Recently in Prisons Category

The Supreme Court of North Carolina today rejected a claim brought by dozens of North Carolina lifers that their life sentences must be reduced by good time credits.  See News 14 Carolina's story here.

The claims were filed by NC inmates who were sentenced to life terms between April 1974 and June 1978.  At that time, the relevant state statute defined a "sentence of life imprisonment" to mean a term of 80 years.  With earned good time and merit credits, the inmates claimed that they had completed their sentences and were entitled to immediate release.  The Department of Corrections countered that under their policy, credits earned by lifers was not for the purpose of reducing the inmate's sentence, but rather to calculate a release date in the event the sentence is commuted.  Alfred Jones - a convicted murderer originally sentenced to death and one of the complaining inmates - successfully challenged this policy in the state trial court.  After calculating his credits, the court ordered his immediate release.

We hear more and more that brutally tight state budgets require cutbacks in imprisonment.  Sentences for the much-heralded and apparently ubiquitous "low-level, first-time" offender should not include a jail term, and some  --  or many  --  of those already in prison should be released early.  The money just isn't there.

Those of us not born yesterday recognize this argument as a make-weight for the pre-existing position that sentences have been too harsh for years (roughly the years coinciding with a dramatic drop in the crime rate, although that last part is kept quiet).  The frugality argument is simply one that opponents of serious sentencing figure can gain some traction where their other arguments have deservedly failed. 

But as ever, the first thing you need to do with the argument is check its factual premises.  It sounds plausible because the economy in fact remains weak, as everyone but the President seems to know.  The problem is that not every plausible proposition is a true proposition.

Hence I want to call to your attention this news clip from California, one of the states where the release-early-to-save-money pitch is at its peak.  The story concerns the recent opening of a taxpayer funded half-billion dollar high school.

That's not a misprint.  It's half a BILLION.   Actually, several million more than that.  For a high school.

This high school doesn't sound a bit like the one I went to.  It does, however, sound a lot like the Acapulco Four Seasons. 

Moral of story:  It's not about money.  It's about getting serious.

How many times have we been told that "prison will keep us as safe as the death penalty"?  The people who say this are well aware of (indeed they're obsessed with) the fact that the judicial system is fallible  --  but apparently oblivious to the fact that the penal system is also fallible.

Hence today's story of the capture and arrest of an escaped killer, from which I excerpt the following tidbits about prison security:

 

The prison has a badly defective alarm system, a perimeter post was unstaffed, an outside dormitory door had been propped open with a rock and the alarms went off so often that prison personnel often just ignored them, the report said. Also, operational practices often led to a gap of 15 minutes or longer during shift changes along the perimeter fence, Ryan said.

Prison staff told a review team that the dormitory door was left open because of the heavy amount of foot traffic. That open door allowed the three inmates to reach a 10-foot chain-linked fence that hadn't been topped with razor wire. They scaled that fence and hid out for a time behind a building in an area that isn't visible to staff from the yard.

 

While on the lam, the convict and an accomplice apparently killed two other people, Gary and Linda Haas of Tecumseh, Okla.

How easy it is for academics and defense lawyers to talk about the supposed safety of incarcerating killers when they full well know that it will be other people who wind up paying the price for their deceit.

 

The California Supreme Court yesterday clarified a looming question regarding the appropriate next step for when an inmate is denied parole, appeals the denial, and wins.  In the case In re Prather, the court held that the appropriate remedy is a new hearing by the Board of Parole Hearings (the Board) - not, as some appellate courts have held, an order that the Board release the inmate absent new evidence of the inmate's dangerousness emerging after the parole-suitability hearing.

This just leaves me speechless.  Here are the first few paragraphs:

 

President Obama has not fulfilled his pledge to close the detainee prison at Guantanamo Bay, but he has brought Skype, Playstation3 and "life skills" classes to the detainees at the island facility.

While the 181 men being held in the prison wait to learn their fates after the administration fell through on its January 2010 deadline to move them out,  90 percent now live in a communal environment that includes Skype, the online video chat service, and access to a 17,000-book library. 

That's up from 40 percent of detainees a year ago. 

The "Twilight" series, a hit among so-called "tweens," is also popular with detainees, the camp's "librarian" said.

 

They try to kill us; we give them hit movies.  Can 3D be far behind?

Hat tip to Scott Johnson at Powerline for calling attention to this delicious piece by Jay Nordlinger:

 

Michael Mukasey was attorney general from November 2007 to January 2009. He remembers visiting Guantanamo Bay in February 2008. He looked at many of the high-value detainees on video monitors. But he did not see Khalid Sheikh Mohammed; Mohammed wasn't in his cell. He was off having a Red Cross visit.

 

Mukasey did see the exercise room, adjacent to Mohammed's cell. And he noticed something interesting: Mohammed had the same elliptical machine that he, the attorney general, had back home in his Washington apartment building. Only there was this difference: Mukasey had to share his, with other residents; there was a mad scramble in the morning to get to it. Mohammed had his machine all to himself.

 

Bear in mind that he was the "mastermind" of the 9/11 attacks, which killed almost 3,000 people. That he was the beheader of Daniel Pearl. And so on. I wonder how much more tenderly America's critics expect us to treat such people. "Abdominal massages," of the type Al Gore apparently requests?

 

John Hinderaker adds: KSM is contemptuous of us because he thinks we are a bunch of idiots. I'm beginning to believe he's right.

There are actually two appeals to the Supreme Court challenging the prisoner release order in California. The Prison Litigation Reform Act gives various people, including state legislators, standing to challenge such orders. The reason for this is to deal with possible collusion between prisoner advocates and the executive branch of government, which may want to put the squeeze on the legislative branch to pony up more funds (i.e., tax dollars) for prisons. In the California  case, a number of Republican legislators exercised their right to intervene.

In the governor's appeal, Schwarzenegger v. Plata, No. 09-1233, noted yesterday, the Court deferred consideration of a jurisdictional issue. The orders list did not mention California State Republican Legislator Intervenors v. Plata, No. 09-1232. Today, the online docket shows no order issued in that case, even though it was on the same conference. Not sure what's happening here.

On the Supreme Court's orders list for today is this order in Schwarzenegger v. Plata, No. 09-1233:

Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits.

Lyle Denniston at SCOTUSblog interprets this order as meaning that "the first issue up for review is whether a three-judge U.S. District Court had the authority even to issue an inmate release order."

I do not agree. [Update: Lyle has revised his post.] I think the jurisdictional question that the Court deferred is whether the Supreme Court has jurisdiction to review the order of a single-judge district court calling for the three-judge court to be convened. The Governator tried to appeal that order to the Ninth Circuit when it was issued, and the prisoners moved to dismiss on the ground the Ninth did not have jurisdiction.  The Ninth's docket in case 07-16361 says (emphasis added):

Order filed: The motions to exceed the page limit for aples' opposition and aplts' reply are granted. Aples' opposed motion to dismiss these appeals for lack of jurisdiction is granted....CITE. The district court orders from which aplts seek to appeal can be effectively reviewed following the entry of a final order by the three−judge district court. All other pending motions are denied as moot. DISMISSED.

The appeal referred to in the italicized language is the appeal now before the Supreme Court. In other words, the Ninth Circuit ruled that the Supreme Court would have jurisdiction on the motion of the very people now denying the Court has jurisdiction.

Counsel for appellees win the chutzpah award of the week.

In the Sentencing Reform Act of 1984, Congress decided to cap the sentence reduction credits for behaving in prison at about 15%. The formula they chose was 54 days per year, which actually works out to 14.8%. But is that 14.8% off the total sentence or credit for 14.8% of the time actually served? That was the question before the Supreme Court in today's decision of Barber v. Thomas. The difference works out to about 10 weeks for a 10-year sentence.

Justice Sotomayor joined the Court's 6-3 majority today in Barber v. Thomas, upholding the Bureau of Prisons' method of computing good time credits.  The Bureau uses the actual time the defendant has been in jail; the defendant had wanted the computation based on the inevitably longer period to which he was sentenced.

The case is not a blockbuster, although it is marginally significant for the roughly 200,000 federal inmates.  The principal significance for the rest of us is that Justice Sotomayor voted for the government in a case where an "empathy"-driven judge (see, e.g., Justice Kennedy and his sentiment-laden writings in Graham, Roper and Kennedy v. Lousiana) could easily have gone the other way.

Unsurprisingly, Sotomayor voted as Justice Souter surely would have in Graham.  But today's case is different.  It is difficult to believe that Souter  --  ever looking to eke out a way to boost criminal defendants  --  would have voted with today's majority.  This is the frist criminal case in which I am certain that Sotomayor cast a more "consevative" vote than Souter would have.

Ladies and gentemen, there may yet be hope.

Death penalty opponents like to write and cite reports claiming that the death penalty is vastly more expensive than life-without-parole. These reports tend to ignore or downplay the high medical cost of prisoners near the end of their natural lives.

Marisa Lagos reports for the SF Chron, "As California struggles to pay for social services for its poorest residents, it spends hundreds of millions of dollars a year on health care for a small group of sick inmates - in one case $1 million during a dying inmate's final year, according to a state audit released Tuesday."

Sen. Mark Leno (D-Frisco) is pushing "medical parole" as a way to take this cost out of the corrections budget. That doesn't eliminate the cost to government generally, of course. It just moves it to Medicaid* or to Social Security.

For ~700 inmates in the Big Q, a different kind of early release program could eliminate these old-age costs altogether, if properly implemented.

* Called Medi-Cal here, because we have to be different.

Reader federalist sent me this story, which has now made its way to Sentencing Law and Policy.  Here are the first two paragraphs, and I swear I'm not making this up:

By the time the trumpets sound, the candles have been lit and the salmon platters garnished. Harald V, King of Norway, enters the room, and 200 guests stand to greet him. Then a chorus of 30 men and women, each wearing a blue police uniform, launches into a spirited rendition of "We Are the World." This isn't cabaret night at Oslo's Royal Palace. It's a gala to inaugurate Halden Fengsel, Norway's newest prison.

Ten years and 1.5 billion Norwegian kroner ($252 million) in the making, Halden is spread over 75 acres (30 hectares) of gently sloping forest in southeastern Norway. The facility boasts amenities like a sound studio, jogging trails and a freestanding two-bedroom house where inmates can host their families during overnight visits. Unlike many American prisons, the air isn't tinged with the smell of sweat and urine. Instead, the scent of orange sorbet emanates from the "kitchen laboratory" where inmates take cooking courses. "In the Norwegian prison system, there's a focus on human rights and respect," says Are Hoidal, the prison's governor. "We don't see any of this as unusual."

All I can say is, if orange sorbet is a human right, can chocolate mousse be far behind?

The Ninth Circuit today agreed to reconsider en banc its astonishing decision that federal law requires a state to let convicted felons vote while still in prison. Last January's panel decision in Farrakhan v. Gregoire is here. The three-judge panel had split 2-1, with fringe Judges Tashima and Reinhardt forming the majority and the more rational Judge McKeown (author of the cross decision reversed today by SCOTUS) in the dissent.  Prior posts are here and here.

It had been reported in the press that Wash. AG was going to skip rehearing en banc and go straight to the Supreme Court. However, on February 12 the court called for briefing on whether to hear the case en banc, apparently without being asked.

Meanwhile, back at SCOTUS, the First Circuit's rejection of the same claim in Simmons v. Galvin is on conference for Friday. The docket has an entry for today, saying, "Letter received from counsel for the respondent. (Distributed)." I can pretty much guess what the letter says.

Update: Lyle Denniston has this post at SCOTUSblog with a link to the letter. I guessed correctly.

Stephanie Simon has this story in the WSJ on fast food in the joint.

Selling the inmates burgers and fries has various pros and cons, as described in the article.

So who pays the bill? Some spend earnings from in-prison jobs, and we are all in favor of prisoners working. Some, though, have their happy meals paid for by family from the outside. One woman is apparently spending $250 a month for her brother's burgers and fries. I suspect there are more worthwhile things she could be spending her money on.

The New York State Assembly and Senate both have pending bills to outlaw the participation in torture and improper treatment by health care providers.  The pending bills include as part of their definition of improper treatment:

"Improper Treatment" means (I) cruel and unusual, cruel, inhuman or degrading, treatment of punishment as defined by applicable international treaties and their corresponding interpreting bodies, or cruel and unusual punishment as defined in the United States Constitution or the New York State Constitution.

One wonders whether that would extend to health care providers working in administrative (aka: solitary confinement, supermax) facilities.