Monday, April 30, 2007

News and Blogs Together, April 30, 2007

  • Another analysis of the recent "solution" to CA's prison problems, from the Christian Science Monitor (and "solution" is their word). While the article does get that CA has found its “solution” now and anything else is unlikely, there is so much wrong here besides what Barb Tombs notes and proclaiming her director of Vera. No one has ever shown that guidelines are the best policy option, only that they are better than what CA just did. The states with effective incarceration rate reduction also, coincidentally, put a lot of resources and support into community alternatives, and you would get far more bedspace reduction with either developing technocorrections or putting counties on vouchers that limit prison availability for the offenders they sentence. But the worst thing wrong here is the continued mythology that prisons are “tough on crime.” They are tough on criminals. Crime does pretty well compared to the other things that we can do that stop it better, and the continued concurrence that prisons are tough on it only feeds the false perception that reforms will endanger public safety. Until we get straight on that, we might as well forget having serious change in the cost-ineffective way we protect the public and potential victims. Meanwhile, at least some of the CA media understand what’s happening there (h/t Real Cost of Prisons).
  • We talk here a lot about the inadequacy and dangers of eyewitness testimony. Empirical Legal Studies finds an interesting article on reform of the process in MA here.
  • Perhaps such testimony will be more helpful with this self-administered interview tool for witnesses at the crime scene which reportedly helps victims and witnesses do over 40% better at reducing "memory decay" than those who don't use it.
  • Expect to see related research in Deliberations, a new blog on"law, news, and thoughts on juries and jury trials" which Psychology and Crime News tips us to, along with its current topics being posted.
  • New drug to watch out for. A club drug with 1-benzylpiperazine (really) that has sent some young folks to emergency rooms. Originally developed for veterinary use (really). Manufacturer says 20 m. of their pills were consumed in New Zealand with no deaths or "significant long term injuries." Another scare drug or actually a serious one? Guess we'll find out. Meth's sorta fading.
  • Wait, no, it isn't. Another story on how the local meth entrepreneurs have been run out of business, to be replaced by Mexican sources, which are just a tad different to police, this time in AR (Arkansas, not Arizona). Think we've forgotten marijuana here? Of course not. Scientists are finding through MRIs the areas of the brain affected by pot, implicating it in schizophrenia and psychosis if used heavily. Maybe they can use this study of how pharmaceutical treatment of dopamine -related illnesses like schizophrenia (and Parkinson's) can cause people to adopt impulsive, risk-seeking behavior. You know what this means--TECHNOCORRECTIONS!!!
  • Finally, at Prevention Works, enlightening info on cyberstalking and, as usual, what you can do to protect yourself. It's Lifetime made-for-tv movie scary, but this is true stuff. Give them the hit they deserve.

Sunday, April 29, 2007

Advisory Council on Technocorrections


Your state faces rising correctional costs as far as the eye can see. These rising costs not only drain taxpayer dollars from communities and their schools, health care, transportation, and economic development. They also take resources away from other important areas of criminal justice—juvenile justice, mental health, law enforcement, jails, prosecution, and courts. If those correctional costs could be controlled or, better, reduced through effective non-incarceration techniques, state taxpayers might receive more relief without jeopardizing public safety or potential victims.

As you look at the rising costs, it is clear that much of the increase comes from substance abuse offenders, directly and indirectly. Other long-term costs come from sex and/or violent offenders receiving extended prison terms. As policymakers continue to add more years to sentences in order to deter these offenders, they age and subsequently require more expenditure for health and other reasons. If you could find non-incarcerative ways to control their offending at less expense, you would free up bedspace and reduce costs without causing more crime and victims.

In your door walks a salesperson, a different kind of salesperson selling a different kind of product, a more technological product than has been offered before. Maybe it’s improved surveillance technology, enabling you to know and stop offenders from leaving house arrest, work release, or GPS monitoring the instant they try. Maybe it’s new pharmaceuticals that bind to cell receptors in the offender’s brain or modify them to stop cravings for alcohol or drugs or to weaken impulsive behavior. Maybe it’s a bioengineered product using viruses to carry and insert a new segment of DNA that will change those brain cell receptors genetically. Maybe it’s a mechanism to control certain parts of the brain to prevent violent outbursts, sexual needs, or compulsive risk-taking.

Immediately you think, wait, this sounds too new and too much like science fiction. It smacks of 1984, Brave New World, or “Minority Report.” We can’t do these things to people. Ah, the salesperson says with a smile, but you can deprive a person of freedom for decades at enormous costs to other needs that the good people of your state face. And besides, the salesperson finishes, leaning forward with that smile, you’re already doing it to a great extent. What’s a little more? It will cost you so much less than prison beds, and the once-were offenders will be in the community paying taxes, keeping that community and their families together, and living constructive, not destructive, lives. The salesperson leans back and waits for your answer.

What do you say?

As you know from our discussions here, this all deals with what Tony Fabelo in his 2000 NIJ paper called "technocorrections," a clarion call for attention to the rapidly emerging technologies and perspectives emphasizing surveillance, pharmaceuticals, and bioengineering to master our even more rapidly emerging correctional population crises. His work needs to be read in its entirety to appreciate his expertise and prescience on this, but here we will just focus on his concluding recommendations.

Fabelo ended his wake-up with a call for “values-based technocorrections.” “There needs to be a consensus about a values framework for promoting appropriate technocorrections,” he said. And he called for three initial steps in its development:

· Sponsoring an initiative to identify emerging technologies, indicate how they might be applied to corrections, and provide scenarios for applying them, with timelines of their marketability.
· Organizing private and public symposiums to develop scenarios of how best to apply the technologies, identifying and weighing the anticipated benefits and disadvantages of each technology profiled.
· Developing model policies, for consideration by State policymakers, that minimize the potential threats in applying the new technologies in a correctional setting.

However, despite the clear importance of the topic and a later plenary session on it at a conference of the National Association of Sentencing Commissions, as technocorrections continues to advance, it is clear that none of Fabelo’s questions or concerns has been mitigated. If anything, they have been greatly enhanced. So, the question becomes, in the face of the promises and dangers of technocorrections, what can be done?

One of the problems with Fabelo’s call for action, the development of awareness and networking of public and private entities around the need for planning and structuring, was that he proposed no mechanism to form and coordinate this response. He may have thought sentencing commissions would take up the cause. In theory, these bodies could address the issue, but, for reasons of sunk costs and operating procedures, political balancing and legislative prescriptions, that is not likely to happen. Indeed, the proof is that it hasn’t happened in the years hence.

That does not mean that Fabelo’s recommendations and action plan are doomed. It just means that states need to create specific structures for their development and implementation. They need to create councils devoted specifically to technocorrections that can then provide research, information, guidance, education, and warnings to policymakers as the technologies expand and colonize our correctional policies and operations.

What would, say, an “Advisory Council on Technocorrections” (ACT) look like? Here’s one possibility.

Since the issues associated with technocorrections involve biotechnology applied to corrections of adults and juveniles, ACT should be composed not only of the state directors of corrections, probation, parole, and juvenile justice, but also of health, mental health, and substance abuse treatment, as they are configured in the individual states. ACT could operate out of the governor’s office, a department of administration or corrections, or a legislative bureau. To support these busy directors, ACT would also oversee a support committee made of research, treatment, and administrative representatives of each state department and of designated university specialists in science and engineering. This latter body would use their representatives’ support staff to produce each year a draft report on use, costs, and the near future of technocorrections as well as making recommendations for state action. ACT would then consider and approve its version of this report for an Annual Report and Recommendations to the governor and the legislature.

What would ACT’s focus and jurisdiction be? While not forgoing discretion to expand as necessary as technology evolves, ACT would be required to address at least five areas each year: ethics, monitoring, implementation, research, and education. Ethics would include development of standards for adoption and practice of any technocorrections sanctions or treatments as well as preparation of complaint and challenge mechanisms. Monitoring would include oversight, program review, and evaluations of any ongoing technocorrections practices as well as analysis of the fiscal and social impact of proposed legislation and regulations. Implementation would include planning and coordination within and across state and local agencies as well as liaison with private organizations and the federal government to resolve jurisdictional and liability disputes.

Research would include provision and oversight of grant funding to appropriate bodies to test, pilot, and review technocorrections activities in the particular state as well as holding annual research conferences and sponsoring peer-reviewed journal articles and books on technocorrections applications and problems. Education would include development of materials, workshops, and counsel to assist public knowledge and consideration of technocorrections as well as ensuring adequate comprehension of trial practitioners and of policymakers of the advantages and disadvantages of specific technocorrections alternatives as well as technocorrections generally.

Each ACT annual report would detail its activities and outcomes in these five areas and in others that might arise. From its work, the governor and the legislature would each year receive a blueprint to guide both the cost-effective and the ethical use of technocorrections in their state for the long-term future. From that, the policymakers could shape needed legislation to maximize the cost-effective public safety benefits that could be obtained in the balance with protection of traditional and dear American civil liberties.

Let's review.

Costs of corrections have climbed consistently for three decades and will climb for most states even more as releases are delayed and aging offenders entail higher expenses in the future, even if prison and probation intake level off. The latter is not reliable cost-reducer historically. Every dollar going to corrections is a dollar unavailable to other vital areas of criminal justice and public safety and to the community building and maintenance services that deny growth to more crime. States are already considering alternatives to traditional corrections in order to slow their rising costs, and many of their decisions involve the front edge of a growing use of technocorrections—surveillance, pharmaceuticals, and bioengineering.

Technocorrections has and will have advocates seeking the lucrative future it promises. If substance abusing offenders, or violent offenders, or sexual assaulters of children can be stopped or limited without incarceration and with less cost daily, then the salespeople will have pitches too attractive to ignore. The prospect of removing the high percentages of inmates (and their expenses) in every state who can be subjected to technocorrections may cause policymakers to adopt these new alternatives without adequate planning or needed deliberation of the possibly negative results.

Fears of immediate and relatively known dangers can drive the public and their representatives to adopt policies that, in hindsight, threaten individual freedom and American values in the name of short-term security. To prevent that, a few observers have called for action now to plot out the costs and benefits clearly and to think through decisions intelligently and rationally in advance. One means to accomplish that would be to create a state council of the relevant department heads, backed by research, treatment, and management specialists in their agencies, to develop, coordinate, and disseminate information and materials to guide policymakers and practitioners along the technocorrectional journey on which they have already embarked, unguided.

With solid, defensible data and information, policymakers and practitioners can direct appropriate and cost-effective technocorrectional alternatives to offenders who will then be removed from our prison cells and probation caseloads. They will be able to do this well aware of the pitfalls and dangers that might accompany those alternatives or others better left unchosen. The end product will not be the unplanned and uncoordinated adoption of these approaches, as is beginning to occur. The end product will be the careful and thoughtful application of sanctions and treatments that will maximize both public safety and use of public dollars.

Surely this is worth more active discussion, planning, and implementation than we've managed to give Fabelo's prophetic call to this point.

Saturday, April 28, 2007

Latest Report on SAC Analyses

You may remember that from time to time I talk about work done by state Statistical Analysis Centers, the repositories and distributors of important criminal justice data and research which are coordinated by my old employers (they're not that old, really) at the Justice Research and Statistics Association. Well, JRSA has just put out its latest compendium of SAC research and sent along to us this notice which we will pass along here. We used to talk about the "underground libraries" that each state had of its own independent analyses that, if people knew about them, would add tons to our knowledge of crim just policy. JRSA does a great job in bringing all the SAC "underground" work to us so stop by sometime and see what you find. I'll bet you finding something good.

The latest issue of the SAC Publication Digest is now available on the Web site of the Justice Research and Statistics Association. This Digest contains abstracts of state Statistical Analysis Center (SAC) reports published July-December 2006, including reports produced for the SACs by outside authors or organizations. The SACs are state agencies that collect, analyze, and disseminate justice data, and these reports cover a wide array of topics and analysis approaches for criminal justice data at the state level.

To view this issue of the SAC Publication Digest, go to and choose Digest #5 from the drop-down menu. You can also search this and previous Digests by keyword.

Friday, April 27, 2007

Good Thing TX Doesn't Have Guidelines

2-year-old hands pre-school teacher bag of coke (story here). Being TX, although she probably has no priors, her sentence will likely depend on the actual amount of cocaine she possessed and on TX law about quantities and mandatories.

Ripe for MRI Profiling and Technocorrections

Via Mind Hacks, this article gives you a very good overview of the possibilities of predicting the folks who are high risk and low risk to do things wrong over and over (not talking about CA here--that's a whole state and another story). There are identifiable brain responses in the two types, as the experiments described indicate.

All of the subjects in this experiment were healthy university students. This is important because it means that even those at the extremes of the impulsivity scale were in the normal range. None were in jail, for example, and it's unlikely many are heading there. But those with this early antisocial bent could well be heading toward some difficulties in life. Other EEG studies have linked the same weakened electrical pulse to a deficit in such traits as sense of duty, responsibility and reliability. Such personality deficits may not be pathological, but they reflect a lack of conscientiousness about detail that makes for less than ideal workers, spouses and citizens.

Or, uh, "law-abiders."

The author didn't really relate it to technocorrections, but it doesn't take much smarts. If you can build profiles of brains of people with low capacity to learn from mistakes (like punishments) compared to high capacity, then, yeah, you might be able to be positively preemptive but the urge to do so negatively will be really high, too. Do I need to repeat how much we need to be talking about these things sooner rather than later?

More on CA Legislation

I made the point yesterday that CA passing the bill to add prison beds without getting the other reforms like a sentencing commission at the same time has historically led to more cost and buildup and substantial delay and lost opportunity for the reforms in states like WI. Seems that others there have made the same connection, as this article on the bill makes clear:

. . . the package excluded any effort to deal with the state's discredited parole system. Also omitted was a commission to review California's Byzantine sentencing laws. A third proposal that has drawn particularly high marks from criminologists — to move 4,500 nonviolent female offenders out of prison to correctional centers near their homes — was missing from the agreement as well.

"This is a deal about practical politics and beds," said Franklin Zimring, a professor and corrections expert at UC Berkeley's Boalt Hall School of Law. "So it's going to satisfy the Sealy mattress company, and that's about it."


"In keeping with this casual approach to our state's finances, there is absolutely nothing in this measure to contain costs," said Sen. Tom McClintock (R-Thousand Oaks).

The true cost of the $6.1 billion in lease revenue bonds at the heart of the deal could reach $15 billion, including financing, with no voter approval required. About $1.2 billion would come from California counties.

"I find it very troubling that we're still acting so recklessly even as we watch our state's financing deteriorate so rapidly," McClintock said.


The voting followed hours of feverish but ultimately futile lobbying by the prison guards' union, which said the package would endanger its 31,000 members by adding more beds at prisons that are plagued by violence and severely understaffed.


But analysts predicted that momentum for the other proposals, viewed as politically risky by lawmakers on both sides of the aisle, would fizzle given the breadth and expense of the package approved this week.

Legislation to carry out the shift of female offenders already has perished in an Assembly committee. Backers now say the only hope is to include the program in the governor's revised budget, to be released in May.

A proposal to create an independent commission that would have the authority to alter criminal sentencing laws is moving through the Legislature, but Schwarzenegger wants a panel that is advisory only.

As for the tens of thousands of parole violators who cycle in and out of California prisons each year, few legislators seem ready to champion changes in how they are managed. Other states have reduced their prison costs and populations — and recidivism rates — by punishing such violators at the community level. No such program exists in California.

There are a lot of good people in CA trying to bail that state out before it's too late, but, if the new beds do buy off the judges, all they're looking at there is a few years and billions more dollars before they're back in exactly the same situation, doing the same thing over and over and expecting a different result.

A History of Wisconsin Sentencing- Part XXIV

Part XXIII initiated a discussion of the Criminal Penalties Study Committee's interpretation of their legislative charge. This post continues that discussion by looking at the perceived charge most consequential for its work: protecting judicial discretion.

The Committee’s other key interpreted intention was one less prominent in public debate over the law: that the legislature intended to shift “more complete…sentencing decisionmaking to the judiciary” at sentencing- in short, to make the system determinate. Barland noted that this placed much greater responsibility upon judges, who would have virtually sole responsibility for formulating sentences- and consequently that the Committee’s charges regarding guidelines, a sentencing commission, and code reclassification were meant to aid in that shift to the judicial decision. In other words, truth-in-sentencing had placed its implementation in the hands of judges; thus, the CPSC’s recommendations regarding implementation would be in the service of helping them.

This view is important to note, as it acknowledged that the judicial perspective would be the underlying framework for the Committee’s work to follow. Policy justifications were to be framed in terms of the concerns of judges, and policy problems identified and proposed to be solved via the judges’ sentencing decision. The Code Reclassification subcommittee’s decisions were to be justified in terms of allowing the court to effectively “deal with” offenders at sentencing; guidelines were “especially” important for judges “who will be making essentially irrevocable decisions on sentence lengths;” the policy goal of population control would be accomplished through providing attractive alternatives to prison for judges to use at sentencing; and the Milwaukee Probation Problem was so precisely because judges were uncomfortable sentencing offenders to it.

Moreover, the Committee made it consistently clear by its decisions that the guiding principle for the judicial decision- in other words, the most effective way to for judges to “deal with” the offenders they sentenced- was via the maintenance of judicial discretion and individualized sentencing. The protection and expansion of discretion was a priority within the committee’s decisions on guidelines, code reclassification, and policy implementation alike. The only principle that the guidelines could not undermine, other than committee’s general “sense of proper punishment,” was discretion, or in the Committee’s terms, “the independence of the judiciary by removing from the judiciary and key decisionmaking authority.” Likewise, there was wide agreement at the session at which guideline ranges were set that “relatively broad ranges” should be set “to maintain flexibility.”

Such considerations were perhaps even more dominant within the Code Reclassification subcommittee, where essentially all of the major policy decisions were justified in terms of maximizing discretion. The decisions to repeal all minimum sentences and fines and to adjust the fine structure for drug cases were all justified in terms allowing the court “full discretion” to make the sentencing decision. In the words of the report, “guided by sound judicial discretion and assisted by sentencing guidelines…the judge should have the maximum flexibility to mete out the appropriate sentence in every case.”

The Committee’s overarching prioritization of discretion appears to be the result of several contributing factors. The most obvious reason is legislative intent: the Committee was mandated to develop advisory guidelines, which by definition could not undermine discretion. Thus, the calibration of a balance between discretion and competing considerations had already been settled in Act 283. For example, the CPSC had to reject the North Carolina’s mandatory guidelines as “incompatible with [Act 283’s] mandate that [the] guidelines be ‘advisory.’” While mandatory guidelines would have been a means to better satisfy the Committee’s goal of obtaining predictability and proportionality, their legislative mandate simply did not allow them that consideration.

Key as the advisory mandate probably was, it cannot explain the preeminence of discretion elsewhere in the document--and thus suggests that the mandate was not the only force at work in the Committee’s choice to emphasize it in the guidelines. The Committee did interpret legislative intent as mandating it to help judges make decisions, but it need not necessarily follow that the best way to do so was through maximal discretion. What other, non-legislative reasons might the Committee have had for taking that approach?

Part XXV will answer that question.

Thursday, April 26, 2007

Around the Blogs, Thursday, April 26, 2007

  • Couple of thought-provokers from Doug Berman over at Sentencing Law and Policy. One deals with the rebellion an Australian judge created when he tried to involve juries there in sentencing deliberations. Some really patronizing and undemocratic sentiments. What really came to my mind, though, was this: do we really have plea bargaining because of the backlog of cases or is it, at least in part, because of the power it gives trial practitioners to get the outcome they want without having to worry about the rabble? The other catches a very good example of what I was talking about the other day concerning mistaking the highly vocal, highly visible, and highly conservative “victims groups” and their political spokespeople for the full range of wishes and opinions of crime victims. Good to see the rest of crime victims get organized and out there.
  • Empirical Legal Studies alerts us to this SSRN article on recent work on the cognitive mechanisms behind racial bias and how conscious efforts to stop its effect in crim just, including sentencing, can't get past the unconscious. Which says a lot about what needs to happen with guidelines if you really think you can rid bias from sentencing. Of course, if you're waiting until sentencing, those horses are pretty much out of the barn.
  • Really good piece here at Prawfsblawg, with excellent points made about the range of factors judges consider, how limited guidelines are in picking them up, and the reality that “disparate” sentences that justified (and justify) guidelines may not have been that “disparate” after all. But notice the dog that doesn’t bark here—where's any consideration of what sentencing data say was the effectiveness of any sentence given in reducing recidivism, increasing public safety, demonstrating its superiority over other sentences in those regards, or what the public thinks of the legitimacy, effectiveness, or justice of the decisions given? A great case of what a closed world judges and trial practitioners live in. Also, you should note that the WI Sentencing Commission is finishing an NIJ study that we started when I was there that will detail some of the “factors considered when sentencing” for some major offenses. That might push these exercises along and it will be real cases, not hypotheticals or post facto deliberation. I selfishly think it should help make us rethink what we really think we’re doing in corr sent policy, but I may have displayed ego here before.
  • Corey Rayburn Yung at Sex Crimes Blog has one of those head-scratchers that law professors will probably be throwing at their crim law classes soon—if the defense wants an independent expert to examine video child porn to see if tech things have been done that would help the defendant’s case, can the expert be arrested for possession of child porn? Even if in the prosecutor’s office? Looks like maybe in OH they can. And if the threat alone exists, then how does the defendant, you know, defend himself? Aren’t we getting just a tad strange with this? Great catch, Corey.
  • Haven’t mentioned the great work covering TX crim just policymaking at Grits for Breakfast lately, primarily because he manages to cover so many things every day that it’s hard to pick out individual ones to highlight, much like Pam Clifton does in CO at Think Outside the Cage. I’m sure I’ve aggravated him in the past with my distaste for what TX does to the rest of this nation, and I apologize for that if not for the belief, but, really. You can’t read what he reports every day and not come away shaking your head and wondering what’s in the water and/or soil down there. And why he and his fellow travelers insist on extolling the state’s greatness. But, seriously, go and visit and give him some regular hits. It’s an education, in the negative feedback kind of way, that you need.
  • Finally, at Cognitive Daily, a great recap of the recent research demonstrating that capuchin monkeys have an innate sense of justice and are willing to forgo what "cost-benefit" would suggest just to express that sense. See any comparisons to another species here? Once again, a strict “cost-benefit” rationale for corr sent reform bites the dust. We have to emphasize that we’re not getting the public safety for our dollars with most incarceration as we would with alternatives, with the results being more crimes and victims. Even if harsh punishment feels just to the victim, which isn’t always the case and is actually why we created a crim just system to take those perceptions out of the community’s equation, if it results in more crime and victims, it’s not just for the community. Simply saying it’s irrational to spend $20,000-$30,000 a year to incarcerate someone who did $5000 worth of crime is not going to get the job done. If anything's clear by now, it's that.

News of the Day, Thursday, April 26, 2007

  • As we consider victims in the crim just process and the politics of it all, keep in mind this article on how rape victims face opposition in getting emergency contraception at public hospitals, opposition which will use “crime victims” as their major weapon to hammer in more prisons in every corr sent reform debate. People serious about crime victims don’t require them to pass an ideological test before the victims are allowed to reconstruct their lives.
  • A call for the US to renounce its “addiction to violence” here.
  • Details of the latest CA deal between the gov and legis on prisons. No sentencing commission at this point, though. I'm not sure it is wise to sever this from the proposed sent comm. WI did the same thing, as Joe Fontaine has been documenting here, doing the cost-exorbitant thing without ensuring that the possibly cost-effective thing will even happen. And, if it does happen, it will not be linked to the momentum and rationale of this policy decision structurally or cognitively, making it easier for commission opponents to argue that the eventual commission’s role isn’t as vital or as tightly linked to the crisis there as it clearly is at this moment. That, again, is what happened in WI and that commission is on the verge of disappearing. The precedent isn’t a good one who hope for effective action in CA.
  • I’m sorry but I wish I had a dollar for every “marijuana is stronger now” and “Baby Boomers don’t realize that it’s not their old pot” story that DC has cranked out in the last 2-3 decades. Here’s the latest one, featuring, surprise, that increasingly irrelevant Walters guy. Tell me again—how much stronger is this super pot than the crack, heroin, and meth that are actually killing people and could have more people and resources put on them if we didn’t keep spending money and time on finding out that this joint is stronger than Dad’s was???
  • Couple of Britain stories, one on how meth is beginning to show up there (and looks like Actifed will be disappearing soon) and one on the nation's latest crime stats (which, like us, show that some offenses seem to go up even when overall numbers go down). Thought this part was interesting: robberies are up but primarily due to people getting their cell phones ripped off on the street. But here's the good part. They aren't talking about longer sentences (much anyway) but doing things like working with the phone companies to get those stolen phones shut off as soon as possible, which might just detract from the offense as much as or more than the prospect of a couple of more years in prison, which apparently isn't deterring much as it is.
  • Teri Carns in AK (Alaska, not Arkansas) brings up this story on the high post-incarceration death rates of former inmates and links it to what they're finding in her state: Here's what apparently happens to some of our defendants after they're released from incarceration (note that this study showed that 9.9% of the inmates died over a follow-up period of 6.5 years). We lost 12 in a period of three years, out of a group of 1,934, or 6%; with the longer followup, our figures may not have been a lot different). The 12 people doesn't seem like a lot, but compared to other similar people, it may be high. Sounds like the main reaons are drug overdoses, and chronic diseases (e.g., Hepatitis C and AIDS). I thought it was interesting, partly in the context of explaining why there's such a sharp dropoff in crime commission after entering in to one's 40s - they're too sick, by that time, to get into trouble. Thanks for the note, Teri.
  • Research is finding that bringing their mothers into the therapy will help the children of domestic violence more than leaving them out.
  • And research on morphine indicates that these kinds of drugs block the brain's ability to strengthen synapses during learning and memory processes and "may provide a target for treatments of opiod addiction."
  • They're still trying to decide whether to pay for roads or judges in CO. Most of the "law and order" folks are for roads winning, btw. So much for that "certainty of punishment" thing.
  • Turns out the recent riot at the IN private prison was due in part to the AZ "visiting" inmates there not knowing the rules going in, like wearing green shirts to eat and not being able to smoke. Yet more things we learn that we never even thought of.
  • Finally, words of wisdom given to AL (Alabama, not Alaska) that really applies to the whole country. The EU ambassador visiting there said that, even with progress, the state's image internationally won't improve until they get their "excessive incarceration" and death penalty problems under control. Getting other countries to invest in your state depends greatly on whether folks from that country want to live there which depends greatly on how responsive the culture is to the likes and interests of the investing nation. Maybe business types can make folks listen where others can't.

New Jersey Reentry Digest

Access the most recent issue here. In this issue:

  • Study Finds that Few Addicted Prisoners Receive Drug Treatment
  • Polls Show Support for Pre- and Post-Release Rehabilitation Services
  • New Reentry Report from the Urban Institute
  • Forum on Prisons, Policing and Crime Prevention
  • Mentoring Children of Prisoners Grants
  • Department of Labor Workforce Development Grants
  • New Jersey Update: Department of Corrections and State Parole Board Budget Hearings, Essex County Names New Jail Warden

Wednesday, April 25, 2007

News and Blogs Together, Wednesday, April 25, 2007

  • Rural residents' use of meth has worse effects than use by urban residents? "The study showed that rural addicts began using meth at a younger age, were more likely to use the drug intravenously and were more likely to also be dependent on alcohol or cigarettes. They also exhibited more signs of psychosis than urban addicts _ 45 percent vs. 29 percent, according to the study. Grant said the findings, released in the March/April edition of The American Journal on Addictions, suggest rural addicts are at higher risk for psychiatric and medical problems such as infectious diseases and lung and liver cancer. That's troubling, she said, because addicts living in rural areas have less access to care--because of distance and transportation issues--than those living in cities."
  • Pam Clifton at Think Outside the Cage has good posts here and here on private prisons and potentials for disruptions (aka riots) that are rarely figured into expected costs when shipping inmates out of state, focusing particularly on this "disruption" by AZ inmates at an IN private prison, although the IN gov says he's just trying to get state residents a chance to get good prison guard experience. And Talk Left gives its two cents worth here as well. (You know, it may not have been the best time for this VT legislator to propose "saving money" by sending its states' inmates out of state. . . .)
  • While you're at TOC, check out Pam's good catch of this American Prospect article on the failure of our coca eradication effort in Colombia, more "success" in our War on (Some) Drugs.
  • From CrimProf Blog, this article on the difficulties we pose for wives of inmates despite the clear evidence that marriage (if it's sincere) is one of the absolute best anti-recidivism mechanism we have. A government-sponsored dating program in prisons would probably work better than anything else we have going, and think of the tv movies.
  • I can't figure this one out. Young crack users, being healthier, survive their cardiac arrests better than old ones. Is this good news or bad???
  • Here's the headline and question for this article: When Are Minimum Legal Drinking-age And Beer-tax Policies The Most Effective? And here's one part of the answer: "Our findings suggest that some of the varying results across past research may simply indicate that a given public policy may not have the same effectiveness in all places and times." And here's the other part: "The more a community regulates alcohol availability, the less additional benefit it might expect to achieve from enacting any specified alcohol-policy initiative," said Ponicki. "If a given community has very few existing alcohol-policy restrictions, any proposed new constraint would represent a sizeable proportional change in the overall cost of drinking and driving. If another community already has extremely strong alcohol restrictions, the same proposed new constraint would represent a much smaller proportional change in the full price of drinking. The proposed new constraint thus seems more significant to drinkers in the first community, and would be expected to have more impact on drinking and driving. This paper's analyses supported this expectation for MLDA and beer taxes."
  • Adam Kolber at Neuroethics & Law Blog finds this SSRN abstract of a new article on the social perception of crime that can possibly lend some assistance to efforts to figure out what punishments are legitimate and how offenses are perceived. Plus offering a means to plot those perceptions all out. Let's keep an eye on where this goes, shall we?
  • Finally, you know we're in trouble when Captain America gets busted. We'll just let the story speak for itself:

MELBOURNE, Fla. (AP) - A doctor dressed as Captain America was arrested after groping a woman at a bar and fighting with her boyfriend, authorities said.

Patrons at the bar were dressed in costumes as part of a bar crawl Saturday night, police spokeswoman Jill Frederiksen said.

A man carrying a burrito and dressed as Captain America approached her, began to say dirty things and touched her inappropriately, police said. He then brawled with her boyfriend, authorities said.

Several patrons who had dressed as the super hero were asked to step outside so the woman could identify the suspect, Frederiksen said.

She picked out Raymond Adamcik, 54, police said.

After he was arrested, he tried to flush marijuana down a toilet at a police station, police said.

Adamcik was released on a $2,500 bond and faces charges of possession of marijuana, destruction of evidence, disorderly conduct and battery.

A secretary at Adamcik's office said he was on leave and that the office was not accepting messages for him.

Well, okay, one last word. Just remember this story when people ask why we're interested in corrections sentencing.

Tuesday, April 24, 2007

May Newsletter Available And Blog Plug

The latest edition of the New Jersey Sentencing Commission's monthly newsletter can now be accessed here. Speaking of plugs, do yourself an enormous favor and check out Joel Jacobsen's fantastic blog, Judging Crimes. Joel, an appellate prosecutor (my old vocation) in New Mexico, is a genuine polemicist in the finest sense who writes with rapier-sharp wit and gut-busting humor. This dead-on observation from a recent post had me rolling:

There are few substantive differences between American law schools, U.S. News standings notwithstanding. (The idea that reading a torts casebook within the moneyed walls of Yale imparts greater wisdom than reading the same casebook in the hallowed barns of the University of Northern South Dakota at Hoople is a fantasy cherished by those engaged in hocking their future to pay Ivy League student loans, for obvious reasons – the weird thing is that it's cherished by those at UNSDH, too.)

True dat, Joel. True dat. Great stuff.

News and Blogs Together, Tuesday, April 24, 2007

  • Some thoughts on Doug Berman's thoughts about other blogs' thoughts about the impact (real, desired, and imagined) of victims on sentencing and punishments. I hope I don't oversimplify too much in shortening the views, but I think Doug's concerned about overgeneralizing the negative impact that actions to empower victims in the process will have on due process and basic Bill of Rights freedoms. The other blogs worry that the Bill of Rights made government abuse the primary fear to be avoided, and permitting too great a role to victims would twist framers' intent. I will bravely agree with each side. Our ancestors purposely created a justice system designed to take the judgment of proper punishment away from victims who frequently ran up too great costs, as we are seeing again in the actions of those who purport to speak in all victims' names now. And when you have courts like we have in OK where jurors have to walk by a victims' garden on their way to jury rooms, then fear of abuse is not unwarranted. But Doug is right, too, in that, for the law to have legitimacy and maintain even the precarious hold it has now, we need to work to restore and recompense victims for their misfortune. I think part of the problem is that each side has a different image or story of victims in their minds when they form their positions. Not all victims are the hateful demagogues we see leading political causes (and yes, they are loud and vocal, as "Three Strikes" in CA testifies more than adequately) unmindful of the impact and harm their vengeance wreaks long-term on the communities they claim to be protecting. If those are the ones we focus on, then, yes, the Bill of Rights is in danger and we support them at our own risk. But, as I've said here before, those folks are only a segment of all victims, and most victims I know and have worked with as both a crime victim myself or on victims organizations have a much more balanced and long-term view of what needs to happen to get victims and communities justice. So, yeah, there's a real danger that the one type of victim and those who manipulate and use their anger, fear, and ignorance of consequences will produce truly frightful policies for a nation supposedly protecting basic rights of all. But there's also the need Doug describes, and more effort in that regard, more proof that the system is interested in victim welfare, even if that doesn't get them all the participation in the process they want, is vitally important as well. Folks, we don't even have a good state or national victim data system to allow in-state and national studies that would be the foundation of any system serious about making good policy for victims. Let's recognize victims in their totality and take them seriously. I think we'll find the results of that even better than either Doug or the other side hopes for right now.
  • Some alcohol stories today. This one on findings that female alcoholics can develop cognitive problems faster than male ones. Surely that has implications for treatment and overcoming abuse, right? This one affirms that physical and psychological stress on recovering alcoholics early in their recovery is not a good thing for preventing relapse and its potential should be planned for in advance. Finally, this one shows that, well, alcoholics, like most people, tend to be attracted to people with similar interests, like booze. Then they partner and mate. And their genes lead to offspring who . . . okay, you get the idea. And those kids grow up in an environment of . . . right. Not sure what the treatment recommendation for this would be, but it makes sense.
  • Researchers have come up with a protein that inhibits growth of the hepatitis C virus. If you're involved with prison governance in any way, I can see the happy face from here.
  • Criminal Justice and Behavior has a new issue out, with most articles available in abstract. Lots of good stuff to check out.
  • Law enforcement and prosecutors in IA are frustrated with the intelligence and courage in the state legislature which has done nothing to redress the problems with the state's sex offender restriction laws that are whacking their ability to do their basic crim just jobs. Here's why they're aggravated: "I think people are concerned about political liability," said Senate Majority Leader Michael Gronstal of Council Bluffs. While legislators in both parties worked hard this year to come up with a measure that "focuses the administrative resources of the state on things that will actually enhance public safety," Gronstal said, "some people are primarily interested in pursuing a political advantage."Corwin Ritchie, executive director of the Iowa County Attorneys Association, said he was "astonished" that a repeal had been dubbed by some as out of the question."There were about five weeks of testimony presented by knowledgeable Iowa people who work with sex offender issues," he said of the subcommittee's work. "There was not one, not one shred of evidence presented that the residency law provides safety for children. In fact, there was a significant amount of evidence presented that the law might actually decrease child safety. Even the clear evidence that enforcement of the law is wasting valuable law enforcement resources has had no effect." And here's what they think the problem is: "They're just afraid to take action, and the people of Iowa should be ashamed," said Story County Sheriff Paul Fitzgerald. "It's absolutely politics at its worst." Surely that can't be true.
  • What the world of state and maybe fed corr sent is coming to: MD's gov's "StateStat." Which isn't that bad an idea but, if you've worked in public service, I dare you not to feel the cold chills.
  • Well, this anti-meth remedy hasn't quite made it big time yet. Requiring a doc's prescription for your Actifed. The retailers weren't impressed. It may just be a matter of time, though, if meth doesn't fade back like crack in the near future.
  • The Urban Institute's Justice Policy Center has a new report on reentry in OH that apparently breaks no new ground, tells us what we've known and ignored for years now. "One year after release, the men in the study had little stability in their lives and desperately needed community services to help them succeed," said Christy A Visher, principal researcher and the study's co-author. "Most were living in temporary housing, were not working full-time and had health problems that required medical attention." However, "[t]he study showed overall that community services are stretched to the breaking point by the demands of 650,000 prisoners released annually in the U.S. Visher said that the findings "point to important policy opportunities for change -- both in prison and in the community -- that would reduce recidivism, reduce illegal drug use, and increase public safety in Cleveland's neighborhoods. Many of these policy changes are not expensive." Among the recommendations were providing housing assistance immediately after release, coupled with employment assistance and substance-abuse treatment. The study also suggested involving families more closely in prisoners' re-entry, allowing more liberal partner visitation during incarceration and offering marriage-support services after release." Like we said, nothing new here. Just move along.

A History of Wisconsin Sentencing- Part XXIII

Part XXII introduced the membership and statutory charges of the Criminal Penalties Study Committee. This post examines the policy priorities of the CPSC, as defined by the legislature as well as by members.

Before we discuss the actions and recommendations of the other subcommittees, it is first necessary to examine the policymaking context in which those recommendations were placed- specifically, the Committee’s interpretation of legislative intent and their other overarching policy priorities.

Chairman Barland noted that “the Committee is a creature of the legislature, given specific instructions by that institution” to undertake. As noted, those instructions left many of the details up to the Committee itself, likely intentionally, and as we have already seen in the case of the Education subcommittee, the Committee was not averse to doing work outside its statutory charges when deemed necessary. Nonetheless, Chairman Barland’s Forward to the Final Report, the Report itself, and subcommittee sections within the Report all began by placing their work in the context of Act 283.

Both Barland’s and the Committee’s interpretations of Act 283’s intent concur with the justifications highlighted in the previous section. Barland, using the common buzzwords, noted that the bill “was enacted to restore credibility and coherence to criminal sentencing,” in order to combat “growing public cynicism regarding the effectiveness of our criminal courts.” Moreover, Barland’s view of the work of the CPSC accorded with what was provided by the context of its legislative development and gubernatorial instructions; he noted that “risks in [the] shift” to truth-in-sentencing included disproportionality stemming from a lack of guidance for judges, and consideration of cost projection.

Their two most important interpretations, judged by the concrete measures derived from them, involved sentence lengths and sentencing responsibility. The Code Reclassification subcommittee corroborated the statements made by Rep. Walker as to what truth-in-sentencing was not, arguing that “the clear message of Act 283 is that the legislature wants ‘absolute truth’ in the sentencing process” and that the law does not “suggest that offenders should be held in confinement for periods of time longer than under current law.” Coupled with the Committee’s preexisting instructions and concerns regarding cost and population control, efforts which would be undermined by increased sentence lengths, the Committee took explicit measures attempting to ensure that prison time served under truth in sentencing would be “no longer than under the old system.”

The primary effort towards that end, made by the Code Reclassification subcommittee, was the development of a “mandatory release converter.” The M.R. converter, as it was called in shorthand, translated the mandatory release date under the old system, two-thirds of the sentence provided by the judge, into their recommendation for the maximum sentence under truth in sentencing, so that “the maximum term of confinement for each crime in the new truth-in-sentencing system roughly parallel[ed] the maximum the person could serve in prison under the current indeterminate sentencing law.” To use the final report’s example, in a burglary case where the statutory maximum sentence is ten years, mandatory release would come after 6 and two thirds years. Hence, the Committee set a statutory maximum for burglary of as close to 6 and two thirds years as possible under its new classification system. In some cases, that nevertheless meant a slight increase in maximum time served; the closest class for burglary held a maximum sentence of 7.5 years, meaning offenders could serve slightly longer than under the old system. Nevertheless, by lowering most all statutory maximums from their indeterminate levels, the mandatory release converter would prevent wanton increases in prison time served, and thereby in prison populations and costs.

Reflecting the importance of the issue to the full Committee, it “advocated wide use of” the converter in several domains. Members of the Education subcommittee “launched a considerable educational effort…to encourage judges to impose prison times no longer than under the old system,” which included carefully outlining the principles of the converter. Likewise, the Sentencing Guidelines subcommittee seriously considered placing a conversion chart on all guidelines worksheets. Supporters of truth-in-sentencing had clearly stated that they did not want sentences to increase, and the mandatory release converter was the Committee’s attempt to ensure that would be the case.

Part XXIV discusses the importance of protecting judicial discretion to the CPSC.

Monday, April 23, 2007

News and Blogs Together, Monday, April 23, 2007

  • Read this post on the British "surveillance society" at Neuroethics and Law and see if you can sleep well tonight. If you can, you’re even scarier.
  • Rarely note one of our own posts, but the comment posted at the bottom will get you to an interesting and related corrections sentencing blog.
  • Let’s see, largest incarceration rates, lack of resources for more cost-effective public safety and other public services, largest infant death rates. Nothing to see here. Move along.
  • One of the biggest problems with probation and parole generally and one of the best reasons why technocorrections will not live up to the expectations placed on it either, this time in MD.
  • And FL finds the same mismatch of resources to demand in post-incarceration supervision as MD in its efforts to crack down on and restrict registered sex offenders.
  • Squeezing the toothpaste tube in MI, yet again. It needs to cut budgets but can't (won't) cut prisons so the courts and judges get cut. . . which should improve public safety just a whole, whole lot, right?
  • Finally, more proof that the neurochemical serotonin is strongly linked to aggression. Of course, it's fruit flies in this research, but it's the principle we need to follow, especially when it fits with all the other species in which the relationship's been found. (And keep it in mind next time you're swatting at fruit flies.)

Sunday, April 22, 2007

A Technocorrections Fable

Press Associated
April 23, 2019

(PA) John Smith, Virginia Commonwealth junior, was committed to the VA Civil Commitment Facility yesterday where he will stay until certified by Facility staff as capable of functioning safely in his community. Smith, an English major whose violent and sadistic writings caused his professors to inform state law enforcement officials in accordance with the Violent Assessment and Rehabilitation Act of 2009, denied having done anything illegal. However, under terms of the Act, passed after a second college massacre in the state in two years, reporting required MRI evaluation of the student's brain for matches against MRIs of known violent offenders. When presented validated images and sounds of violence while having an MRI performed, Smith's brain lit up in the same areas as those identified for serial homicial offenders with enough consistency to qualify for a court hearing under the Act.

Prosecutors in the state's Preemptive Offense Unit argued that the results justified Smith's commitment for assessment for an undefined period and that failure to do so might lead to multiple gun violence crimes similar to those which shocked the nation in 2007 and 2009. Defense countered that comparing Smith's MRIs only to those known for violent offenses and not others was insufficient to show future crime potential and that his writings were no more violent than those found in holy writings, Shakespeare, or movies of California Senator Arnold Schwarzenegger. The judge noted that state policymakers had explicitly decided to err on the side of caution when passing the Act and allowed commitment if the defendant's MRI matched on a specified number of points with at least one dozen offenders. Smith was remanded to state care immediately upon judgment. His release will depend on future findings of Facility researchers and decisions of elected officials.

More NCJRS Abstracts, April 22, 2007


NCJ 217693
Serge Brochu ; Louis-Georges Cournoyer ; Joel Tremblay ; Jacques Bergeron ; Natacha Brunelle ; Michel Landry
Understanding Treatment Impact on Drug-Addicted Offenders
Substance Use and Misuse Volume:41 Issue:14 Dated:2006 Pages:1937 to 1949

This study examined variables that could predict perseverance and impact of treatment for drug-addicted offenders in Quebec . Study results indicate that individuals awaiting charges, trial, or sentencing, who perceive pressure but have not yet entered the penal system, persevere in treatment. Therefore, it is seen as reasonable to believe that the threat inherent in the judicial process does have the impact desired by courts, but has only been observed on the pre-sentencing level. The study also indicates that while pressure has a beneficial impact in that it reduces dropout risk in the short term, at least with individuals subject to pre-sentencing pressure, such perseverance is not necessarily tied to positive treatment impact. Most drug-addicted offenders require services and treatment not provided by the criminal justice system. Numerous studies have shown that offenders successfully exposed to treatment for sufficiently long periods of time obtain beneficial results. This Canadian study examined variables that could predict treatment perseverance and impact for 124 offenders admitted to 1 of 5 rehabilitation centers for alcoholic/drug addicts representing different regions of the province of Quebec . Tables, references

NCJ 217695
Carl A. Latkin ; Melissa A. Davey ; Wei Hua
Needle Exchange Program Utilization and Entry Into Drug User Treatment: Is There a Long-Term Connection in Baltimore , Maryland ?
Substance Use and Misuse Volume:41 Issue:14 Dated:2006 Pages:1991 to 2001

This study explored the relationship between Needle Exchange Program (NEP) utilization and treatment entry in Baltimore , MD. Results of the study indicate that drug injectors who enter treatment differ from injectors who do not enter treatment. Specifically, injectors who enrolled in a treatment program were more likely to be female, HIV positive, employed, have a history of mental illness, and report using the Baltimore City Needle Exchange Program (NEP). Evidence shows that NEPs may play an important role in linking drug users to treatment. It was found that within more than a year after baseline assessment, injectors who utilized the NEPs were more likely to enter treatment. The results revealed a significant relationship between entering treatment and being HIV positive. HIV and drug abuse are major public health problems in urban communities throughout the Unites States , as well as other countries. Two effective strategies to reduce these problems are needle exchange programs and drug user treatment. Utilizing participants recruited through street outreach in areas with high drug activity, this study examined factors associated with treatment entry at follow-up assessment. The interest was in assessing the role of NEPs in treatment entry among injectors living in Baltimore , MD. It was hypothesized that injection drug users who attended the NEP would have more familiarity and comfort with social services and hence be more likely to enter treatment during the follow-up assessment. Tables, references

Saturday, April 21, 2007

Around the Blogs, Saturday, April 21, 2007

  • Been gone a couple of days and missed some good stuff. Doug Berman at Sentencing Law and Policy found a very interesting article on analyzing the factors associated with the growth of our prison populations which nails some of the problems with the current research. He also finds another conservative repudiation of the "one size fits all" prison approach that we've been using for decades now and catches this press release from NY's gov that seems to put the state on the path toward sentencing guidelines that it dumped on years back. Here's the good part of the release from my perspective: "Reports of the Commission shall include, but not be limited to, an evaluation of the impact that existing sentences have had on length of incarceration, the impact of early release, the impact of existing sentences on the length of community supervision, recommended options for the use of alternatives to incarceration, and an analysis of the fiscal impact of the Commission's recommendations." This is where commissions need to be going and even states without commissions, those considering sentencing info systems, or just contracting with researchers to get these studies done. We have been sentencing since the beginning of this country's history and we still can't tell you beyond anecdotes and feelings what the best sentence for a given type of offender with a given offense is most likely going to be. NY seems to be following in the path that CO (and maybe VT from talks I've had with folks there) has chosen in seeking these answers. We need to link sentences and offenders to recidivism and subsequent offenses and start looking for patterns. My personal opinion is that there will still be sufficient latitude and ambiguity to allow discretion a major role. But the fact that in 2007 we can even have a proposal to look at "impact that existing sentences have had on length of incarceration" that is not pro forma and common tells far more about sentencing policy, commissions, and guidelines than those of us in corr sent really should be wanting to say.
  • Speaking of VT, Real Cost of Prisons has a good update on how the state is mobilizing to deal with its growing prison space problem. We sometimes forget that the low incarceration states still face the same questions everyone else does about the tradeoff of needed resources versus the level of public safety actually bought by more prisons compared to other options. It's odd that the state's new sentencing commission wasn't mentioned here, though.
  • Empirical Legal Studies recommends and gives info on Survey Monkey for those of you considering web-based surveys. I've used it in offices in the past and had good luck. Be interested in stories that you may have good or bad, and ELS probably would be, too.
  • And Grits for Breakfast has a usual insightful post on something churches could do to live up to the Christian admonition to care for both prisoners and children: reach out to the kids of incarcerated parents and offer church camps for them. Yes, yes, indoctrination, proselytization, I know, I know. But folks, the alternative looks so much better???

Governing Through Crime

You know how sometimes you see the whole movie just from the trailers for it? Well, that sorta happens with books and titles, too. Like Jonathan Simon’s Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear.

Its text is a little more detailed, of course, and the theme is one we’ve touched on here. Schools, workplaces, even families become adjuncts of our criminal justice system. Drug-testing, random searches based on arguable assumptions, background checks, bannings and exiles, gated communities with their own bindings. Laws and regulations kicking people out of public housing for acts of relatives, parents in jail for truant teen children, newspapers outing companies and public agencies giving former inmates any reasonable chance at reentry. I wish I had even just a penny for every time the old “those who trade freedom for security” quote over the last 2-3 decades. And we blythely merry along finding more and more ways to criminalize our environment when we should be enriching the social norm-setting and individual self-governance that actually stop crime and produce the safety we’re trading our liberty for.

Simon’s point, clear in his title, is that we’ve become “a culture of fear” incapable of imagining our own strength and ability to control a world portrayed falsely but profitably as out of our control. He traces the development to the breakdown of the New Deal consensus a few decades back that turned into a generalized disbelief that our public institutions could remediate social problems and empower people to master their lives and community safety. There to replace the “consensus” was the growing War on Crime paradigm with its skeptical view of people and their organizations and its promise of control through “toughness” and punishment. When schools, workplaces, families, other institutions seemed to lose their way, well, there was still the hope of slapping cuffs on the problems or putting them behind bars.

That success in our War on Crime was so erratic and debatable wasn’t as clear then as now (and it’s still not clear to a lot of folks even now), and the assurances of opportunistic politicians gave voters and citizens reason to give the guarantees of their taken-for-granted freedoms away bit by bit. Simon says (come on, you knew I’d say that at some point), “Governing through crime is making America less democratic and more racially polarized; it is exhausting our social capital and repressing our capacity for innovation. For all that, governing through crime does not, and I believe, cannot make us more secure; indeed it fuels a culture of fear and control that inevitably lowers the threshold of fear even as it places greater and greater burdens on ordinary Americans.”

While this may sound at first touchy-feely, Simon sees governance values of both liberals and conservatives at risk. “The Left will find most disturbing the hardening of inequality formed by governing through crime, whether in its racially concentrated prisons or gated communities. The Right will find that across a whole range of dimensions, governing through crime subverts the Right’s mandate of responsible independence at the level of the firm and family.”

Simon holds the Omnibus Crime Control and Safe Streets Act of 1968 responsible for the turning of crim just policy into the paradigm he sees as so dangerous. I once planned my dissertation on the Law Enforcement Assistance Administration and its impact and learned more about clear goalless and unthought policymaking than I really ever wanted to know. The “control” orientation epitomized by this Act led to other wonders, like sentencing commissions and removal of judicial discretion.

That, of course, led straight into the debates and policies we’ve had in corrections sentencing for the last decades. And as we sought control over the discretion of practitioners letting crime frolick like “Girls Gone Wild,” we had to protect ourselves closer to home—in our schools, at our jobs, with our families, literally in our secured condos and gated communities. For gravy, he minutely details examples in all the arenas.

How does Simon propose to stop the damage to our civil society he describes? He prefers the now generally forgotten War on Cancer, another limitless fear, that came at the same time as Nixon’s War on Crime. This is frankly the weakest part of Simon’s presentation, but he seems to embrace a health model focused on prevention and knowledge-based networked action. He seems to recognize the problem of his “solution,” especially in a time in which fear is magnified by terrorism. He concludes, “These conditions will mean little in the absence of social movements and political leaders ready to break the hold of crime on American governance and animated by the conviction that the American people are being exposed to risks that are largely ignored by institutions laboring under a burdensome set of formal and informal mandates to manage crime and its risks.”

So you don’t leave this book filled with enthusiasm and optimism, despite his hope it will lead to more discussions of how to redress our fear-based society. He’s certainly right that the best crime control policy is the nurturing and strengthening of a confident, self-assured society that recognizeds that crime and fear can’t be eliminated but can be contained and controlled by productive, self-governing individuals and communities. He documents it all well, although you may find yourself wondering how collective bargaining fits into the thesis (it is a stretch). This book is a needed review and summary of what’s been going on for the last 3-4 decades, a document to save future historians time. It’s not uplifting, but it is thorough and thought-provoking. And sad. And worth your time. When you’re done, I bet you won’t look at our country and its principles, its past and its future, the same again.

Friday, April 20, 2007

A History of Wisconsin Sentencing- Part XXII

Part XXI ended a series of posts on the enactment of truth-in-sentencing in Wisconsin. This post begins a series on the Criminal Penalties Study Commission, the group charged with developing a new set of state sentencing guidelines to take effect under the new law, within the 18 months before it would take effect.

The CPSC has been described as a “blue-ribbon” commission, with good reason; its membership included numerous longtime leaders in Wisconsin sentencing. Walter Dickey and several members of the first Sentencing Commission served as members, and the Committee was chaired by Judge Thomas Barland, who had led the deliberations on sentencing standards as part of the WCCJ’s Standards and Goals project two decades before. Barland’s selection as chairman partially stemmed from the failures of the previous Task Force on Sentencing and Corrections; Barland, a former legislator, was told by Governor Thompson that his selection as chair came because he “understood the legislative political process.” Although Barland may have been selected with politics in mind, however, in overall membership the CPSC was more an “expert” committee of criminal justice policymakers than a political one. While the committee had only one legislator, Senator Joanne Huelsman, it included (with overlap) six judges, two former chairs of the Department of Corrections and several other leaders from within the legal community.

Act 283 gave the CPSC six charges, which the Committee chose to divide between three standing subcommittees: Code Reclassification, Sentencing Guidelines, and Extended Supervision Revocation. Members created two additional subcommittees, Education and Computer Modeling, “to address challenges which arose during the Committee’s work.” As with truth-in-sentencing, our primary focus here is on the intentions members had in developing the current Commission and guidelines system, and much of this section will again be devoted to exploring that issue. The work of the Sentencing Guidelines subcommittee is obviously most pertinent to that issue, and we shall see that the work of the Code Reclassification and Computer Modeling subcommittees will also be helpful. As the Extended Supervision Revocation and Education subcommittees are not directly relevant to our greater considerations, I will give a brief synopsis of each before we begin.

Although it was charged specifically with examining revocation procedures for the newly developed Extended Supervision (ES) program, the Extended Supervision Revocation subcommittee found it necessary to develop more general recommendations for the program before doing so. Those recommendations followed the lead of the committee’s predecessors in community corrections; its description of “what…ES should look like” was based on the strict supervision model proposed by the Intensive Sanctions review panel, and both shared many basic features with the recommendations of the Task Force on Sentencing and Corrections. Like the two previous proposals, levels of supervision within ES would vary based on the level of risk offenders posed, work, educational and/or community service participation would be required, and agent caseloads were to be reduced. The subcommittee also recommended amending Act 283 to give judges the power to modify the conditions of an offender’s ES, since “the judge may not be aware of all possible supervision options available at the end of a long period of confinement.” Relatedly, a “geriatric clause” was recommended which would allow elderly offenders to petition for a modification of the terms of their sentence, to free the corrections system from suffering the increased medical costs they would incur.

Pursuant to its expressly delegated work on revocation, the committee “focused on streamlining and strengthening the process to provide better community protection.” To wit, the subcommittee recommended an expedited revocation process, the construction of “regional detention facilities” for violators, and the added option of giving offenders “confinement sanctions” in those detention facilities for violations.

As the subcommittee concerned with community corrections issues, the Extended Supervision Revocation subcommittee was also the locus for concerns from Milwaukee-area officials that judges in Milwaukee County lacked faith in the efficacy of probation supervision. The effects of the “Milwaukee Probation Problem” were borne out by statistics the Committee received from the Office of State Courts, which found that Milwaukee judges placed a significantly lower proportion of felony offenders on probation than judges in the rest of the state, presumably due to their negative view of the program. Strapped for time, neither the subcommittee nor the greater Committee was able to confront the issue. Instead, they designated it as an “issue for further study,” and made only one specific recommendation of their own, suggesting that the “positive results” of strict supervision programs in Dane and Racine Counties be applied in Milwaukee.

The Education Subcommittee stemmed from the recognition of Committee members that “educating the bench, the bar, and the public” about the “new principles and terminology” of the system “will be an important part of making truth-in-sentencing work,” especially coupled with “the short time period” between the release of the CPSC’s report and the beginning of the new system. Hence, the Education committee members were charged with developing an education plan and “acting as liaisons” with relevant actors and the public. (Notably, a focus of their presentations to judges in particular was a “considerable effort” urging them to refrain from handing down increased sentences after truth-in-sentencing took effect.) The Final Report listed the Committee’s accomplished and planned educational efforts, and also made the further recommendation that its own “office and staff remain in operation and fully funded until the new Sentencing Commission begins its work,” primarily in order to provide continued education.

Part XXIII will describe the committee’s perception of their legislative charges and their general policy priorities.

The Trend Toward Reconsideration of Mandatory Sentencing

While preparing my Commission's monthly newsletter, I happened across several recent news stories that collectively suggest the emergence of an apparent national trend toward a serious reconsideration of mandatory sentencing for drug crimes. Consider the following:

  • Massachusetts: According this story in the Boston Herald published on April 15, 2007, Gov. Deval Patrick has launched a comprehensive review of the state’s mandatory sentencing laws as officials say giving judges the discretion to impose minimum sentences may help them offer incentives to convicts to participate in rehabilitation programs, according to a report published Sunday. Administration officials say the mandatory minimum sentences drive up the cost of corrections and deny judges the discretion to order the release of prisoners on good behavior, the Boston Sunday Globe reported.

  • Minnesota: This April 7th story discusses a report issued by Minnesota's highly-regarded sentencing commission asserting that the state's drug laws might be too harsh and the state should consider reducing prison terms for users and small-time dealers. The provocative stance from the Minnesota Sentencing Guidelines Commission would have been improbable a decade ago, when politicians and prosecutors often spoke about zero tolerance and a "war on drugs." According to the article, "the idea of reforming drug laws, including the possibility of reducing recommended sentences for certain offenses, has been gaining traction among lawmakers, judges and prosecutors. The sentencing commission put forward a proposal that would cut recommended sentences on some drug offenses nearly in half. First-degree offenders convicted for the first time could see recommended sentences reduced from seven years to four years. A bill that passed the state Senate last month includes a provision ordering a drug-sentencing study. The review would be done next year and could include new sentencing guidelines that would automatically take effect unless lawmakers act to block them.

  • New York: Yesterday, my old hometown newspaper, the Albany (N.Y.) Times-Union, reported in this story that the Assembly voted Wednesday to further change New York's strict Rockefeller Drug Laws. The legislation would increase judicial discretion to order treatment and probation instead of prison for some first- and second-time drug offenders. Others convicted of certain felonies could request resentencing. Excluded are those convicted of violent crimes or sales to children."The opposition will say we are soft on crime," said Jeffrion Aubrey, D-Queens, who hairs the Assembly Committee on Correction. "But we understand the revolving door of criminal justice and we want to shut that door." The Senate supported substantial changes in the past, said Mark Hanson, a spokesman for Senate Majority Leader Joseph L. Bruno, "and we will take a look at the Assembly bill."

  • Maryland: This February story in the Baltimore Sun published on February 27, 2007, discusses how the Maryland legislature is considering a bill that would repeal some of the state's mandatory-minimum sentencing laws regarding drug offenses. Maryland elected officials have acknowledged that drug use is a public health problem, and, as a result, the state has offered more treatment options to low-level offenders. The proposed legislation seeks to allow judges discretion in sentencing repeat offenders who commit certain drug crimes. Repealing the minimum-sentencing laws would allow judges to require treatment, particularly in the case of a low-level dealer who sells drugs to support an addiction, said Del. Curtis S. Anderson, a Baltimore Democrat.

If any reader if aware of similar initiatives elsewhere, I'd be only too happy to supplement the above list in future posts. Have a great weekend!

Thursday, April 19, 2007

A History of Wisconsin Sentencing- Part XXI

The past several posts have described the controversial and lengthy legislative history of truth-in-sentencing in Wisconsin, culminating in the passage of 1997 Wisconsin Act 283 in June 1998. This post draws on the findings of that history to tentatively outline the legislative intent by which history suggests Act 283 should be interpreted.

Bringing together our discussions of the terms of debate over truth-in-sentencing and the legislative history of its actual proposals, there seems a few conclusions which may be fairly drawn about the legislative intentions behind Act 283.

Firstly, based on the statements of its proponents, truth-in-sentencing in Wisconsin was oriented primarily towards remedying the public’s relationship with the system, by adjusting the “implicit ideology” perceived to be broadcast by the early and unpredictable release procedures of the indeterminate system. The fundamental policy change in Act 283, its 100% time-served requirement, was justified first and foremost on the “credibility” and “confidence” it would restore to the system from a specifically public viewpoint. Truth-in-sentencing was not, thus, directed primarily towards reducing crime, dealing with prison populations or costs, or “rationalizing” the prison system. Although those may have been considerations, they were not the direct effects truth-in-sentencing was designed to have, nor were they primary public justifications for passage of the bill.

Stated in those terms, the crux of the debate over the policy was based on the extent to which such secondary policy considerations were to intrude- or, in other words, the extent to which practical considerations of implementation, regarding costs, populations, rationalizing the system and otherwise, were necessary additions to the proposal. The addition of what was to eventually be called the Criminal Penalties Study Committee included in Doyle and Thompson’s compromise and SB 345, and enshrined in Senate Substitute Amendment 1 to Act 283, was the concrete result. However, the CPSC was less a full resolution of those issues than a means to kick the can down the road. CPSC Reporter Thomas Hammer would later note that based on the final decisions in Act 283, “the legislature did not envision [truth-in-sentencing] going into effect without considerable supplementation.” But by assigning that task to the CPSC, and giving it only general charges for designing guidelines, a commission, and parole revocation procedures, the legislature sidestepped the need to reach explicit agreements on what the details of that supplementation might be- much as their predecessors had done in passing 1983 Act 371.

As such, we may deduce the decisions of the CPSC are considerably more important in determining the goals and intentions behind the guidelines and Commission that would result; their role specifically was to develop the practical details we are primarily concerned with in this paper. Hence the most important things that the history of Act 283 can tell us regard the intentions for the activity of the CPSC. Once again, there are a few conclusions that may be fairly drawn.

Although we cannot be truly certain without knowledge of the text of Doyle and Thompson’s compromise, or of who introduced the Senate amendment creating the CPSC, it does not appear that Attorney General Doyle’s original concerns over anticipation of space or cost was intended in Act 283 to be a primary concern of the CPSC. Even though cost was a stated concern on the part of the legislators who also supported a committee, the CPSC itself would later note that it received no “express statutory charges” to consider those factors, while it did receive express charges relating to the criminal code revisions and parole revocation procedures that were also part of Doyle’s original vision for the Committee. It has been acknowledged that the legislature did have some concern for the issue; in his foreword to the CPSC final report, Judge Barland noted that they “recognized…[that under truth-in-sentencing] it could be difficult to predict future prison and community corrections needs.” But the lack of a statutory charge relating to the issue, coupled with the fact that the legislators on record as supporting an implementation committee made no recorded mention of cost or population containment as part of the committee’s role, appears to indicate that it was not seen by the legislature as being among the leading priorities of the Committee.

We can be more certain that Governor Thompson did see cost as a priority for the Committee. Upon appointing Judge Thomas Barland as chairman of the Committee, Thompson conveyed his concerns to Barland “about the rising cost of operating the prisons” and requested that the Committee “address those problems as best [they] could.” Indeed, mirroring concerns expressed by Democratic critics, Thompson’s Secretary of the Department of Administration told Barland that both he and the Governor especially did not wish to see increased corrections spending take funding from higher education. Legislators may not have explicitly placed cost on the Committee’s agenda, but Thompson’s instructions indicate that it was still intended to be a vital consideration by at least one key policymaker.

Returning to Act 283, it seems safer to conclude that the leading priorities of the Commission were intended to be the criminal code revision and guidelines-related duties for which it did receive express statutory charges. In turn, this suggests that the primary implementation challenges the legislature felt necessary to confront instead regarded coherency of the criminal code and the need for guidance of judicial sentencing decisions under truth-in-sentencing.

One more hint as to the legislature’s possible priorities comes from the mandate that the temporary guidelines be “advisory.” As a design detail which apparently was specifically added in the middle of the legislative process, it appears to have been based in deliberate intent; and considering that the definitional feature of an advisory system is its deference to judicial discretion, it seems a reasonable deduction that the provision was an indication of intent that discretion be maintained within the sentencing system the CPSC designed.

To reiterate, these do not purport to be definitive conclusions. The sourcing available is far from explicit on any of these matters. However, each of these may be reasonably extrapolated from the statements, writings and actions of those who developed Act 283. Accordingly, I believe it is fair to characterize these conclusions as the most plausible accountings of the legislature’s intent that can be developed from the resources at hand.

Part XXII will begin a series of posts on the work of the Criminal Penalties Study Committee, focusing on its development of new sentencing guidelines for the state.

The Link Between Cigarette Smoking and Alcohol Abuse

Mike asked me to pass on news of a just-released study by the Yale of School of Medicine published in the Archives of Internal Medicine which draws a clear link between smoking and alcohol abuse.

As reported in this Science Daily story:

"This means cigarette smoking status can be used as a clinical indicator for alcohol misuse, which presents an opportunity for intervention," said the principal investigator, Sherry McKee, assistant professor of psychiatry.

She said that although brief screening and brief intervention provided in primary care settings are effective, clinicians do not frequently screen for alcohol misuse. This is a matter of concern because 26 percent of the U.S. population is drinking at hazardous levels, which puts them at increased risk for alcohol-related consequences such as injuries from motor vehicle crashes, hypertension, depression, and certain cancers.

"Only an estimated 30 percent of individuals who had a primary care visit reported being screened for an alcohol or drug use problem," McKee said. "Physicians are much more likely to ask patients whether and how often they smoke."

She and her collaborators arrived at their conclusions after analyzing data obtained from 42,374 adults in a national epidemiological survey on alcohol misuse and other related conditions. Following guidelines that physicians use to assess tobacco and alcohol use, they found that non-daily smokers are five times more likely to have a problem with alcohol compared to people who have never smoked. Daily smokers are three times more likely to have an alcohol problem.

"This is the first study to document that individuals who are smokers, but don't smoke every day, have the highest rates of problem drinking," McKee said. "Using smoking status as a 'red flag' for more aggressive assessment of alcohol use is a highly feasible and clinically sensible approach to screening."

The findings, she said, highlight the importance of physicians adopting standard alcohol screening questions into their practice.

Wednesday, April 18, 2007

News and Blogs Together, Wednesday, April 18, 2007

  • Corey Rayburn Yung at Sex Crimes Blog has been running an interesting series of posts on cases under the Adam Walsh Act. Much to learn there.
  • Pam Clifton at Think Outside the Cage catches this note on CO's gov getting most of his "recidivism reduction" appropriations request, good news all the way around, and this NY Times story on "frequent fliers," NY drug users who get rehabbed behind bars and then sent back out with no support where they, surprise, recidivate. Maybe Pam can the CO gov to send a note to NY's.
  • Real Cost of Prisons finds that CA policymakers have gotten serious enough about alternatives to prison to reject a proposal to add 4500 new beds at female facilities. Every long journey, you know. And NV's making it clear that it will at least plot the ground before it embarks on the journey that CA's been on. One NV rep frames it precisely: "It's going to cost money to do what you want to do," said Sen. Bob Coffin, D-Las Vegas. "I guess all of us members are going to have to consider that. Do we want to protect our neighborhoods, or protect our wallets?"
  • Another "N" state (again, why are so many states "M"s or "N"s? seriously, there's money in this for a good answer), NY has been forced by a fed court to give more treatment to mentally ill inmates and to stop some really loathsome punishments.
  • I can't help feeling there's a good alternative to the pros and cons on felony expungement that Prevention Works considers in this post. Is there some way we could keep the record but certify the atonement? PW has some really good minds. I'll sic them on it.
  • Psychology and Crime blog has some good links to sex crime research, including sexual assault of males, consequences of sex registry on college students, and sexual assault during and after separation/divorce.
  • Finally, a couple of drug stories that hit themes we harp and harp on here. This one details the research showing that marijuana can cut lung cancer tumor growth in half. And this one has AZ picking up the ad campaigns to get teens away from meth that have been pioneered in MT and adopted in ID. Actually, here's the part we keep harping on: "Melissa says her path may have been different if she had known about the effects of meth six years ago. "I went through D.A.R.E. (Drug Abuse Resistance Education program). I knew drugs were bad for you, but I didn't think it would be me," she said. "The ads are so blunt, and they're just out there and really hard to ignore." It's nice to have that young lady cleaning up her meth act, but, as a poster child for how DARE doesn't work in its main goals, don't you think you'd be one of the first to say, "shouldn't we wait and get some evidence before we start assuming success?"? We do such a poor job requiring evidence for our beliefs. No wonder our policymakers don't feel much pressure to do so, either.