Prisons and Society

The Summer issue is dedicated to mass incarceration and problems.

Dædalus was founded in 1955 as the Journal of the American Academy of Arts and Sciences and established as a quarterly in 1958. It draws on the enormous intellectual capacity of the American Academy, whose Fellows are among the nation's most prominent thinkers in the arts, sciences, and the humanities, as well as the full range of professions and public life. Features in the recently redesigned magazine include fiction, poetry, and a Notes section with original works by distinguished members of the American Academy.

Silvia Clute writes in Oped News that one solution is called Restorative Justice. Click on title of this post to link to her article about the Conference in the U.K.

Reforming Criminal Justice

NYRB has an interesting review of three books, by David Cole, called Can Our Shameful Prisons Be Reformed. November issue. Not much new here, but the problem is gaining in notoriety, perhaps.

One Parthenogenetically Reborn Business

American prisons make the inmates they are made for: the thesis of Prof. Sharon Dolovich and many works to whom she refers in her new SSRN piece (download here) to appear in Harvard Law and Policy Review symposium.

Mass incarceration has become a virgin birth industry. It keeps laying eggs and the eggs are us. From the view of an egg who both justice and society failed, and having collected a five year degree from the Texas Dept of Criminal Justice along with an M.A. in Government from Notre Dame, and J.D. from The American University, I could not agree more. Prof. Dolovich puts it all together.

Her title,

Incarceration American Style

Here is the RUNAWAY FREIGHT TRAIN which reproduces itself at great cost to the taxpayer:

"society never has to confront the fact that the perceived need to control an out-of-control population may stem from the conditions, both inside and outside the prison, to which the incarcerated have been subjected.

The absence of any meaningful re-integrative project is thus revealed as both cause and effect of the system’s reproductive success; without such a project, prisoners’ re-entry efforts will in many cases be doomed to fail, and one can expect no real social investment to reintegrate those regarded as (non)people unfit for society.

Here is an effective recipe for simultaneous social abandonment and continued carceral control, as those who have been incarcerated and subsequently deprived of any meaningful social or psychological support are sure to become ever more marginalized from the body politic, and the more marginalized they become, the more likely they are to wind up back in prison."

That troubles me. It could be you too, innocently convicted and trying to re-make your life. Do you know anybody like that?

There is hope here:

Emphasize "the humanity and individuality of the people we put behind bars. It is embodied in Taifa and Beane’s call for an evidencebased approach to tackling the risk factors for criminal conduct; in Judge Gertner’s endorsement of evidence-based sentencing practices and guided discretion; and even in Clear and Austin’s macro-level demand that policymakers reduce the prison population by eliminating mandatory sentencing.

The self-perpetuating character of the American carceral system will not be disrupted until society as a whole begins to see that it is fellow human beings we are incarcerating. Until this fact is recognized, the wise strategies for change proposed by these authors will not be widely or seriously considered. But once it is recognized, those same strategies will be irresistible.

Prison Reform and Justice Go Hand in Glove

New York could be the model for prison/crim justice reform efforts nationwide. See the NYT article here, contributed by Robert Gangi, executive director of the Correctional Association of New York, a nonprofit organization that monitors prison conditions.

Terrorism and U.S Prisons Update

A tad old, but here's a good update on the overall picture of America's prison problem. And it isn't Guantanano or terrorists that are the problem. As somebody once said, "we have met the enemy, and it is us". I am a proud American, and I think we can do better. Senator Webb, good luck. I'm on your side. Can I have a job?

From Slate: Guantanamo is the Least of Our Problems by Dahlia Lithwick.

Also from Corey Yung, America's Emerging War on Sex Offenders is the latest by America's top sex offense criminal law analyst.

This is the abstract:

This article addresses four central questions. First, what is the difference between normal law enforcement policy and a “war” on crime? Second, assuming such a line can be discerned, has the enactment of the Adam Walsh Child Protection and Safety Act (“AWA”) in combination with other sex offender laws triggered a transition to a criminal war on sex criminals? Third, if such a criminal war is emerging, what will be the likely effects of such a transition? Fourth, if such a criminal war is emerging with substantial negative consequences, how can it be stopped?
By reviewing America’s history of criminal wars, primarily the War on Drugs, the article identifies three essential characteristics of a criminal war: marshalling of resources, myth creation, and exception making. It concludes that the federalization of sex offender policy brought about by the AWA elevated law enforcement to a nascent criminal war on sex crimes. This change could have repercussions as substantial as the drug war has had on American criminal justice an society.

Yung has completed another article, about judicial activism.

Here, at the Economist, is a piece called America's Unjust Sex Offender Laws. Includes an audio interview podcast with Sarah Geraghty, a lawyer and activist for reform in Georgia.

Corruption, Greed, Prisons

America, we can do better. When judges are corrupted it takes a long time to undo the damage, as you can only imagine from this article about youth in Pennsylvania sentenced by two greedy (but well educated) judges. You can't make this stuff up.

Not your Chevrolet's America

Chevy, "this is America"

This past year, both the Republican and the Democratic Presidential candidates came out firmly for banning torture and closing the facility in Guantánamo Bay, where hundreds of prisoners have been held in years-long isolation. Neither Barack Obama nor John McCain, however, addressed the question of whether prolonged solitary confinement is torture. For a Presidential candidate, no less than for the prison commissioner, this would have been political suicide. The simple truth is that public sentiment in America is the reason that solitary confinement has exploded in this country, even as other Western nations have taken steps to reduce it. This is the dark side of American exceptionalism. With little concern or demurral, we have consigned tens of thousands of our own citizens to conditions that horrified our highest court a century ago. Our willingness to discard these standards for American prisoners made it easy to discard the Geneva Conventions prohibiting similar treatment of foreign prisoners of war, to the detriment of America’s moral stature in the world. In much the same way that a previous generation of Americans countenanced legalized segregation, ours has countenanced legalized torture. And there is no clearer manifestation of this than our routine use of solitary confinement—on our own people, in our own communities, in a supermax prison, for example, that is a thirty-minute drive from my door.

Thank you New Yorker Magazine, Atul Gawande et al.

Getting Down to Business

Reviewing some posts from Doc's place I could not help thinking that here is where we are (the greatest prison nation), and unfortunately, here is where we are going (same direction).

Criminal Justice Symposium

A criminal justice Symposium! The press release is at the link: "Alternatives to Incarceration"

Here's the meat:

Presenters at the symposium include federal and state judges, congressional staff, professors of law and the social sciences, corrections and alternative sentencing practitioners and specialists, federal and state prosecutors and defense attorneys, prisons officials, and others involved in criminal justice. Approximately 250 individuals representing the federal and state criminal justice communities, academia, and public interest groups have been invited to attend. Topics to be examined include –

* drug courts and treatment options for certain offenders;
* alternative sentencing options in the federal and state systems;
* restorative justice-based programs;
* prison programs resulting in reduced sentences;
* the Second Chance Act and re-entry issues; and
* collateral consequences of convictions.

UPDATE: A link to "Notes" is here, authored by Kent. The Sentencing Project makes waves there. Not taken seriously by the author of the notes. Apparently the transcript will be made available in E form. HT to Doc Berman (once more).

Risk Assessment and Prison

In this post, titled "Examining the School to Prison Pipeline, readers of Doug's blog respond with interesting comments on the topic of the overincarceration and undereducation of our nation's citizenry. It leads naturally to ask not why are so many low risk offenders being locked up, but how can you tell the low risk offender apart from the truly dangerous, and habitual. Is it really that difficult?

Prison Conditions and Other Petitions to Watch

You won't appreciate the facts alleged in this Bivens (Sec. 1983) case (on the list of petitions to watch at SCOTUSBLOG) unless you have seen the insides of our prisons.

At this link is the tail end of at least one more interesting action making it onto the list, involving removal of children from families and parental rights, that has been ongoing for ten years in Illinois (Dupuy, et al. v. McEwen).

Moral Panic

Over at Doug's blog, the latest in the saga of sex offender panic, and extra reading about this puritanical phenomenon:

"Moral Panic," by Philip Jenkins. Essentially a history of sex offenders in modern America. Also Carl Sagan's "The Demon-Haunted World," which has excellent chapters on the "satanic ritual abuse" fever that gripped the nation for a decade or more. Opened my eyes to the historical realities as much as Mike Gray's "Drug Crazy" did for the drug war when I was in high school.

Additionally, here is a post regarding our swollen prison population and which political party/politicians are responsible.

Prison Nation

Here is another Times piece on the topic of what I call American Gulag: Prison Nation. Thank you Doc!

Prison Talk

This site made news today. Thanks Doc!
This is the NYT piece on it, including many good references on prison culture and media.

Prison Nation: A Response

NYT Published: March 16, 2008 (more letters at link)

Editorial: Prison Nation (March 10, 2008)

Re “Prison Nation” (editorial, March 10):

The United States prison population is out of control. Minimalist efforts such as alternatives to incarceration and parole reform may be politically palatable, but they will have no significant effect.

The real magnitude of this issue can best be grasped through comparison with incarceration rates in Western Europe. The United States incarceration rate is five times that of Britain or Spain. If we reduced our prison population in half, then in half again, and finally in half again, we would have fewer than 300,000 men, women and children in our prisons and jails, rather than 2.3 million, yet our incarceration rate would still be greater than that of Germany and France.

The only way to meaningfully reduce our prison population is to decriminalize drug use and provide drug substitution and treatment to those in need. A national program of harm reduction is the only way to reverse what you have aptly described as a “Prison Nation.”

Robert L. Cohen
New York, March 11, 2008

The writer, a former medical director of the Montefiore Rikers Island Health Services, was appointed by the federal courts in Michigan, Connecticut and New York to monitor the medical care of prisoners.

Growth is Not Good

From Doc Berman, these statistics come home for the holidays:

Among many holiday season traditions for sentencing fans is the release by the Bureau of Justice Statistics of its national head count of the number of persons in State and Federal prisons, and the number of persons on probation and parole, at yearend the prior year. Here are links to these data-filled reports:

• Prisoners in 2006
• Probation and Parole in the United States, 2006

Here are some of the statistical highlights from this press release discussing both reports:

The U.S. adult correctional population — incarcerated or in the community — reached 7.2 million men and women, an increase of 159,500 during the year, the Justice Department’s Bureau of Justice Statistics (BJS) announced today in a new report. About 3.2 percent of the U.S. adult population, or 1 in every 31 adults, was in the nation’s prisons or jails or on probation or parole at the end of 2006.

The number of men and women who were being supervised on probation or parole in the United States at year-end 2006 reached 5 million for the first time, an increase of 87,852 (or 1.8 percent) during the year. A separate study found that on December 31, 2006, there were 1,570,861 inmates under state and federal jurisdiction, an increase of 42,932 (or 2.8 percent) in 2006.

During 2006 the number of inmates under state jurisdiction rose by 37,504 (2.8 percent). The number of prisoners under federal jurisdiction rose by 5,428 (2.9 percent).

In 2006 the number of prisoners in the 10 states with the largest prison populations increased by 3.2 percent, which was more than three times the average annual growth rate (0.9 percent) in these states from 2000 through 2005. These states accounted for 65 percent of the overall increase in the U.S. prison population during 2006. The federal system remained the largest prison system with 193,046 inmates under its jurisdiction.

Prison Nation

God Save America: Prison Nation

It has become sadly necessary to tell the following story. It is a true story. It is told in order to deter others from doing something, anything, that will result in their going to prison. Unfortunately, in the world of today a man or woman need not necessarily do anything at all wrong to wind up imprisoned. The story is also told to show the rest of those of us who would never transgress the law, ever, in any event, about what happens to those who do end up in prison. Because many have no idea.

It is told in order to describe the American mis-adventure. The American episode following the turn of the twenty-first century is full of division and fear, hate and loss, discontent and hopelessness. This is to paint the canvass of an America in the age of terror, of global warming, of gilded decadence and condominium towers and marble enclaves: while millions overseas face starvation, malnutrition, disease, famine, remaining as prisoners of their own state and downtrodden and exploited by their own governments, America and the West shine on oblivious to the rest of the world.

In the 1990s Congress took away most of the teeth in the federal habeas corpus review of incarcerated prisoners’ claims of wrongful imprisonment and made it harder to obtain relief and easier to dismiss claims: Congress in 2006 specifically pared back habeas jurisdiction for prisoner “detainees” at Guantanamo and elsewhere in military custody in the so-called war on terror, just as many others in Congress and in the universities and human rights communities are now doing their very best to try to reinstate these fundamental rights. They do so for very good reasons.

The fundamental right to review of one’s detention is a precursor for justice that is as old as the magna carta. Without it, no person, man or woman is safe from the complete devastation of life wreaked through the long reach of arbitrary state power. Lawyers for American residents and citizens accused of terrorist crimes have said that their clients have been threatened with indefinite detention as “enemy combatants” if they refused to plead guilty to the government’s accusations against them. That kind of leverage would only be possible if and when habeas corpus has been stripped away. The consequence, surely unintended, is that the fundamental right to a fair trial has thereby also been stripped away.

There is a certain stigma attached to prisoners and accused persons both, so that the same stigma attaches to the lawyers and others in the community who represent, and try to help them. But there are many many in the community who nonetheless fight very hard for prisoners -- terrorist and criminally committed alike -- in order to ensure that justice is served and that justice is also preserved. And well they should. Then too, ours is a society in which sex offenders are made to live under bridges because of restrictions on residency making it impossible to find housing. That is surely not justice served or preserved at all.

What the hell is going on? We plaster the internet with registries of offenders, painting them all with a scarlet letter and green license plates regardless of whether they are actually ill, truly dangerous or present little or no risk of re-offending, making it easier to arrest them at the drop of a hat, driving the most dangerous underground, making it impossible for families of one-time offenders and statutory offenders, themselves hardly more than children, and young offenders and victims themselves to lead a normal life free from stigma, impossible to earn a normal living, and thus creating an atmosphere filled with fear and hate, and hopelessness and discontent.

All of this is driving a violent, drugged out, workaholic, numb, in-the-fast-lane, materialistic society into even greater violence, greater division, and greater moral and spiritual bankruptcy. Too many who do not belong in prison are put there, and there they languish, to be forgotten, to become fodder for the prison state that America is fast becoming. How many lives are connected to a single prison cell? To ten cells? Thousands? Millions? Many are guilty, many are not. Many got what they deserved. Many did not.

Society has been served with a bill of goods.

Better Alternatives to Prison Wanted

Detailed in this press release, The Pew Charitable Trusts today released an important new report entitled "Public Safety, Public Spending: Forecasting America's Prison Population 2007-2011." The press release has this description of the reader-friendly report (which is available here): (thanks to Prof. Berman)

By 2011 one in every 178 U.S. residents will live in prison, according to a new report released today by the Public Safety Performance Project of The Pew Charitable Trusts. Public Safety, Public Spending: Forecasting America’s Prison Population 2007-2011 projects that by 2011 America will have more than 1.7 million men and women in prison, an increase of more than 192,000 from 2006. That increase could cost taxpayers as much as $27.5 billion over the next five years beyond what they currently spend on prisons.

"As states continue to struggle with tight budgets and competing priorities among health, education and safety, they are beginning to question whether huge additional investments in prisons are the most effective and economical way of combating crime," said Susan Urahn, Managing Director of State Policy Initiatives at The Pew Charitable Trusts. "The challenge for state policy makers is to ensure that taxpayers are getting a strong return on their investment in corrections: safer communities, efficient use of public dollars, and ex-offenders who become productive, law-abiding members of society."

Some recent related posts are available at Prof. Berman's: (hat tip)

Prison Litigation Reform: Jones v Bock, 549 U.S. ___ (2007)

Does saying the court has gone too far ... in the minority circuits on this issue portend generally the end of broadly "anti-prisoner" reading(s) of PLRA and possibly also AEDPA constricting judicial review (review used in generic sense) of prisoner litigation, including habeas, undertaken in the lower courts at the purported direction of these Congressional acts?

My earlier post and update here, on these consolidated prisoner's appeals of dismissal of 42 U.S.C. 1983 actions against prison officials.

Telephone Injustice III

NEW YORK---Over 50 individuals, 38 organizations and 15 elected officials have moved for permission to file "friend of the court" briefs with the Court of Appeals in support of the pending appeal by the friends, family members, and attorneys of New York State Prisoners. CCR also filed the reply brief in the case, Walton v. New York State Department of Correctional Services, completing the parties' briefing schedule before the high court.

The Center for Constitutional Rights is representing the plaintiffs."This brings us one step closer to ending the unlawful kickback contract between MCI/Verizon and the Department of Correctional Services", CCR attorney Rachel Meerpol said. "The amicus briefs filed show that support for ending the contract and creating just rates for prison families is broad and deep: we hope that the court will take notice, but also that the new Governor will do the right thing and put a stop to this unlegislated, backdoor tax as one of his first priorities."

The lawsuit seeks an order prohibiting the State and MCI/Verizon from charging exorbitant rates to the family members of prisoners to finance a 57.5% kick back to the State. MCI is currently charging these family members a 630% markup over regular long distance consumer rates to receive a collect call from their loved ones, the only method of calling from a DOCS institution.Judge George Ceresia of the Supreme Court of New York, Albany County , dismissed the suit last fall, citing issues of timeliness, and the Appellate Division affirmed the decision. In July 2006, the Court of Appeals agreed to hear the case. Oral argument is scheduled for Jan. 9.

Betsy Gotbaum, Public Advocate for the City of New York has filed a proposed brief on behalf of herself and 14 members of the New York City Council, including Gale Brewer, Yvette D. Clarke, Bill De Blasio, James Gennaro, Robert Jackson, Letitia James, G. Oliver Koppell, Miguel Martinez, Hiram Monserrate, Annabel Palma, Diana Reyna, Larry B. Seabrook, Helen Sears and Kendall Stewart supporting the appeal in light of the disproportionate impact the State's policy has on New York City residents. The brief focuses on the importance of prisoners maintaining contact with their loved ones to advance the rights of children growing up in New York with an incarcerated parent and to increase safety and decrease crime in New York City neighborhoods.

The Innocence Project has moved to file a friend of the court brief on behalf of itself and the Incarcerated Mothers Program documenting the compelling situation of individuals falsely convicted of crimes, and the importance that phone calls to their loved ones played, and continues to play, in their ability to reconnect to their community upon their exoneration. The brief also analyzes the myriad constitutional deficiencies of the current system. --The Law firm of Kramer Levin Naftalis & Frankel has written a proposed brief on behalf of The Sentencing Project, the NAACP Legal Defense and Educational Fund, the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, the Women's Prison Association, the Legal Action Center, the Fortune Society, the Center for Community Alternatives, Citizens United for Rehabilitation of Errants, the Justice Policy Institute, the Southern Tier Advocacy & Mitigation Project, Equal Justice Initiative of Alabama, the Parolee Human Rights Project of the New York City AIDS Housing Network, AdvoCare, Inc., Voice of the Ex-Offender, the Community HIV/AIDS Mobilization Project, and the Real Cost of Prisons Project. The brief traces established social science research completed in the last century unequivocally establishing the critical role family and community ties plays in the rehabilitation and re-entry of former prisoners.-- Legal Aid Society has requested leave to submit a brief on behalf of itself, The Center for Law and Social Justice and the Bronx Defenders, all organizations that are forced to pay the high rates of calls from New York State Prisoners in the course of their representation of advocacy efforts. Legal Aid's brief discusses the adverse impact the high rates has on provision of legal services and urges the Court to correct this continuing injustice.--Legal Services for Prisoners with Children, has requested leave to submit a brief on behalf of 16 organizations devoted to providing services and support for the family members of prisoners and prisoners themselves, including Bridge Street Prison Ministry Outreach, Bronx HIV Care Network, Citizens for Restorative Justice, Coalition of Families of New York State Lifers, Coalition for Parole Restoration, Ebenezer House of Deliverance Prison Ministry Outreach, Justice Now, Hour Children, New York Inmate Families, NewYorkPrisoners.com, Parents in Action, Prison Action Network, Prison Families Community Forum, Prison Families of New York, Inc., and Take Higher Ground, Inc. Over 50 family members, friends, and ministers of prisoners have also signed on. The brief includes accounts of the impact of the high cost of telephone rates on the loved ones of prisoners.

The full text of each brief is available on CCR's website at www.ccr-ny.org

Source: North Country Gazette, December 28, 2006 and
lauren melodia center for constitutional rights 666 broadway 7th floor ny ny 10012 212.614.6481