State of (the) Prisons: Thoughts on State of the State Speech

Here are some initial thoughts about the Governor's speech, in no particular order:

It seems that, in general the Governor's heart is in the right place. It is, indeed, disturbing that our budget allocates more money to education than to corrections. However, the solution he advocates--contracting with private companies for out-of-state housing rather than releasing prisoners--is disappointing and may backfire in the budgetary sense.

It is telling that the press release emphasizes, in bold letters, that the new measure prohibits releasing prisoners as a way of cutting costs. The rhetoric is, of course, familiar. The press release plays on public concerns by invoking the image of prison doors opening and tens of thousands of dangerous criminals walking out. However, as we recall from the original Governor's proposal back in May, Schwarzenegger himself proposed several important measures, such as good work credits, alternatives to parole violation measures, and some legislative changes to allow prosecuting some current felonies as misdemeanors. Do these measures count as "inmate release"? No proposal ever intended to do what the Governor's rhetoric suggests - opening the doors and letting massive amounts of inmates walk out - but all proposals, from the Plata/Coleman panel order to the CDCR plan to the plan advocated by the Governor himself, adopted such measures to reduce prison population. Does this new measure preclude only mindless mass releases, or also sensible reform? Will we still see these healthy steps occurring, in addition to privatization and prisoner export?

The other important question is whether exporting our inmates to other states, and paying for their incarceration there, is really cost-effective. In a blog post yesterday, Jonathan Simon characterizes this fiscal measure as "reducing spending on prisoners, not . . . reducing prisoners." But does out-of-state incarceration really reduce expenditure per inmate in the long run? I have tried to find studies that compare recidivism rates between in-state and out-of-state inmates, and have not found anything. Perhaps this dearth of research stems from some methodological issues; as this study demonstrates, it is very difficult to measure the link between mode of incarceration and recidivism, because recidivism might be linked to factors that also led to differential incarceration modes. The out-of-state issue presents additional complications, as demonstrated by this Ohio study; it is difficult to measure recidivism across states, given the differences between different state criminal codes. Nevertheless, these methodological issues do not present insurmountable hurdles, and it would be an interesting exercise to conduct a study that examines whether out-of-state incarceration increases recidivism. In formulating an (empirically untested as of yet) hypothesis about this, it would stand to reason that when someone is incarcerated far away from family and friends, and has no support system, one stands on a less solid ground upon release and is therefore more likely to reoffend. If our readers have other opinions on the subject, we look forward to reading them in the comment section.

We know more, however, about recidivism rate comparisons between private- and public-prison-housed inmates. This Florida study, for example, found no significant differences between inmates housed in private and public facilities. As the authors say, any argument on behalf of privatization should be based solely on costs, not on rehabilitative potential. I would add that, given our concerns about sustainability in the long run, opting for a privatized system should also examine whether the volume of prisoners is likely to remain the same, which will necessitate continued reliance on out-of-state private institutions for our inmates for many years to come.

Another aspect of this issue is the broader national disparity between states who house their prisoners out-of-state and states who farm out their prisons and make business off of other states. In a previous post by Jesse, we briefly discussed this ACLU report, which praises Michigan for achieving a 8% prison population reduction by closing down eight prisons and relying heavily on reentry mechanisms. The irony is, of course, that while these commendable policies are helping Michigan get out of the political logjam and solve its own correctional crisis, Michigan is exploiting our inability to do the same by trying to rent out its prisons to us. I find this rather grim and thought provoking.

Finally, in reading the Governor's proposal, I want to suggest that while the new measure might prohibit releasing prisons to release cost, it certainly does not prohibit doing so in order to comply with court orders. Assuming that the Supreme Court will not overturn the Plata/Coleman decision, there is still hope that at least some of the population reduction will be achieved by strategies that tackle not only population rates, but recidivism rates.

I look forward to hearing your thoughts on the Governor's plan.

Schwarzenegger Confronts Prisons in Speech

By now some of you may have caught Governor Schwarzenegger's State of the State speech today. The full speech can be accessed here. And, here is the Governor's proposal, titled "Reshaping our Priorities to Shift Funding from Prisons to Universities". Among other things, the proposal reads:

To realize cost savings in corrections, the amendment expands the authority of the California Department of Corrections and rehabilitation (CDCR) to lower costs by contracting with entities outside state government for prison operations and services. In line with the Governor’s commitment to public safety,the measure prohibits releasing prisoners early as a means of reducing costs.

ALI Abandons their Support of the Death Penalty

The American Law Institute has decided to give up their death penalty work. The New York Times reports:

The institute’s recent decision to abandon the field was a compromise. Some members had asked the institute to take a stand against the death penalty as such. That effort failed. Instead, the institute voted in October to disavow the structure it had created “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”

That last sentence contains some pretty dense lawyer talk, but it can be untangled. What the institute was saying is that the capital justice system in the United States is irretrievably broken.

A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.

Roger S. Clark, who teaches at the Rutgers School of Law in Camden, N.J., and was one of the leaders of the movement to have the institute condemn the death penalty outright, said he was satisfied with the compromise. “Capital punishment is going to be around for a while,” Professor Clark said. “What this does is pull the plug on the whole intellectual underpinnings for it.”

__________________

Props to Michele Armstrong and Charles Cameron for the link.

Two Bites at the Apple: The Power of Suspending Imposition of a Sentence

Dr. Aviram has graciously permitted me to post my thoughts on one aspect of the criminal justice system that I came across in the course of a recent externship. In one particular case before our court, a trial court judge suspended imposition of the defendant's sentence. Although it was not the subject of the defendant's appeal, I was fascinated by the process and felt it shed light on a Judge's role and the power of the criminal justice system. Here is how the process works in a hypothetical where I have changed the facts and names in the case:

Hypothetical

18-year old Adam Smith went out drinking late one night with a friend. After some heavy drinking, they take some cocaine Smith's friend brought along. Intoxicated and high on drugs, they decided to throw fruit at cars from a walkway on an overpass. One orange seriously dented the front hood of a police officer's vehicle as the officer was finishing her shift for the night. The two friends began laughing, but realized it was now time to run. When the police officer caught up to them, Smith's friend immediately gave himself up but Smith defiantly resisted and tried to punch the police officer, striking her left shoulder and forcing the police officer to use her police taser.

On the advice of his public defender, Smith entered a guilty plea before Judge Foltz, known for her cautious leniency towards defendants who admit their crimes and save the taxpayers the expense of a long trial. At sentencing, Smith insisted that his crimes that night were childish indiscretions. He told Judge Foltz that a few days before the evening in question, he found out his father was cheating on his mother and that they would be getting a divorce. Depressed and in need of "self medication" he went out and tried drugs for the first time, and made a series of poor decisions because his friend thought cocaine would make him feel better.

Smith maintained that he was simply rebelling against the situation when he went out and did not know how to handle himself. His acts were the unfortunate byproduct of not being in his right state of mind. He promised it would never happen again. Smith's parents testified on his behalf, and lamented that really, this incident was all their fault. Judge Foltz was reluctant to take Smith at his word, but she sympathized with his argument that it was a youthful indiscretion and found no evidence that Smith was a "bad apple." To avoid letting him get off "scott free" for what are serious offenses but also to not unnecessarily institutionalize an otherwise good kid and ruin his prospects of college, she told Smith that she would suspend imposition of his sentence and place him on probation for a period of three years if he made restitution for any damage. Only days before his three year probation was to be over, Smith robbed an elderly woman at gunpoint at an ATM.

Now Smith went before Judge Holmes, known for his no-nonsense approach to criminal defendants. Because Judge Foltz suspended imposition of Smith's prior sentence, Judge Holmes gets to determine the sentence for all three crimes: the first two crimes (vandalism and assaulting a police officer), as well as the subsequent crime, armed robbery. Holmes throws the book at Smith, giving him the statutory maximum for all of the crimes, including a mandatory 10-year sentence enhancement for using a gun during his robbery, giving him a total of 25 years in jail. Smith now wished he hadn't gotten off "scott free" in front of Judge Foltz, and simply received a reduced sentence.

Commentary
It's easy to see the downside to a defendant where a Judge suspends imposition of a sentence. A subsequent Judge will sentence the defendant knowing what crime the defendant went on to commit, and that inevitably colors a Judge's perception of the defendant's earlier offense. Judge Holmes looked at the mitigating circumstances of the original offenses differently from Judge Foltz, and rather than seeing them as youthful indiscretions, saw a young man committing crimes of escalating seriousness who did not take advantage of the break Judge Foltz gave him. Holmes likely felt that leniency would not do Smith any favors, who did not seem to learn from his mistake when he avoided prison time following Smith's first encounter with the justice system. Moreover, Judge Holmes was forced to make his decision about the subsequent crime while carefully examining the details of a prior crime necessary to formulate his sentence, making the Judge less sympathetic about any mitigating circumstances of the subsequent offense as well.

There's an obvious objection to this tool, which is that the subsequent crime cannot be considered as part of the sentencing of the original offense and vice-versa. Strictly speaking, they can't. But a Judge probably cannot escape what he or she knows about the defendant's subsequent and prior conduct, and thus whatever mental barriers which have been erected to compartmentalize the analysis are likely to be ineffective. A judge may simply be careful to not articulate her sentence for the earlier offense in terms of what happened in the subsequent crime.

The constitutionality of statutes which authorize judge's to suspend imposition of a sentence has already been affirmed. Moreover, it's not clear eliminating such a power would necessarily change the outcome. In Peterson v. Dunbar 355 F.2d 800 (1966), a court affirmed the statute granting the right to Judge's to suspend imposition of a sentence and noted: "If there be any merit in appellant's argument, the obvious alternative, still available to the judge, is to start at the top instead of at the bottom-- to impose the maximum sentence at the outset, suspend its execution and subsequently vacate it if probation is successful, or, should probation be revoked, reduce it to the extent, if any, then felt suitable."

From a Judge's perspective, suspending imposition of a crime is preferable to granting a lesser sentence. Such a tool allows a Judge to distinguish between a "career criminal" and a someone who committed a "youthful indiscretion" while preserving the system's ability to revisit the issue in light of subsequent conduct. It is likely that the tool allows a Judge to grant mercy more often by reducing the cost of leniency and allows a more accurate sentence in a subsequent proceeding because of superior information. Moreover, with the prospect of an even harsher sentence the second time around, it can serve as a greater deterrent to subsequent crime. Of course, this assumes the criminal mind rationally calculates his or her behavior based upon the length of sentence.

Nevertheless, suspending imposition of a sentence may satisfy both the DA-minded and PD-minded alike by keeping one-time offenders out of jail but increasing the sentence of repeat players. Many lawyers would appreciate the increase in discretion such a tool affords a judge, although others might fear the punitive aspects of its application. But on the whole, the ability to suspend imposition of a sentence increases the discretion of a Judge and therefore reduces the power of other institutional actors like prosecutors who might vigorously oppose leniency under any other circumstance.

It's unclear whether suspending imposition of a sentence increases prison time on an aggregate basis or reduces it. If I were trying to generate a hypothesis on this point, I would start by determining how many repeat players are in the system. If the numbers of repeat players are extremely high, then suspending imposition of a sentence is likely to increase prison overcrowding on the whole. Additionally, I would look to what kinds of crimes Judge's typically apply this tool towards to see how much it reduces prison sentences. In my hypothetical the bulk of the defendant's prison sentence is still coming from the armed robbery and the mandatory sentence enhancement.

In any event, it's a fascinating tool and has important implications for sentencing, overcrowding, and judicial economy.

Penny-Wise and Pound-Foolish

The Mayor of Newark blogs about a reentry initiative in New Jersey, emphasizing that the initiative is bipartisan and builds on broad collaboration between different political actors.

Some are quick to point out that certain provisions of the state bills would cost money at a time of tremendous fiscal strain – adding millions to the state budget in the near term. Many of these people are using this understandable concern to reflexively oppose this legislation. However, the cost of doing nothing simply leaves the tremendous expense of arrest, adjudication and incarceration to fester and grow larger and more burdensome in coming years.

We cannot be penny-wise and pound-foolish. The time to act is now. If implemented effectively, the bills not only have the ability to pay for themselves but can provide significant savings to taxpayers in future budget years. This is not fantasy or fiction; the proof can be seen in the active bipartisan success so evident in Newark right now.

Prisons and Budgets

Today's NYTimes editorial "Prisons and Budgets" at http://www.nytimes.com/2010/01/04/opinion/04mon3.html?ref=opinion lauds state legislatures for corrections policy changes with positive fiscal impact. The piece calls 3-Strikes "overly harsh" and calls the Florida law mandating serving certain percentages of sentences "dubious corrections policy and terrible fiscal policy."

My favorite citation is their use of the ACLU National Prison Project's new report "Michigan Breaks the Logjam: A New Model for Reducing Prison Populations." Michigan reduced its prison population by over 8% in about half a year, primarily through justice reinvestment. This leads me to think about how many more teachers, students, doctors, nurses, patients, etc. California could afford to subsidize, were we to reduce our state prison population by as much as 8%.

Happy New Year from the CCC Blog

(art courtesy: Jacob Barrett for The Real Cost of Prisons)

Happy 2010 to all our readers! May this be the year in which we make sensible, fact-based, and humane decisions in criminalization, law enforcement, and corrections.

Best,

Hadar