Posts Tagged ‘jail’

Why Prison?

Thursday, April 14th, 2016

Yesterday, I was raptly following the sentencing of Matthew Keys as it was live-tweeted by Sarah Jeong. If you haven’t read the dozens of articles about it today, the short story is Mr. Keys was sentenced to 2 years in federal prison, for sharing his login info online — info that another person then used to change one page of the Los Angeles Times website, until an editor spotted the vandalism and changed it back about 40 minutes later.

That’s right, he will lose two years of his life for sharing his login info with someone else.

I’ve written before on the insanity of the law he’s said to have violated — the Computer Fraud and Abuse Act — a law that is so vague and overbroad that I am certain every person reading this has probably violated it by now. Or can be said to have violated it by a federal prosecutor with nothing better to do. Which in the case of this law is the same thing. But this time I’m not here to rage against overcriminalization, incautious drafting of criminal legislation, or the abuse of prosecutorial discretion in choosing to charge people with offenses that nobody in their right mind thinks of as crime.

I’m here because, two years? Seriously?

The criminal justice system has a very limited toolbox. If someone has committed a crime, they get punished. That’s it. Punishment is harsh. It’s the almighty State asserting its control over your body, your life, and your stuff. No matter what the punishment is, the State is grabbing you and doing something nasty to you.

Sometimes the punishment can be light — “go forth and sin no more, but if you do you’re in worse trouble.” Or a fine. That makes sense. Most people aren’t criminals. We don’t have to worry that they’re going to violate the law again. They’re traumatized enough by the fact that they were arrested and churned through the machine of criminal justice — they’re never going to see the inside of a courtroom again, if they can help it. The supervisory forms of this “light” punishment can vary in the severity of supervision. In a consent decree or a conditional discharge or an adjournment in contemplation of dismissal or what have you, it’s basically “don’t get in trouble for a year, but if you do….” With a drug program, it could be “go to treatment, kick the habit, and get your life in order. Oh, and don’t get in trouble again.” Then there’s probation, which technically means “prove we can trust you not to get in trouble again.” Probation usually carries lots of conditions that limit your liberty and freedom to varying degrees. Depending on how intensive your supervision, it could range from showing up at the probation office to sign in and leave once a month, to random unannounced home invasions and crazy-strict limitations on what you’re allowed to do and where you’re allowed to be and who you’re allowed to hang out with. But at least you’re still walking around.

Prison, on the other hand, is a complete theft of your liberty. Your life is taken away from you. Your job is gone, so’s your home, probably (you’re not paying that mortgage any more), your family can’t see you except under the most limited and difficult conditions, and of course you yourself are caged up under armed guard for the next X years of your life. Maybe the rest of it. If you get out, unless you’re very lucky, your life as you knew it is still over. You’ll have to find another career, probably. One you’re not trained for. One that doesn’t mind if you’ve done time. Kind of a limited selection. You’ll probably be on parole or post-release supervision even after you get out, which is like probation to prove you deserve to be on the outside (and if you screw up, back in you go). God forbid you peed in an alley and got stuck on a sex offender registry as well.

Prison is literally stealing years from your life, and ruining the ones you have left.

And it’s the default penalty for many prosecutors. Especially federal prosecutors. Especially those who lack the perspective, understanding, and wisdom we demand of them in return for the boundless discretion we’ve granted them. Especially those who have gotten so used to throwing numbers around that they’ve forgotten the meaning of what they’re even doing.

This guy Matthew Keys, for example. The feds literally asked the judge to put him in prison for 5 years, because he shared his logon info. They sincerely and honestly argued that this was the right and just penalty for a crime that (1) is only a crime because they said so, and (2) didn’t hurt anyone. (The loss calculation was basically the newspaper’s cost of fixing their own internal security issues that let this happen. If you can even call that harm.) The judge gave him 2 years, apparently following the time-tested tradition of judges “splitting the baby” when they can’t think of a principled reason for imposing a particular punishment.

Even if you believe what Matthew Keys did was so bad that it deserves to be a crime, so bad that it deserves to be punished by the almighty State, nobody with an ounce of perspective can believe that the right thing to do is take away the next two years of the guy’s life, and ruin the rest of it.

But that’s what we do hundreds of times a day. He’s no exception. He’s the rule.

 – – – – –

Keep in mind that prison wasn’t always the default punishment, like it is now.

Back in the day, you got locked up until sentencing. To make sure you’d still be around for trial and punishment. Your imprisonment wasn’t your punishment. Punishment for most crimes consisted of a fine. The State took away your stuff. For the most severe crimes, there was corporal punishment — the stocks, the lash, the noose. And that was that.

Prison is what we started doing when we decided to get civilized. It let us use numbers to carefully balance the weight of your crime with the severity of the punishment it deserved. Instead of harshly whipping your bloody back, we could do the civilized thing, decide this crime was worth 90 days of jail, and tada!

Conceptually, this works fine if you think of the purpose of punishment as “an eye for an eye.” That’s retribution — long considered the civilized approach. (Unlike retaliation, which lets me cut off your head because you cut off my toe, retribution is all about being proportionate.)

But problems start when you begin trying out newer kinds of civility. What if punishment is now intended for deterrence, perhaps? Making sure this guy never wants to commit that crime again? Making sure everyone else thinks twice before doing it? Well, hell. We gave that guy 90 days for stealing, and people are still stealing. Better make it a year. Hell, that’s not working, better make it two. Five? At least the public likes it and we’re getting re-elected. Looking tough on crime’s not bad. It’s not as if it’s hurting anyone who matters.

Or most civilized of all: punishment is for rehabilitation? Look, we gave you a year to mend your ways the first time. Gave you three years the second time. You’ve done it again? Three strikes, buddy — you’re out. We’ll keep you in there until you’re cured, but you’re uncurable, so here’s a life sentence. (There’s also a bit of “removal” there — we can’t trust you to walk our streets, so off the streets you go. But rehabilitation is the best argument for a sentence with no fixed end date — you can’t get out until we say you’re no longer a threat. It has nothing to do with the innate justice of proportionality.)

 – – – – –

It’s all gone wrong.

In fact, I’m willing to bet money that if we conducted a rigorous survey of Americans right now, and asked them if they’d rather get X years in prison or Y lashes and go home, they’d take corporal punishment by a large margin. The brutal and uncivilized penalty would be greatly preferable to the cruelty of our civilized imprisonment.

The blame lies with the politicians who ratchet up the penalties, with the prosecutors who’ve lost sight of what they’re doing, and the judges who go along with it.

And with you and me. For not stopping it in its tracks. And for not shouting loud enough — as is proven every day with sentences like that of poor Matthew Keys — to put and end to it now.

Next time you make an offer, consider a sentencing argument, or read of a sentence in the papers, take a moment and ask yourself: why prison?

…Seriously?

Crime and Punishment

Monday, October 12th, 2015

Over at Vox.com, Dara Lind has posted the shocking “One chart that puts mass incarceration in historical context.” Lind painstakingly sifted through Bureau of Justice Statistics reports to create a graph of U.S. prisoners per 100,000 of population, from 1880 to 2013.

Focusing on those sentenced to prison (i.e., for more than 1 year) is an appropriate measure. As Lind points out, the data for jails (less than 1 year) is inconsistent. But more than that, if we are concerned with the long-term incarceration of our people, then prison’s where you find it. These are the people who have been locked away. The people whom we’ve decided deserve to have a chunk of their lives taken away, in retaliation for something they did.

The chart is stunning:

spike450

 

Imprisonment is relatively rare until the Great Depression, when it nearly doubles. The new rate stays fairly consistent through the Roosevelt, Truman, and Eisenhower years. Not sure about JFK, but under Johnson and Nixon it dips slightly. It goes back to Ike levels again under Carter. Then it jumps like mad under Reagan, Bush, and Clinton, spiking more than 600% from 1980 to 2000. It seems to have leveled off a bit under Bush II and Obama, but it’s now staggeringly higher than it ever was before.

Before getting into the reasons for it, for what’s going on here, I rummaged through the data to see whether there’s been a similar spike in crime — or perhaps whether the incarceration has lowered crime by keeping the criminals off the streets. Here’s what I’ve found:

crimerate450

So we’ve got property crime (stealing stuff, mostly) driving the majority of offenses. Violent crimes (murders, rapes, assaults, etc.) aren’t really changing the shape of the curve, though they do amplify it.

Let’s see how this matches with the imprisonment rate (I also used BJS data, but a different raw data set than Dara used, that had different values in some places. Where Dara’s BJS data differed, I relied on Dara’s set for consistency. Any BJS data folks are more than welcome to offer corrections):

Here’s the prison rate by itself:

Prison rate 450

And here it is superimposed on the crime rates for the same years:

crime and prison rates 450

Well, it’s hard to see any correlation between crime and imprisonment here. Crime seems to have gone up and down regardless of what imprisonment was doing. Shooting up during the slight dip and recovery from 1960 through 1979. Plummeting for about 5 years of gently rising imprisonment rates. Rising sharply again almost to the 1979 high over the next 8 years, while the imprisonment rate shot up even faster. Then dropping fairly steadily ever since 1992, while imprisonment continued to shoot up and finally stabilize.

I’m sure some of the incarceration may well have led to some of the drop in crime for a variety of reasons, but the relationship just can’t be as tight as one might hope. (Hoping, of course, that we haven’t been as crazy and unjust a society as this makes us look.)

But heck, I left something out. Drug crimes, right? That’s the ticket! The war on drugs must be what drove this!

Here’s the graph for drug crime during the imprisonment spike (coincidentally the only years for which I could find raw data):

drug crime 450

Well, hell. Incarceration’s not driving that down, for sure. And it’s not rising nearly enough to counter the drop in other crimes. In fact, prisoners incarcerated for drug-related crimes have been going down steadily since they peaked at 22% of the prison population way back in 1990. It is not the war on drugs that’s driving this.

It’s clear that it’s not rising crime that’s causing rising prison populations.

Could it be that prison population is going up because people are being incarcerated for longer periods of time? In other words, those who go away stay away, and the few new people each year just make the numbers go up? Sort of like Antarctica gets almost zero precipitation, but what it gets sticks around, which explains its super-deep snow pack?

Let’s see:

box

Crap, I don’t have enough data to make a meaningful graph. The last time the BJS ran the numbers, it was 1996. The average felony prison sentence in state courts was 62 months (a hair over 5 years) and in federal court it was 78 months (6 and a half years). The national average was 63 months (because the vast majority of crimes are prosecuted at the local level, very few federally).

If we say that the sentencing numbers haven’t changed significantly since then (a reasonable supposition, by the way), then the antarctic snowpack theory just cannot explain the rising prison population. The vast majority of prisoners don’t get locked away for more than a few years.

So if crime isn’t going up, and sentences aren’t going up, then how the hell do we get so many people in prison?

An interesting take on this was posted over at Slate last year. In an interview titled “Why Are So Many Americans in Prison: A Provocative New Theory,” Fordham law professor John Pfaff says it’s the prosecutors who are to blame. Fewer people are getting arrested, but prosecutors are sending more of those who do get arrested to prison than ever before.

This makes sense to me. I’m not thrilled with his political explanation of the phenomenon — that DAs want to get reelected, so they want to look tough on crime and charge more things as felonies. I don’t think that can possibly be all of the explanation.

It is absolutely true that DA’s offices get their budgets from politicians, and politicians base those budgets not on the effectiveness of the office as measured by a drop in crime, but rather on the more readily-counted number of felony indictments and convictions. So there is absolutely a base (in all senses of the word) drive to get indictments to justify the prosecutor’s offices’ own existence. Plus, to some extent perhaps, the drive of the guy on top to get re-elected.

But those higher-level policy considerations aren’t doing the prosecuting. That’s the young line Assistant DAs taking the cases and making the decision of what to do with them. Guided (often directed) by their managing chiefs, none of whom are elected officials. These are lawyers, not politicians, making the decisions.

At the individual prosecutor level, ADAs are deciding to prosecute cases they wouldn’t have bothered to take years ago. Where prosecutors once exercised their discretion and good judgment, they now are more likely to prosecute a case simply because they can.

Also at the individual prosecutor level, ADAs are deciding to prosecute cases as felonies that they previously would have let go as misdemeanors. This may well be due to the requirements of their higher-ups, wanting to inflate their numbers. But there is also a personal incentive here, as well. With crime falling, there are fewer and fewer chances to try big cases — the stuff that prosecutors (for the most part) want to do. It’s where the fun is, the challenge, the hard work. It’s where it all happens. In many jurisdictions, it’s the path to advancement, as well. If you’re not trying felony cases, there’s a sense that you’re not really doing your job.

So when there aren’t enough felonies to go around, there’s a strong incentive — politically and personally — to make enough.

Where Pfaff sees little hope in reform at the political level to get elected DAs who’ll lower the indictment numbers, the real reform is in reducing headcount among the line assistants. Keep the supply relative to the demand. If there’s not enough crime to go around, instead of manufacturing some way to justify their existence, offices should just get leaner. It’s hard to do, but a lot easier than changing who’s getting elected on a county-by-county basis.

That said, although I think Pfaff’s idea is noteworthy and brilliantly insightful, I haven’t given it enough consideration to tell if he’s right or not. One thing I do not have is data to back it up one way or another. All I have is my own prior experience as a prosecutor for almost 10 years, and my anecdotal discussions with my friends who are now bureau chiefs and such, and with others at leadership levels in prosecutors’ offices around the country (all of whom shall of course remain nameless). Until I have some data, I’m just going to call this one a good theory, and leave it at that.

But what do you think? Give us your ideas in the comments.

Prisons Crowded? Don’t Build More, Says Court. Just Release the Inmates.

Tuesday, February 10th, 2009

overcrowded.png

A panel of three federal judges yesterday essentially ordered the State of California to reduce its prison population by as much as 57,000 people, because crowding is causing violations of prisoner rights. This doesn’t mean that wardens will be releasing thousands of hardened criminals back onto the streets, but it does raise questions of how to do it. In its ruling, the court accepted certain possible solutions, but rejected the one obvious solution of building more prison space.

The panel was made up of U.S. District Court judges Thelton Henderson and Lawrence Karlton, as well as Stephen Reinhardt of the Ninth Circuit. These judges are known for their left-leaning policies, so it’s hardly surprising, perhaps, that they accepted and rejected the solutions that they did. Increasing prisons is not widely regarded as a liberal position.

Although the panel only issued a “tentative ruling” in Coleman v. Schwarzenegger (link from the L.A. Times), this is probably going to be the final ruling, which is why they were confident enough to issue it formally. Unless it’s overturned on appeal, California is going to have to think up and enact some creative methods of carrying out the order, so the judges wanted to give the state time “to allow them to plan accordingly.”

The case, actually two cases, were brought by prisoners who alleged that crowding — not overcrowding, just crowding — was causing violations of their constitutional rights. These aren’t new cases — one has been in the remedy stage since 1995, and the other since 2002.

The dispute now was not over whether crowding exists, or whether care is unconstitutionally inadequate. Gov. Schwarzenegger issued a state of emergency in 2006, still in effect today, because overcrowding was putting prisoners’ and guards’ health and safety at risk. So the fact of crowding couldn’t be in dispute. Also not in dispute is a previous court ruling that the prisons were not providing constitutionally adequate medical and psychological care.

The issue here was whether the crowding was the main reason for the failure to provide adequate medical and psychological care. And if so, then what to do about it.

The court found that there aren’t enough clinical facilities, resources or personnel to accommodate all the inmates who needed them. The risk of the spread of infectious disease is also enhanced by bunking prisoners in gyms and other spaces not intended to be used for housing. Lots of experts testified that crowding was the primary cause of the problems.

That being decided, California wanted a chance to fix the problem without decreasing the prison population. California showed that, under monitoring by a receiver and special master during the past 11 years, the Department of Corrections and Rehabilitation had already made significant improvements in conditions. So they asked for more time to fix these particular problems.

The court said no. They’ve had 11 years, and haven’t fixed the problem yet, so the court didn’t trust the monitors to fix it now. And anyway, “many of their achievements have succumbed to the inexorably rising tide of population.” Furthermore, California has no money to spare for new facilities, resources and personnel. Remedies for these cases have been tried since 1995, for 14 years now, and any future efforts of the receiver and special master could take many more years to have effect. The court felt that any further continuation of the already lengthy deprivation of constitutional rights would be wrong.

The court couldn’t think of any other relief that would work, other than reducing the prison population. Because scores of remedial orders had so far failed, “we are at a loss to imagine what other relief short of a prisoner release order a court could grant.”

So back to the question of how to do it. The court suggested various methods, such as “parole reform,” which we guess would mean changing parole rules, so that violators don’t necessarily go back to prison. Or “good time credits,” which could include both granting greater time off for good behavior, and letting more bad behavior count as good behavior. Or “evidence-based programming intended to reduce recidivism,” which simply means implementing services that are scientifically proven to actually reduce subsequent criminal behavior, as opposed to trying things that just sound good.

The court felt that building more prison space, the one obvious solution, was not something the court could order California to do, because it “may not be within the court’s general powers under the PLRA.” The PLRA, 18 U.S.C. §3626(g)(4) defines a “prisoner release order” as anything that has the effect of reducing or limiting the prison population. So the examples above would work. But one that merely reduces crowding — the problem to be solved here — doesn’t count, because it doesn’t reduce the number of prisoners.

We think that’s probably wrong. Building more prison space would solve the problem complained of. It may not be within the scope of the PLRA, but that’s not the sole authority that the court has. It has equitable power to order the state to do whatever works to stop the constitutional violations.

The court went on to say that California’s inmate population was about 200% of intended capacity, but reducing that population to about 120% to 145% would be sufficient. The court felt that this was the proper balance between concerns of public safety and prisoner rights.

The state immediately announced that it will appeal, of course. This will be one to watch, as pretty much every state is operating prisons beyond their design capacity, and fixes need to start happening soon. What happens here will influence how other states deal with the problem.

Supreme Court: Failure to Surrender ≠ Escape

Tuesday, January 13th, 2009

supreme-court.png

This morning, the Supreme Court returned from its long break to issue a unanimous ruling in Chambers v. United States (No. 06-1120, Jan. 13, 2009). At issue was the crime of failure to report to jail, and whether that crime is a “violent felony” for the purposes of the Armed Career Criminal Act.

ACCA imposes a mandatory 15-year sentence for a felon who unlawfully possessed a firearm, and who also has three prior convictions for either drug crimes or violent felonies. A “violent felony” is defined by 18 U.S.C. § 924(e) as one that (among other things) “involves conduct that presents a serious potential risk of physical injury to another.”

The government wanted Chambers sentenced to the mandatory 15 years, based on prior convictions that included an Illinois crime of failing to report for weekend confinement.

Chambers said that the Illinois crime was not a violent felony for the purposes of ACCA. The government disagreed, arguing that the crime demonstrates a “special, strong aversion to penal custody,” and therefore was akin to a prison break. And prison escapes by their nature involve conduct that presents a serious potential risk of physical injury to another.

The Court didn’t buy that argument. Unlike a prison break, which is an active crime, failing to report is merely a crime of inaction, the Court said. The Court added that, sure, the defendant must have been doing *something* during his absence from jail, but there is no reason to believe that it was something risky to others. On the contrary, he’s probably less likely to draw attention to his whereabouts by “engaging in additional violent and unlawful conduct.” Aversion to penal custody, no matter how “special, is beside the point.”

The Court added that, of 160 cases involving a failure to report in a 2-year study by the Sentencing Guidelines Commission, “none at all involved violence — not during the commission of the offense itself, not during the offender’s later apprehension.” The government itself could only find three examples in 30 years.

Because of this, the Court held that this particular crime does not count as a violent felony for ACCA purposes, reversed, and remanded.