usually supports the socially valuable roles of husband and breadwinner. Ex-prisoners are often in poor health, sometimes struggling with mental illness or chronic disease. A University of California, Berkeley study attributes most of the black-white difference in AIDS infection to racial disparities in incarceration. In many cases people with felony records are denied housing, education, and welfare benefits. In eleven states they are permanently denied the right to vote.

The social penalties of imprisonment also spread through families. Though formerly incarcerated men are just as likely to have children as other men of the same age, they are less likely to get married. Those who are married will most likely divorce or separate. The family instability surrounding incarceration persists across generations. Among children born since 1990, 4 percent of whites and 25 percent of blacks will witness their father being sent to prison by their fourteenth birthday. Those children, too, are to some extent drawn into the prison nexus, riding the bus to far-flung correctional facilities and passing through metal detectors and pat-downs on visiting day. In short those with prison records and their families are something less than full members of society. To be young, black, and unschooled today is to risk a felony conviction, prison time, and a life of second-class citizenship. In this sense, the prison boom has produced mass incarceration—a level of imprisonment so vast and concentrated that it forges the collective experience of an entire social group.

Viewed in historical context, mass incarceration takes on even greater significance. The prison boom took off in the 1970s, immediately following the great gains to citizenship hard won by the civil rights movement. Growing rates of incarceration mean that, in the experience of African-Americans in poor neighborhoods, the advancement of voting rights, school desegregation, and protection from discrimination was substantially halted. Mass incarceration undermined the project for full African-American citizenship and revealed the obstacles to political equality presented by acute social disparity.

Skeptics may concede that mass incarceration injured social justice, but surely, they would contend, it contributed to the tremendous decline in crime through the 1990s. Indeed, the crime decline of the ’90s produced a great improvement in public safety. From 1993 to 2001, the violent crime rate fell considerably, murder rates in big cities like New York and Los Angeles dropped by half or more, and this progress in social wellbeing was recorded by rich and poor alike. Yet, when I analyzed crime rates in this period, I found that rising prison populations did not reduce crime by much. The growth in state imprisonment accounted for 2-5 percent of the decline in serious crime—one-tenth of the crime drop from 1993 to 2001. The remaining nine-tenths was due to factors like the increasing size of local police forces, the pacification of the drug trade following the crack epidemic of the early 1990s, and the role of local circumstances that resist a general explanation.

So a modest decline in serious crime over an eight year period was purchased for $53 billion in additional correctional spending and half a million new prison inmates: a large price to pay for a small reduction. If we add the lost earnings of prisoners to the family disruption and community instability produced by mass incarceration, we cannot but acknowledge that a steep price was paid for a small improvement in public safety. Several examples further demonstrate that the boom may have been a waste because crime can be controlled without large increases in imprisonment. Violent crime in Canada, for example, also declined greatly through the 1990s, but Canadian incarceration rates actually fell from 1991 to 1999. New York maintained particularly low crime rates through the 2000s, but has been one of the few states to cut its prison population in recent years.

More importantly, perhaps, the reduction in crime was accompanied by an array of new problems associated with mass incarceration. Those states that have sought reduced crime through mass incarceration find themselves faced with an array of problems associated with overreliance on imprisonment. How can poor communities with few resources absorb the return of 700,000 prisoners each year? How can states pay for their prisons while responding to the competing demands of higher education, Medicaid, and K-12 schools? How can we address the social costs—the broken homes, unemployment, and crime—that can follow from imprisonment? Questions such as these lead us to a more fundamental concern: how can mass imprisonment be reversed and American citizenship repaired?

***

We can begin to tackle these issues by understanding how we got here. The origins of today’s mass incarceration can be traced to basic political and economic shifts in the 1960s. On the economic side, the prison population swelled following the collapse of the urban manufacturing industry and subsequent cascade of social ills that swept poor inner-city neighborhoods. Serious crime—the traditional target of the penal system—was an important part of these urban social problems. Murder rates in large cities grew dramatically from 1965 to 1980. But in addition to the problem of serious crime, the penal system was used to manage many of the byproducts of persistent poverty: untreated drug addiction and mental illness, homelessness, chronic idleness among young men, and social disorder. It was the management of these social problems, not serious crime, that fuelled incarceration rates for drug users, public-order offenders, and parole violators.

As the social crisis of urban America supplied the masses for mass incarceration, the penal system itself became more punitive. The tough-on-crime message honed by the Republican Party in national politics since the Goldwater campaign of 1964 spoke to the racial anxieties of white voters discomfited by civil rights protests and summertime waves of civil unrest felt in cities through the decade. Conservatives charged that liberals coddled criminals and excused crime with phony root causes like poverty and unemployment. President Nixon launched a war on crime, only to be surpassed by President Reagan’s War on Drugs, which applied the resources of federal law enforcement to the problem of drug control. Policy experts abandoned rehabilitation, concluding that prisons could only deter and warehouse those who would otherwise commit crime in society. These politics produced a revolution in criminal sentencing. Mandatory minimum prison sentences, sentencing guidelines, parole abolition, and life sentences for third-time felons were widely adopted through the 1980s. The no-nonsense, tough-on-crime politics reached a bipartisan apotheosis with President Clinton’s 1994 crime bill, which launched the largest prison construction project in the nation’s history. As a result of these changes, prison time—as opposed to community supervision—became the main criminal sanction for felony offenders.

The failure of the great experiment in mass incarceration is rooted in three fallacies of the tough-on-crime perspective. First, there is the fallacy of us and them. For tough-on-crime advocates, the innocent majority is victimized by a class of predatory criminals, and the prison works to separate us from them. The truth is that the criminals live among us as our young fathers, brothers, and sons. Drug use, fighting, theft, and disorderly conduct are behavioral staples of male youth. Most of the crime they commit is perpetrated on each other. This is reflected most tragically in the high rates of homicide victimization among males under age twenty-five, black males in particular. Some young men do become more seriously and persistently involved in crime, but neither the criminal-justice system nor criminologists can predict who those serious offenders will be or when they will stop offending. Thus the power to police and punish cannot separate us from criminals with great distinction, but instead flows along the contours of social inequality. Visible markers like age, skin color, and neighborhood become rough proxies for criminal threat. Small race and class differences in offending are amplified at each stage of criminal processing from arrest through conviction and sentencing. As a result the prison walls we built with such industry in the 1980s and ’90s did not keep out the criminal predators, but instead divided us internally, leaving our poorest communities with fewer opportunities to join the mainstream and deeply skeptical of the institutions charged with their safety.

Second, there is the fallacy of personal defect. Tough-on-crime politics disdains the criminology of root causes and traces crime not to poverty and unemployment but to the moral failures of individuals. Refusing to resist temptation or defer gratification, the offender lacks empathy and affect, lacks human connection, and is thus less human than the rest of us. The diagnosis of defective character points to immutable criminality, stoking cynicism for rehabilitative efforts and justifying the mission of semi-permanent incapacitation. The folk theory of immutable criminality permits the veiled association of crime with race in political talk. But seeking criminality in defects of character, the architects of the prison boom ignored the great rise in urban youth unemployment that preceded the growth in murder rates in the 1960s and ’70s. They ignored the illegal drug trade, which flourished to fill the vacuum of legitimate economic opportunity left by urban deindustrialization. They ignored, too, the fact that jobs are not just a source of economic opportunity but of social control that routinizes daily life and draws young men into a wide array of socially beneficial roles. Lastly, they ignored the bonds of mutual assistance that are only weakly sustained by communities of concentrated poverty. Thus young men would return home from prison only to easily surmount once again the same stunted social barriers to crime that contributed to their imprisonment in the first place.

The final fallacy of the tough-on-crime perspective is the myth of the free market. The free market fallacy sees the welfare state as pampering the criminal class and building expectations of something for nothing. Anti-poverty programs were trimmed throughout the 1970s and ’80s, and poor young men largely fell through the diminished safety net that remained. For free marketeers, the question was simply whether or not to spend public money on the poor—they did not anticipate that idle young men present a social problem. Without school, work, or military service, these poor young men were left on the street-corner, sometimes acting disorderly and often fuelling fears of crime. We may have skimped on welfare, but we paid anyway, splurging on police and prisons. Because incarceration was so highly concentrated in particular neighborhoods and areas within them, certain city blocks received millions of dollars in “correctional investment”—spending on the removal of local residents by incarceration. These million-dollar blocks reveal a question falsely posed. We never faced a choice of whether to spend money on the poor; the dollars diverted from education and employment found their way to prison construction. Our political choice, it turned out, was not how much we spent on the poor, but what to spend it on.

***

Getting tough on crime created a sustained public policy mistake of immense proportions. If the prison boom was indeed produced by a historic collision between the jobless ghetto and a punitive politics of civil rights backlash, retreating from mass incarceration will involve equally fundamental shifts in politics and economics. What would a new politics of criminal justice look like, and what policies would it promote?

There are small signs of change in the public conversation about crime, punishment, and poverty, though bold ideas have not yet penetrated the mainstream. By supporting education and treatment programs for prisoners, leaders from both parties have offered one answer to Senator Webb’s question about the future of punishment in America. In April this year, President Bush signed the Second Chance Act, which funds literacy programs, drug treatment, and other services for prisoners and ex-prisoners. While prison reform advocates supported Second Chance, a bipartisan majority was ensured by Christian conservatives like Kansas Republican Sam Brownback, who spoke up for a law that promoted a message of redemption and faith-based prison programs.

Second Chance can be viewed as one achievement in a broader movement for improved prisoner reentry policy. Jeremy Travis, president of John Jay College of Criminal Justice in New York, has been a leading voice in naming the social problem of prisoner reentry and proposing policy solutions. In his 2005 book But They All Come Back Travis writes: “The reality of mass incarceration translates into the reality of reentry . . . [T]he harmful effects of high rates of incarceration and reentry call for . . . policies that promote reintegration, not retribution.” Here the reentry movement challenges mass incarceration by reasserting the importance of rehabilitation, but deliberately stops short of recommending a reduction in prison populations.

If the employment problems of young minority men in poor urban neighborhoods are a prime precondition for mass incarceration, prisoner reentry programs that promote employment may offer a way out of the street-prison cycle in which so many are caught. A wide variety of programs aim to help people move from prison to the labor market. GED classes, vocational training, prison work-programs, and job readiness instruction all seek to improve prisoners’ preparation for working life. In part, the wide variety of programs reflects the sheer range of behavioral and cognitive deficits of the prison population.

Perhaps the greatest challenge for these programs is that many men and women coming out of prison—most in their thirties or older—have never held a steady job. The newly released behave awkwardly around coworkers and have never cultivated daily work habits; these shortcomings may be no less debilitating than illiteracy or a shortage of vocational skills. Social scientists refer to the necessary traits of reliability, motivation, and sociability as “non-cognitive skills.” While education programs in prison can help develop the cognitive skills of math and verbal ability, the non-cognitive skills that promote success in free society are hard to develop while incarcerated. To learn these skills, people coming out of prison must repeatedly rehearse the habits of regular work. But precisely because they have so little work experience and carry the added penalty of a criminal record, formerly incarcerated men and women have little access to the steady jobs that can make them more productive. For ex-prisoners, extreme economic insecurity is a trap that prevents them accumulating the kind of work experience that enables a return to mainstream social life.

Building everyday work habits means working every day; instead of relying only on a wary labor market, some programs try to break the cycle of economic insecurity by offering jobs immediately after release from prison. The Center for Employment Opportunities (CEO) in New York provides transitional jobs in combination with job placement services to move prisoners into the open labor market. CEO takes people straight out of prison, and puts them in a week-long training program before assigning them to a seven-hour day, four-day week in small supervised crews doing groundskeeping and other manual work at the New York minimum wage of $7.15 an hour. On the fifth day of each week, the CEO participants take vocational and job readiness classes that prepare them for job searching and interviews. CEO’s transitional jobs generally last a month or two and program graduates receive transport and supermarket vouchers if they remain employed.

CEO, in a move rare among reentry programs, has sought to study the effectiveness of its program through experimentation. The experiment randomly assigned parolees either to transitional jobs or to a control group composed of former inmates who received job-search assistance from the support staff, but not transitional work. Parolees who took on transitional jobs within three months of release from prison saw their arrest rates reduced by about 20 percent compared to the control group. However, parolees who entered the transitional jobs more than 3 months after prison release experience no reductions in recidivism. It seems that timely intervention, immediately after prison, provides the greatest benefits.

CEO’s method shows promising results, but is narrowly directed toward alleviating unemployment. A small but intensive program run by the Brooklyn District Attorney suggests how a more comprehensive program might operate. Charles “Joe” Hynes is unusual among prosecutors. He actively incorporates alternatives to incarceration into the work of his office. Beginning in 1990 Hynes promoted a diversion program that sent nonviolent drug offenders to substance abuse treatment instead of prison. By the later part of the decade, the D.A. was convening regular meetings of community groups throughout Brooklyn to connect parolees and probationers to drug treatment, housing, and jobs.

The meetings were run by Hynes’s energetic First Assistant District Attorney, Patricia Gatling. Gatling did not saw the D.A.’s role as simply seeking the toughest justice for Brooklyn’s criminal defendants. In her view, the D.A. is a community lawyer, charged with strengthening neighborhoods and improving public safety in a broad sense. The community meetings in Brooklyn’s poor neighborhoods were Gatling’s effort to replenish the area’s flagging social capital—the web of networks and supports that greases the wheels of social life. After a few years, Hynes hired a full-time social worker and developed his own prisoner reentry program. At first it operated only in a few precincts with high parole caseloads, but later it spread across the whole borough.

Called ComALERT (Community and Law Enforcement Resources Together), the program provides parolees with drug treatment, transitional employment, and housing. Most ComALERT participants, have prior convictions for drugs or violence, and all have been ordered into drug treatment. Some homeless parolees enter the Ready Willing and Able (RWA) program that provides a full year of employment and supportive housing in return for a promise of complete drug and alcohol abstinence and a biweekly regime of drug testing. RWA participants work in street cleaning and other unskilled jobs for $7.50 an hour, share small apartments, and receive drug counseling and educational programming. A recent evaluation found that two years after release from prison, ComALERT clients were 18 percent less likely to be rearrested than a comparison group with a similar history of crime and drug use. ComALERT participants also earned about $1000 more each quarter and were about 20 percent more likely to be employed.

A large-scale effort to assist the reintegration of those coming home from prison can be justified on the grounds of restoring citizenship to America's new carceral class.

These positive outcomes suggest three policy lessons. First, transitional jobs are large-dose interventions that can reduce recidivism at least for a while by providing close supervision and paying wages. Regular work habits cannot be built cheap, though these programs are still less expensive than incarceration. Second, the programs that work best are comprehensive, bundling together a variety of services including drug treatment and housing. Because released prisoners often cope with a range of problems, additional supports must be in place for transitional jobs to help. Third, timely intervention is imperative; successful schemes provide a job immediately out of prison.

While the results from transitional jobs and supplementary programs are encouraging, we must be realistic about what these projects can achieve. Most initiatives operate at the local level. Sometimes their efforts span a city, but more often several neighborhoods. The high quality results that stem from local efforts will not scale to counties and states. Even in the best-case scenario, if recidivism is reduced by 10 or 20 percent, ex-prisoners would still be re-arrested at rates of around 40 percent or more.

Still, a large-scale effort to assist the reintegration of those coming home from prison can be justified on the grounds of restoring citizenship to America’s new carceral class. Instead of focusing assessment of reentry programs narrowly on the decrease in recidivism achieved, we should account for the benefits of families reunited, the paychecks that help support the children of ex-prisoners, and the value of literacy for its effects on quality of life in addition to its role in averting crime. The cost-benefit calculus looks quite different when we include these social goods. For nonviolent drug and public-order offenders, intensive, large-dose treatment in the community (which is relatively cheap) begins to look like a good alternative to custody in prison (which is expensive). Here we count as benefits not just reductions in crime, which may be modest, but all the ways in which social life is made more normal by drawing our erstwhile outsiders back into society, instead of building more walls to keep them out.

***

What would a different kind of penal system look like: one that viewed the unemployment of ex-prisoners as a key problem to solve and the deficit of noncognitive skills a central obstacle to steady work? Projecting our exemplary local programs on to the national stage, all parolees leaving prison in need of a job would move into closely supervised community-service work paying minimum wage. Like Brooklyn’s RWA program, these jobs might be offered for up to a year and coupled to job placement with the goal of parolee self-sufficiency. Those with drug problems would enroll in a rigorous program of treatment and testing. Those living on the streets would move into supportive housing.

How many would participate in this national reentry program, and at what cost? Employment statistics for prisoners suggest a national transitional jobs program would enroll about 180,000 out of the 700,000 prisoners released each year. Around 200,000 would fill new places in drug treatment programs. Another 100,000 would require housing. A national program of transitional jobs, drug treatment, and supportive housing would represent a significant expansion of the social services available to ex-prisoners. The total cost of this effort would be about $7 billion each year, roughly one-tenth of total current spending on corrections. In the present climate such a program seems entirely fanciful—how could we pay for it?

One source of funds is the vast treasury expended on large-scale incarceration itself. By cutting the size of prison populations and redirecting some of the spending on custody to community programs, we could dramatically expand services to prisoners after they have been released. Unlocking America, a recent proposal from the Washington, D.C.-based JFA Institute, recommends four ways to reduce the size of prison populations.

First, Unlocking America recommends decriminalizing drug offenses and other “victimless” crimes. The authors argue that arresting drug dealers has no crime reducing effect because new dealers will fill the vacancies opened by incarceration. Since the mid-1990s, prominent conservatives, too, have supported the view that incarceration for drug dealing fails to curb the drug trade. In 1995 John DiIulio and Anne Piehl—the former would become an appointee in the second Bush administration—wrote that their “best estimate of the incapacitation effect (number of drug sales prevented by incarcerating a drug dealer) is zero,” and they therefore “value drug crimes (sales and possession) at zero social cost.” Though the War on Drugs failed to reduce drug use or the prices of drugs, it boosted incarceration and racial disparity. Drug convictions account for about a third of the increase in state prison populations and about three-quarters of the increase in the federal prison population through the 1980s and ’90s.

Second, time served in prison can be reduced. In the mid-1970s prisoners were incarcerated for relatively short periods, given their offenses. Since then, life sentences have become common for violent offenders and those with prior felony convictions. Three-strikes provisions add long stretches of prison time for repeat convicts. Truth-in-sentencing requires felony offenders to serve at least 85 percent of their sentences. These measures serve to lengthen prison time account for about half of the growth in state prison populations over the last twenty years.

Third, the length of probation and parole-supervision periods could also be reduced. People on probation and parole are likely to return to prison, but usually as a result of a technical violation, not a new crime. Unlocking America finds little evidence that lengthy parole and probation terms reduce crime. Probationers and parolees are most likely to fail in the first twelve months. After that first year, the authors write, “supervision is more of a nuisance than a means for assisting people after prison or preventing them from committing another crime.”

Finally, the authors argue that re-imprisonment should be eliminated for technical violations of parole and probation. Parolees and probationers are released to the community subject to a large number of conditions that typically include employment, drug testing, and regular meetings with case officers. When they violate these conditions, supervising officers can send them back to prison. Many parolees and probationers are sent back to prison for failing a drug test or missing an appointment—their reappearence behind bars may have nothing to do with crime. Incarceration for technical violations of parole or probation was a significant driver of state imprisonment rates through the 1990s. In some states, like California, most of those on parole are re-incarcerated for technical violations, adding a year or more to their time in prison.

Of all the proposals to reduce prison populations, restricting re-incarceration for technical parole violators seems most politically feasible. Some states are already trying to reduce parole revocation, sometimes by imposing more intensive community supervision or a few days in lock-up instead of months and years in prison. Kansas now conducts a risk assessment for parolees. Some are assigned to a low-risk group that receives only loose supervision. Case managers place high-risk parolees in special programs, and enforce a variety of punishments short of return to prison. Since adopting these measures in 2003, Kansas has halved the number of parole violators. Half a dozen other states, like Arizona, Illinois, New York, and Texas, have also adopted a system of graduated sanctions to reduce parole revocation. At the national level, eliminating re-incarceration for technical violations would reduce prison admissions by about 30 percent each year. By itself this measure could save much of the funds needed for a national prisoner reentry program.

Eliminating re-incarceration for technical violations would also support a reintegrative model of corrections. Given that over half of state prisoners struggle with problems of drug addiction, we should anticipate that many will fail and become involved again in drugs or miss work or parole appointments. These failures should be viewed as a component of reentry. Relapse is part of a learning process in which new non-cognitive skills of reliability and persistence develop. If failure is a likely stop on the path to steady work, parole supervision must also allow people to fail and remain in their communities.

***

So far I have argued that we can edge away from mass incarceration by promoting two kinds of policies: expanding support for the reentry of prisoners into society and scaling down the size of the prison population. The two steps are linked; we expand our support for ex-prisoners in the community by using incarceration more sparingly and revoking freedom less willingly. Money that we now spend on prison can be spent on treatment and jobs.

There are more advocates now for reentry programs than decarceration, but a real policy debate over the future of mass incarceration has barely begun. Though Congress dipped a toe in the pool of reintegrative criminal justice by passing the Second Chance Act, a national large-dose reentry program is a much larger effort. Faced with mounting correctional budgets, governors in Kansas and elsewhere have experimented with parole reform. Some states are also considering sentencing reforms. Commissions in New York and California are now reviewing three-strikes and mandatory minimums. Despite these signs of change, the reform process remains in its infancy. Few correctional facilities have closed, and incarceration rates continue to rise.

While an expanded reentry policy and a revision of the penal codes may stop the growth of prisons, the future of mass incarceration depends very much on its past. A less punitive criminal justice system cannot by itself solve the deep social problems of poor urban neighborhoods. These problems—disorder and addiction largely flowing from chronic idleness—set in motion the politics and policy choices that delivered mass incarceration. As America’s meager welfare state failed to prevent school dropout and persistent unemployment among unskilled inner-city residents, prisons and jails expanded to fill the vacuum of social control formerly occupied by the education system and the labor market. The police, the courts, and correctional administrators were charged with solving the social problems of idleness, addiction, and mental illness, while also controlling their natural jurisdiction over serious crime. But they were given just a few tools: the powers of arrest and imprisonment. Mass incarceration contains an unruly population beset with trouble; wholesale confinement makes the population more manageable but leaves their troubles undiminished.

To expect a rehabilitative criminal justice alone to reverse mass incarceration is, in an odd way, to repeat the mistakes of the tough-on-crime movement. We would again be turning to line officers to manage the byproducts of deep social inequalities. While we might spend billions on a jobs program for former prisoners, we would still send them out to look for work in labor markets where half of the young men are jobless. We would still be asking them to stay sober amid a thriving street trade in illegal drugs. This is what prisoners mean when they say they are set up to fail. This is not just a recidivist’s special pleading: it reflects the deficiencies of a theory in which society’s losers have only themselves to blame.

The police, the courts, and correctional administrators were charged with solving social problems, but their only tools were the powers of arrest and imprisonment.

Reversing mass incarceration will ultimately require that social problems be solved with social policies. The two most urgent priorities are the prevention of school dropout and the creation of a viable and legitimate economy in poor inner-city neighborhoods. Not even the most rehabilitative criminal justice policy can solve these problems. We normally think of education and employment as sources of economic opportunity. In the era of mass incarceration, we also see that they are positive sources of social control, providing order in people’s daily lives.

School failure and joblessness, of course, lie deep at the core of American urban inequality. Even if our policy knowledge is equal to these problems, the political will is weak, especially since carceral stigma now clouds the neighborhoods of the urban poor. It seems unlikely under these conditions that communities of concentrated poverty will somehow launch new programs of urban renewal or that middle class voters will discover sympathies for the poor. Are new efforts at social investment impossible?

The upcoming election season holds more promise for an expanded social policy than we have seen in years. The coming debate over national health insurance holds enormous significance for communities most affected by mass incarceration. If a plan emerges that covers treatment for substance abuse, mental health problems, and chronic disease, and if the plan is truly universal, carrying no exclusions for those in prison or with felony convictions, it can significantly improve the lives of those entangled in the penal system. By aiming to cover everyone, national health insurance creates a common cause between the urban poor wracked by mass incarceration and the suburban middle class. We have recently seen this kind of cross-class support in defense of Social Security—a universalistic and venerated institution operating with great anti-poverty effect. Supporters repelled the threat of privatization not because Social Security slashes poverty among the elderly, but because it guarantees the material dignity of all citizens in retirement.

Policies narrowly tailored only to the needs of released prisoners can at best attract the support of altruists and the poor themselves. The ineffectiveness of these constituencies is reflected in the quality of these targeted policies as they currently stand. But by actively constructing the common citizenship of the poor and the middle class, a universal social policy provides a powerful force for social integration.

***

Nearly a century ago, Eugene Debs, at his sentencing under the Sedition Act in 1918, offered a moving account of the moral significance of the prison. “Your Honor,” he said, “years ago I recognized my kinship with all living beings, and I made up my mind that I was not one bit better than the meanest on earth. I said then, and I say now, that while there is a lower class, I am in it, while there is a criminal element, I am of it, and while there is a soul in prison, I am not free.” Debs’s vision was radically egalitarian. Because we are joined by a common humanity, the imprisonment of one incarcerates us all.

Be it health care, education, or job opportunities, universal provision in any domain of public policy—and the bonds of citizenship on which that sense of universality is built—joins us to a common destiny, and might be the best chance for the redevelopment of urban schools and labor markets. If the duty of the citizen is to stay in school and go to work, then the political will to maintain good schools and promote employment is woven into the social fabric. This political logic implies that special projects targeting special populations will not do the job. If poor schools are to improve, it is more likely they will do so as a result of an effort to improve educational opportunity nationwide. If we are to promote jobs for unskilled men in the inner-city, the attempt will receive its greatest impetus from a national employment policy that aims to improve the working lives of all citizens.

Clearly we are not there yet. The norms of good citizenship, however, develop in tandem with the institutions of civic life. Political will can grow in small increments led by the promotion of institutions that provide on the basis of Marshall’s “basic human equality.” Such a renewal of an authentically American social citizenship would sweep away the jobless ghetto and the mass incarceration that it has spawned.

Posted by lois at 07:10 PM | Comments (0)

July 07, 2008

CA: Aging prisoners add to prison strain in Calif.

Aging inmates add to prison strain in Calif.
By DON THOMPSON - Associated Press Writer
Published 9:07 am PDT Saturday, July 5, 2008

Louis Rodriguez, a lifelong thief, is costing California taxpayers a lot of money.

And so are others like him, aging criminals locked away for life or extended sentences who require expensive, ongoing medical treatment.

The state's expanding prison population and the increasing average age of its inmates appear to be key factors behind one of the most contentious issues facing California lawmakers. They are at odds over whether to approve $7 billion to build medical units for a prison health care system that has been ruled unconstitutional.

The money has been ordered by a federal court receiver who has been placed in charge of medical care in the state's 33 adult prisons.

Rodriguez is among those requiring pricey care.

He is serving a life sentence after being convicted of a "third strike" for stealing candy and cheese from a Los Angeles County grocery store. The conviction in 2000 followed another petty theft and a string of robberies nearly 30 years ago.

The 66-year-old inmate is in the California Medical Facility in Vacaville, coping with the final stages of terminal liver disease. Parole officials rejected his petition for compassionate release, so he most likely will spend the rest of his days in the prison hospice.

"For people who are old and feeble, hopefully we'll be left to die in peace," Rodriguez said. "I'm waiting for that phone call that says you can go home to die. That's all I got left."

Aging inmates cost two to three times as much to incarcerate as younger prisoners, an average $98,000 to $138,000 a year.

Between 1980 and 2007, the average age of California inmates increased from 27 to 37.

The prisons hold more than 22,000 inmates over age 50, or about 13 percent of the overall adult inmate population. In 1998, the number was 9,820, or 6 percent of the prison population.

Prison authorities say inmates age faster than the general population because of stress, a history of drug use, poor medical care throughout their lives and other factors. A 50-year-old inmate can have the physical and mental condition of someone 10 years older.

At the end of 2007, California housed 4,805 inmates age 60 and older, or about 3 percent of the prison population. A decade ago, that number was 1,951, or just more than 1 percent of all prisoners.

Prison populations nationwide also are aging.

The number of inmates 55 and older in state and federal prisons increased from 44,200, or 3.3 percent of the population, in 2000 to 80,200, or 5.3 percent, in 2006, according to the most recent statistics available from the U.S. Justice Department.

The California Department of Corrections and Rehabilitation expects its over-60 population to increase 80 percent by 2012.

That rise is due in part to tougher sentencing laws passed in recent years that send convicts away for longer stretches.

Some advocates say the state could save money by giving compassionate release to older, infirm inmates. A year ago, Gov. Arnold Schwarzenegger said he was open to releasing "the old, feeble and sick who pose no threat to the public."

The corrections department estimates that paroling all nonviolent offenders 55 or older, sick or not, would trim the prison population by about 1,000 and save about $20 million annually.

"We are paying the most amount of money to incarcerate those people who are the least risk to public safety," said Heidi Strupp, an advocate with the San Francisco-based group Legal Services for Prisoners with Children.

A proposal by state Senate Democrats would use existing compassionate-release laws to free more ailing inmates. Caring for a severely disabled inmate can cost the state $1 million a year or more, said state Sen. Mike Machado, D-Linden, chairman of a subcommittee that oversees prison spending.

The proposal would limit the releases to nonviolent offenders who have not committed sex crimes or serious offenses.

The debate over how to care ill inmates is connected to three lawsuits related to overcrowding in state prisons.

The 33 prisons house about 159,000 inmates but have a capacity of just about 100,000. Another 11,000 inmates are in fire camps or private prisons. Plaintiffs claim the crowding has led to poor medical, mental health and disability care for inmates.

If a settlement isn't reached, a special panel of three federal judges could order a prison population cap or other steps leading to the release of thousands of inmates.

The receiver appointed to oversee prison health care wants the $7 billion to build medical units for roughly 6 percent of the inmate population, or about 10,000 beds.

"Given the aging population in corrections and their health care status, we essentially need to build ... long-term housing for people who need long-term care," receiver J. Clark Kelso told a state budget subcommittee this spring.

Funding concerns have stalled Kelso's plan in the Legislature, which is struggling to deal with a projected $15.2 billion budget deficit for the current fiscal year.

Some actions to deal with aging prisoners are being considered independent of any court orders.

California corrections officials are turning the surplus El Paso de Robles juvenile correctional facility in San Luis Obispo County into a low-security prison for 1,000 nonviolent men over age 50. The conversion is starting this month.

Other attempts to ease the strain on older inmates are under way in the Legislation, but some of the steps could add to the already high cost of incarceration.

A bill by Sen. Sheila Kuehl, D-Santa Monica, would grant privileges such as easier work and bunk assignments to inmates over age 55. They also would get first call for meals and would not be required to drop to the floor during security alarms.

Prison employees would be trained to deal with inmates who may no longer be able to hear commands or might act out because of dementia. Older inmates would receive an identification card and an ombudsman to help with their complaints.

The bill stalled in the Senate Appropriations Committee, leaving its fate uncertain because Kuehl is termed out of the Legislature after this year.

Ultimately, the answer may be supervised release programs for most elderly inmates and minimum-security "prison nursing homes" with specially trained staff for the most frail, said Jonathan Turley, founder and director of the Project for Older Prisoners, an advocacy group.

"Older prisoners may be high risk for bad checks or forgery, but they're not high risk for escape," said Turley, a George Washington University law professor. "I mean, they're not going to throw their walkers over the razor wire."

Federal studies show that less than 5 percent of inmates 55 and older are likely to commit new crimes after their release. By comparison, about 70 percent of California inmates overall return to prison.

Posted by lois at 09:29 PM | Comments (0)

June 26, 2008

The Sentencing Project's response to George Will's Column: "More Prisons, Less Crime"

The Sentencing Project
www.sentencingproject.org

Do More Prisoners Equal Less Crime? A Response to George Will

In a recent syndicated column (“More Prisons, Less Crime,” Washington Post, June 22, 2008), commentator George Will argues that the world record incarceration rate in the United States has produced safer streets and has been beneficial in particular to African Americans, who are disproportionately victims of crime. Will’s selective use of data and limited vision provide an inaccurate portrayal of current criminal justice policy and its effects. Following is an assessment of some of the key arguments raised in the column.

“Liberalism likes victimization narratives and the related assumption that individuals are blank slates on which ’society’ writes. Hence liberals locate the cause of crime in flawed social conditions that liberalism supposedly can fix.”

Decades of research documents that people in low-income, minority communities are at greater risk of entering the criminal justice system because of the paucity of prevention programs, early intervention programs, and alternatives to incarceration. While privately run social services programs are widely available in most middle and upper class communities, their limited presence where they are most needed means that the first “intervention” that those less fortunate encounter is often prison.

Evidence-based social programs that address the contributing factors to crime have been demonstrated to be more cost-effective than incarceration. Research shows that quality preschool programs can save the public $17 for each dollar that is invested. Other programs with documented cost-effectiveness include initiatives to improve high school graduation rates and a variety of substance abuse treatment strategies.

“…Obama said that ‘more young black men languish in prison than attend colleges and universities.’ Actually, there are more than twice as many black men ages 18 to 24 in college as there are in jail.”

Will is technically correct that Senator Obama misspoke in his reference to young black men, as opposed to black men of all ages. But current and projected rates of incarceration for black men are indeed dramatic. One of every nine black males in the age group 20-34 is in prison or jail on any given day, and if current trends continue one of every three black males born today can expect to go to prison in his lifetime.

“…from 1999 to 2004, violent offenders accounted for all of the increase in the prison population”

Will is both wrong and misleading on this statistic. First, the violent offense proportion of the state prison population increase, 75%, was substantial, but did not account for “all of the increase.” More importantly, the crisis of incarceration in the U.S. did not begin in 1999. In fact, the incarcerated population has been rising at a dramatic rate for more than three decades. The combined prison and jail population has risen by more than 600% since 1972, increasing from 300,000 to 2.3 million today. A longer term view of the rise in the prison and jail population shows that changes in drug policy have been most significant in contributing to this expansion. From 1980 to today, the number of drug offenders in prison and jail has risen by 1100%, from 41,000 to 500,000.

“In the overwhelming majority of cases, prison remains a lifetime achievement award for persistence in criminal offending. Absent recidivism or a violent crime, the criminal-justice system will do everything it can to keep you out of the state or federal slammer.”

The unprecedented rise in the prison population described above was brought about primarily as a result of changes in policy, not crime rates. State and federal legislatures passed numerous “tough on crime” laws intended to put more people in prison and keep them there longer than in the past. An analysis of incarceration patterns between 1980 and 2001 by noted criminologists Alfred Blumstein and Allen Beck concluded that fluctuations in crime rates played no role in the 316% growth in imprisonment. The researchers found that the entire growth was related to changes in sentencing policy, with 53% attributable to an increased likelihood of incarceration following an arrest and 47% resulting from increased time served in prison.

“But [Heather] Mac Donald cites studies of charging and sentencing that demonstrate that the reason more blacks are disproportionately in prison, and for longer terms, is not racism but racial differences in patterns of criminal offending.”

While differential crime offending is one contributing factor to racial disparities in prison, a wealth of research documents that it only explains a portion of the patterns in imprisonment. A comprehensive review of research in the field conducted for the National Institute of Justice concluded that "race and ethnicity do play an important role in contemporary sentencing decisions. Black and Hispanic offenders -- and particularly those who are young, male, or unemployed -- are more likely than their white counterparts to be sentenced to prison; in some jurisdictions, they also receive longer sentences...than do similarly situated white offenders."

“As for the charge that the incarceration rate of blacks is substantially explained by more severe federal sentences for crack as opposed to powder-cocaine defendants…[citing Mac Donald] ‘it’s going to take a lot more than 5,000 or so [federal] crack defendants a year to account for the 562,000 black prisoners in state and federal facilities at the end of 2006.’”

The movement to reform federal penalties for crack cocaine offenses is not based on the assumption that these policies represent the entire problem of disparity in the criminal justice system. Instead, as respected organizations including the U.S. Sentencing Commission and the American Bar Association have documented, the crack penalties are both ineffective as drug policy and contribute to unwarranted racial disparities. They are also representative of many of the misguided policies and practices of the “war on drugs,” which has resulted in over-incarceration of low-level offenders and disproportionate targeting of communities of color.

“ . . . 10 years of scholarly studies ‘have shown that states that sent a higher fraction of convicts to prison had lower rates of crime . . . [a] high risk of punishment reduces crime. Deterrence works.’”

The relationship between incarceration and crime is far more complicated than is suggested by this quote. During the 1990s, a time of historic declines in crime, there was no discernible correlation between incarceration rates and criminal offending. Between 1991 and 1998, states with above average increases in the rate of incarceration (72%) experienced a 13% decrease in crime rates. But states with below average increases in the rate of incarceration (30%) actually experienced a greater decline in crime rates, 17%. During this time the notable “tough on crime” state of Texas experienced a 144% rise in incarceration between 1991 and 1998, and its crime rate fell 35%. However, New York’s crime rate declined by a greater extent, 43%, during this period, despite an increase of incarceration of only 24%. New York continues to experience historic lows in crime while its prison population continues to decline, and there is widespread discussion of closing four prisons in the state because of excess capacity.

In truth, imprisonment has only played a limited role in reducing crime. An analysis of the drop in crime during the 1990s estimated that the growth of imprisonment accounted for about one-quarter of the decline in violent crime. Other contributing factors likely included a growing economy, changes in drug market dynamics, strategic policing, and community engagement in crime prevention efforts. While imprisonment may work at some level to reduce crime through deterrence and incapacitation, there is little evidence supporting the deterrent effect of increasingly longer prison sentences. Research suggests that any deterrent effect is more a function of the certainty of punishment, not the severity.

“‘Deterrence works.’ [Quoting Heather MacDonald] It works especially on behalf of blacks, who are disproportionately the victims of crimes by black men.”

While prison has had only a limited impact on crime, it is increasingly resulting in negative consequences for individuals, families, and communities. As a result of mass incarceration there are now 1.5 million children with a parent in prison, including 1 in 14 African American children.

African American communities are also affected by the challenges of reentry for the 700,000 people leaving prison each year. Many persons leaving prison are ill-equipped to handle life on the outside because they have received few services for mental health, substance abuse, education, and vocational skill-building programming while incarcerated.

Upon leaving prison or jail, individuals encounter a tangle of legal restrictions which severely limit their ability to become productive members of society. In addition to longstanding barriers to employment and education, in recent years policymakers have enacted a host of restrictions, many applying solely to drug offenders. These include a federal ban on welfare and food stamps for those with a felony drug conviction, a federal mandate that limits access to public housing, and restrictions on student loans for higher education.

An estimated 5.3 million individuals are unable to vote because of laws that deny this fundamental right to participate in the democratic process to those with felony convictions. These restrictions fall disproportionately on African Americans, with13% of black males currently unable to vote. These policies affect black communities as a whole, whereby even persons who are not disenfranchised experience vote dilution as a result of high rates of legal disenfranchisement in their communities.

Conclusion

Issues of crime and justice are critical ones for all Americans. As such, we need to encourage a national dialogue on promoting safety that assesses the appropriate balance of approaches among prevention, strengthening communities, and criminal justice sanctions. For more than three decades our nation has made unprecedented investments in prison expansion at the expense of other policy options. We now need a national dialogue that is centered on evidence-based research regarding the relative effectiveness of various interventions. Such a dialogue would produce better public safety outcomes for all Americans.

June 28, 2008

Posted by lois at 01:20 PM | Comments (0)

June 21, 2008

Jamie Fellner: Onward and Ever Upward -- But Not in a Good Way

June 21, 2008
Onward and Ever Upward -- But Not in a Good Way
Huffington Post
by Jamie Fellner
NEW YORK -- Two new federal reports highlight the profound disconnect in the United States between crime and punishment.

According to the federal Bureau of Justice Statistics, the US prison and jail population has now grown to all-time high of 2.3 million. The United States not only incarcerates the greatest number of people in the world, it also incarcerates at the highest rate: last year 762 out of every 100,000 people in the United States were behind bars, a rate five to ten times that of other western democracies.

The endlessly growing rate of incarceration does not, however, reflect growing rates of crime. The newest FBI crime report shows that violent and property crime declined last year, and remain near historical low levels. Indeed, over the last two decades, prison populations have grown steadily regardless of whether crime was up or down, and for some years now the trend has been down.

So why the never-ending prison growth?

The short answer is that for at least a quarter of a century American criminal justice policies have not been very sensible. Prison should be used parsimoniously, reserved for those who have committed such dangerous or egregious crimes that imprisonment is the only commensurate response. Using prisons this way would protect the public, save money and meet human rights requirements.

But this is not how US prisons are utilized. Three ill-considered policies drive incarceration rates.

First: the war on drugs. Launched more than two decades ago, it is still going strong. About one third of all people entering prison with new sentences were convicted of drug charges. Few of them are kingpins or major traffickers. US prisons are swollen with men and women who sell drugs at the retail level or have menial jobs in the drug business as couriers or lookouts. More than two decades of punitive drug policies should have taught the nation a few things: That as long as a demand for drugs exists, there will be a supply. That aggressive drug law enforcement has little effect on the proportion of adults who regularly use hard drugs or even marijuana. That for every low-level drug seller sent to prison, someone else will take his or her job. Unfortunately, politicians seem to be slow learners: they continue to fund this futile and costly war rather than embracing effective and less expensive public health and harm reduction approaches to drug use.

Second: draconian sentencing laws. Politicians running on "tough on crime" platforms in the 1980s and 90s ratcheted up prison sentences by adopting a spate of laws that require imprisonment even for low-level nonviolent crimes and that require long sentences based on one or two criteria - for instance, weight of drugs sold, or a prior record. But in 2008, who really believes a life sentence makes sense for someone whose third offense consists of stealing some videos from Kmart? Who really believes that selling a small quantity of drugs to an adult should yield a decade or more behind bars?

Third: punitive parole practices. Last year, 240,000 people entered prison because their parole had been revoked, about one third of the total incoming population. Parole should be a time of supervision and support to enable former offenders to get their lives together. But too often it's a game of "gotcha." In most cases parole is revoked not because the parolee committed a new crime (although that happens) but because he or she failed urine tests for drug use, did not come to treatment meetings, or in some other way committed a technical violation of the conditions of parole. Offenders on parole should be held accountable for not complying with parole requirements. But there are cheaper and more productive ways to encourage compliance than automatic returns to prison.

The extraordinary rate of incarceration in the US is not necessary to protect the public -- community-based sanctions and treatment for addiction would be even more effective at reducing most kinds of nonviolent crime and at far less cost. Meanwhile, the unnecessary incarceration of Americans damages individuals (few are better off for being in prison), families (children suffer when parents are sent away) and communities (the social capital of already vulnerable communities is further frayed by high incarceration rates.)

People who care about racial justice have spoken up to challenge a prison population that is overwhelmingly black and Hispanic. People who believe punishment should fit the crime have spoken up to criticize unduly severe sentences.

But Americans who are concerned about taxes and who want a sound return on public investments, including criminal justice investments, have remained silent in the face of the needlessly expanding, wildly expensive ($49 billion last year) prison population. It is time for them to speak up too. Until they do, the prison population may just continue endlessly and senselessly upward.

Jamie Fellner is senior counsel at Human Rights Watch and author of numerous works on US criminal justice policies.
http://www.huffingtonpost.com/jamie-fellner/onward-and-ever-upward_b_108382.
html

Posted by lois at 10:04 PM | Comments (0)

June 10, 2008

Philadelphia: A Messed-Up Justice System

Karen Heller: A messed-up justice system
By Karen Heller
Philadelphia Inquirer

"If the United States leads the world in incarceration," says civil-rights lawyer David Rudovsky, "Philadelphia leads the United States."
We have a higher percentage of our citizens in prison than anybody else, 3.5 times more than New York City.
We're No. 1!
We've won the inmate championship. And our prize is the chance to spend $230 million on prisons every year.
This is one business we should be doing everything to unload.Prisoners are a growth industry. "Booming," says prison commissioner Lou Giorla.

It's not hard to see why. When so many of the city's population are woefully uneducated - almost 30 percent lack high-school degrees - decent jobs are hard to come by.

The drug-dealing business, however, is always hiring.

Spend a day inside one of the Court of Common Pleas' four jury-waiver courtrooms and the parade of criminals never stops. One defendant, aged 41, had three trials scheduled simultaneously last Wednesday, from three drug-selling arrests in six weeks. He'd kept out of trouble for 10 years, then fell back because he couldn't find work.

Nonviolent defendants such as he, charged with petty drug dealing, constitute the majority of cases in these courts. If convicted, felons face mandatory minimum sentencing: one to two years for selling two grams or more of cocaine or heroin for the first offense, three to six years for subsequent offenses.

A packet of sugar is four grams.

The criminal division heard 15,000 felony cases last year, 80 percent of them related to drugs.

"We're not doing the things that would prevent the market from growing," says Judge Pamela P. Dembe, chief of the criminal trial division. "We operate a justice system that is based on a very old model, a punitive model."

Punishment is not where we should put money or manpower.

This spring, Philadelphia's prisons made history - by having more prisoners in jail than at any time in the last three centuries, 9,334 prisoners, at an annual cost of $30,000 each. The facilities were designed to hold 6,433.

Who says we don't make anything anymore? We make prisoners.

Two-thirds of inmates are awaiting trial, half for minimum drug charges. Some wait as long as two years for their cases to be heard.

It's an expensive mess. Fifteen percent of prisoners are mentally ill. More than 2,000 are held three to a cell designed for two; one of them has to sleep in a plastic shell on the floor. Due to overcrowding, guard overtime will hit $35 million this month.

Rudovsky is suing the system, on behalf of 11 named inmates, stating that overcrowding violates their civil rights. He's been fighting this issue since 1970, when the prison population was a mere 2,800.

"Building new prisons is not a good idea. You build them, you'll fill them," Rudovsky says.

"We're not going to win the war on drugs in the court system," Dembe argues. By then, it's too late.

We need to find people jobs, so they can earn $30,000 a year instead of our spending that on a cell.

A quarter of Philadelphia's budget goes to criminal justice, almost $960 million on cops, courts and prisons. And 80 percent of the criminal justice system deals with the nasty tentacles of drugs. Do the math. That's $767 million to deal with problems at the end of the line, not the beginning, before they all clot the system.

That money could be spent on day-care. That money could be spent on rec centers. That money could buy early childhood education and job-training centers and mental-health care.

That money could turn girls and boys into educated, law-abiding citizens, and transform potential petty dealers into taxpaying workers.

Mayor Nutter and the new administration are trying, but there needs to be more effort, more money and more manpower to wipe out the prison industrial complex, so the city can reduce the annual drag on the budget fighting a war on drugs that no one is winning.
http://www.philly.com/inquirer/columnists/karen_heller/20080609_A_messed-up_justice_system.html

Posted by lois at 02:17 PM | Comments (0)

June 09, 2008

MN: Locked In Limbo: civil committment for people convicted of sex offenses

"He has just reached 21 years of age," Reuter wrote. Given the MSOP's
history, he added, an indefinite commitment "is analogous to a life sentence without the chance of parole."

'They're all close calls now

By LARRY OAKES, Minneapolis Star Tribune
June 9, 2008
Project: Special Project: Locked in limbo

PINE CITY, MINN -- Isaiah Swedeen's future hung in the balance as deputies escorted him into the courtroom. The 20-year-old already had been through a series of treatment and detention centers after disclosing that he had raped his two sisters. Now officials were asking Judge James Reuter to confine Swedeen indefinitely, to prevent him from victimizing someone again. Swedeen's history of mental disorders, difficulties controlling himself and resistance to treatment meant that he fit the legal definition of a sexually dangerous person, prosecutors from Pine County and the Minnesota attorney general's office argued.

They asked Reuter to commit Swedeen to the Minnesota Sex Offender Program (MSOP). Created in 1994 to treat offenders until they are no longer dangerous, the MSOP has never released anyone committed to it.

Swedeen's case illustrates the difficulty judges face in deciding sex-offender civil commitments in Minnesota. They are being asked to commit an ever greater variety of offenders to indefinite, prison-like confinement, based on the educated guesses of a small group of psychologists paid to employ the fallible science of risk assessment. Even some judges say the applicable law is so broad that it can be used to send almost anyone with a sex-crime conviction to the MSOP.

"I can't remember the last time I had a slam-dunk" sex-offender commitment, said Minneapolis psychologist Roger Sweet, a 30-year veteran of various kinds of commitment cases. "They're all close calls now."

'The net is wider," agreed psychologist Gerald Henkel-Johnson of Esko, who has done violence risk assessments for the courts for 13 years.

Judges' decisions are made even more difficult by the MSOP's track record.

"Nobody involved at our level wants this to be a system where we are actually locking people up for life under the pretext of treating them," said Hennepin County District Judge Peter Albrecht.

The stakes are highest for young offenders like Swedeen. He is one of about 60 men in the MSOP - about 11 percent of the total - sent there based solely on their records as juveniles, according to the Department of Human Services.

A 'slippery slope'

Like many offenders, Swedeen was sexually abused as a child, at the hands of his drug-addicted birth parents, their friends, and child pornographers in Washington state. He was found to have genital herpes at age 4, when authorities took custody of him and his sisters, who were similarly abused.

Keefe and Holly Swedeen eventually adopted the children and raised them in Hinckley, Minn. By the time Isaiah was 14, the Swedeens had trouble controlling him, and they sent him to a series of treatment centers for troubled adolescents.

At one center he revealed to counselors that he'd been raping his sisters, who are one and three years younger. In 2002, a judge sentenced him to sex offender treatment in prison. But he kept getting kicked out of treatment because of angry outbursts or sexual misconduct with other inmates.

In 2005, Pine County started proceedings to commit him to the MSOP but gave him another chance to complete treatment, this time at an inpatient program in Minneapolis called Alpha House. Again he failed, and authorities returned him to Reuter's courtroom in the summer of 2006 for a civil commitment trial.

Swedeen's adoptive parents dreaded the outcome as they took seats in the front row of the Pine City courtroom.

"What he did to his sisters stemmed from his own abuse," Keefe Swedeen said. "He wanted help, and he admitted what he did. Now he's being thrown to the wolves."

Reuter invited three court-appointed psychologists from the Twin Cities to sit in the empty jury box. (Minnesota is one of only three states that don't allow jury trials for such commitments.) The prosecution and defense had picked the psychologists from lists kept by the attorney general's office and many counties. The lists have names of psychologists with experience in evaluating and assigning risk levels to defendants, prisoners and people rendered potentially dangerous by mental illness.

About two dozen of these psychologists, who are called forensic examiners by the courts, have supplied the foundation for most of Minnesota's sex offender commitments.

For taxpayer-funded fees now approaching $10,000 per case per examiner, they administer tests devised by behavioral scientists, diagnose personality disorders, consult actuarial tables and predict whether an offender is likely to re-offend.

Their participation is controversial within the mental health profession.

The American Psychiatric Association, National Association of State Mental Health Program Directors and other groups have objected to civil commitment of criminals. They argue that most aren't mentally ill and that using mental health systems in this way discredits both psychiatry and the justice system.

The problem, critics say, is that disorders such as antisocial or narcissistic personality, which have been used under the Sexually Dangerous Persons Act to justify commitments of offenders, are prevalent in any group of criminals and not unheard-of in non-criminals.

"Using that standard, you could commit a lot of bank robbers," said Dr. Fred Berlin, founder of the Sexual Disorders Clinic at Johns Hopkins University and a critic of civilly committing sex offenders. "It can be a slippery slope."

Critics also question whether mental health professionals should render opinions on whether a criminal qualifies for unscientific legal designations such as "sexual psychopathic personality" or "sexually dangerous person," which are needed in order to be committed in Minnesota.

"Those terms are not in the diagnostic manual," said Dr. Jeffrey Hardwig, president of the Minnesota Psychiatric Society. "What psychiatry objects to is the use of civil commitment to prolong somebody's sentence. Defining mental illness purely based on criminal behavior is not a place we want to go."

Tools are fallible

In predicting risk, examiners rely on established actuarial tools -- worksheets developed by social scientists -- to compile facts such as the offender's age, number of victims, degree of violence used and other characteristics.

The offender's "score" is compared with databases of offenders to see whether he (almost all are men) falls into a group that re-offended - a statistical approach much like the one insurance companies use to assign risk.

Some examiners readily acknowledge the fallibility of their tools.

"In general, these instruments are about 70 percent accurate; thus they're wrong 30 percent of the time," said psychologist John Austin of St. Paul, who has testified in commitment cases since 1979.

Scientists who examined the validity of two popular risk-assessment tools reported last year in the British Journal of Psychiatry that at best "professionals should be extremely cautious," and at worst "should avoid using [such tools] altogether, as the predictive accuracy of these tests may be too low [for] high-stakes decisions about individuals."

Dr. Michael Farnsworth, the state's former forensic psychiatrist, designed the MSOP and still evaluates offenders for the courts. But he doesn't place much confidence in actuarial tools.

"They still have a high rate of false positives and a pretty good rate of false negatives," Farnsworth said. "With the false negatives, there will still be people who offend against the community, and the public will feel betrayed. Conversely, with the false positives, we lock up the wrong people,'' at a cost of $134,000 each a year.

In contrast, Austin, Minn., psychologist Rosemary Linderman, an evaluator in commitment cases since 1992, has few qualms about the civil commitment process and her role in it.

While acknowledging that "all [risk assessment] tools have some limitations," she said examiners weigh the results against their professional judgment, based on their experience and extensive reviews of the offender's history.

Linderman said she's not concerned about the dramatic rise in commitment petitions that followed the 2003 rape and killing of Dru Sjodin by paroled rapist Alfonso Rodriguez Jr., who was sentenced to death.

"I think our world is a different world than it used to be, and that we need to pay attention to high-risk sex offenders to protect our communities," Linderman said.

But Austin said the spike is troubling. "I am unaware of any data that indicates that sex offenders released since 2003 are at a greater risk to re-offend sexually," said Austin, adding that a 2007 Minnesota Department of Corrections study "seems to indicate the opposite, in fact."

The study checked for new criminal activity among 3,166 sex offenders released from Minnesota prisons between 1990 and 2002. After an average of 8.4 years, 10 percent had been convicted of a new sex offense. Significantly, those released earlier were much more likely to be reconvicted within three years than those released later -- 17 percent in 1990 vs. 3 percent by 2002.

"The reduction in sexual recidivism since 1990 is likely due, in part, to the longer and more intense post-release supervision of sex offenders," the study concluded.

A 'deeply troubled' judge

No one knows whether Isaiah Swedeen will molest or rape again. The court system paid the psychologists to make their best guesses. Those guesses carried the weight of verdicts.

When first retained by the state to review Swedeen's history in 2005, psychologist James Gilbertson said that Swedeen arguably met the legal criteria for commitment as both a sexual psychopathic personality and a sexually dangerous person.

Psychologist Mary Kenning, testifying at the same hearing, said Swedeen didn't seem to fit those criteria but may have been committable as mentally ill and dangerous, a separate legal designation under another law.

After interviewing and testing Swedeen, both Kenning and a third psychologist, James Alsdurf, said Swedeen needed treatment but not indefinite confinement.

But after Swedeen washed out of the program at Alpha House, all three experts supported committing him when they reconvened in June 2006.

"Since November 2005, what's changed?" asked Dan Bina, Swedeen's attorney.

"I gave him the benefit of the doubt in 2005, and I probably shouldn't have," Alsdurf answered, adding that Swedeen "completely bombed" in his chance to avoid commitment.

Alsdurf and Kenning testified that they also were persuaded by Swedeen's additional disclosure during treatment that he had inappropriately touched a neighbor boy when they wrestled as children. Statistically, offenses against both sexes increase the risk of re-offending.

During a break in the hearing, Bina, Swedeen's attorney, paced the hallway. "I'd rather have a murder case than one of these," he said. "With murder, there's a set period of time."

Three months later, on Sept. 15, 2006, Judge Reuter preliminarily committed Swedeen to the MSOP as a sexually dangerous person.

In early 2007, deputies returned him to Pine City for a required hearing to decide whether that commitment should be "indeterminate."

Bina leaned toward his client and asked: "Do you understand that it may be a year, and it may be 50 years?"

With youthful bravado Swedeen replied, "I'll be out in 10 years, guaranteed."

Bina asked that the commitment be reconsidered because Swedeen's behavior in the MSOP improved after he refused to take psychiatric medications. Bina noted that an MSOP psychiatrist had filed a report saying that Swedeen didn't appear to need the drugs and that his behavior was more consistent with a personality disorder than a major mental illness.

Noah Cashman, the assistant attorney general arguing the state's case, countered that Swedeen had had angry outbursts and at least eight rule violations. His condition remained much the same, Cashman argued.

Judge Reuter said he was disappointed with the MSOP's 60-day report. "It was perfunctory, redundant," he said.

Cashman replied: "With the 60-day review, the information will be limited," adding that "it takes years" to effectively treat someone with Swedeen's problems.

Reuter said he'd decide within a few weeks, then adjourned. "Mr. Swedeen, take care of yourself now, OK?" the judge said. Swedeen nodded toward the judge as he was led away.

Seventeen days later, Reuter signed an order for "indeterminate commitment." The order said there was no appropriate place for Swedeen in Minnesota besides the MSOP.

But Reuter also wrote that he was "deeply troubled" that Swedeen apparently hadn't received any treatment while his final commitment was pending.

"He has just reached 21 years of age," Reuter wrote. Given the MSOP's history, he added, an indefinite commitment "is analogous to a life sentence without the chance of parole."

http://www.startribune.com/local/19645554.html

Posted by lois at 08:38 PM | Comments (0)

Coming Home After a Reduced Sentence. Those Released Since Disparities in Cocaine Penalties Were Offset Find a Different World.

Coming Home After a Reduced Sentence
Those Released Since Disparities in Cocaine Penalties Were Offset Find a Different World

By Darryl Fears
Washington Post Staff Writer
Sunday, June 8, 2008; A02

Days after her release from prison, Nerika Jenkins made a bold prediction: "I'll bounce right back into society."

Although the world changed considerably over the 11 years of her imprisonment, she said, "I'm not afraid." She took vocational classes -- masonry, carpentry, painting, culinary arts, Microsoft Excel and horticulture -- while serving time in Philadelphia and Danbury, Conn. "I'm just ready to achieve my short-term goal, building a nursing home," she said. "They're always in need of places for the elderly."

More than 7,000 crack cocaine offenders such as Jenkins, 36, have received reduced sentences since March, when the U.S. Sentencing Commission put retroactive sentence guidelines into effect to offset what the commission felt were overly harsh punishments for crack cocaine related crimes, and it is an open question whether they will succeed or return to a life behind bars.

The majority of the reductions so far have been granted in the U.S. Court of Appeals for the 4th Circuit, covering Maryland, Virginia, West Virginia and the Carolinas, according to a report by the Sentencing Commission on retroactive crack cocaine sentencing released in May. By contrast, the U.S. Court of Appeals for the 9th Circuit, covering California, Washington, Oregon, Arizona, Alaska, Nevada, as well as other states and territories, has granted about the same number of reductions as the smallest jurisdiction, the U.S. Court of Appeals for the District of Columbia Circuit in Washington.

About 35 percent of inmates who were granted reductions by fede