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Pants on Fire

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Dino Cortopassi, a farmer and businessman from California's Central Valley, has been taking out a series of full-page ads in the state's major newspapers (at great expense, no doubt) regarding the spending habits of the state's government.  The series is provocatively titled "Liar, Liar, Pants on Fire!"  The most recent ad takes on corrections:

The Judicial overcrowding mandate forced a reduction of inmate population in California's prisons. Using that mandate as its cover, Sacramento shifted significant COR costs onto Counties/Cities, while claiming to make Counties/Cities whole via "Realignment" payments. That too was a State con job because Realignment "underfunded" County/City cost increases! By comparing county realignment dollars ($10,900 per capita) to COR avoided costs ($34,960 per capita) the underfunded scam is exposed! i.e., The difference between $34,900 and $10,900 equals $24,000 of per capita costs that COR dumped onto Counties/Cities!

That's why County/City Public Safety costs have become staggering, and virtually all County Jails were forced into inmate "early release" on a daily basis. If your County/City Public Safety costs have exploded, send a Thank You note to Governor Brown! Finally, a 29% reduction in COR's 2011/12 population should have reduced its 2014/15 budget. Surprise! Despite COR's 75,000 inmate/parolee exodus, the 2014/15 budget is HIGHER THAN PRE-EXODUS!  If a cost-cutting Governor was in charge, how could that be?!

Hold Your Horses

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The Federal Judicial Conference got it mostly wrong, but got the bottom line right, in assessing the need for "sentencing reform."  That phrase has a more common sense translation meaning, "let felons out earlier than present law would provide and hope for the best."

The Conference Report, out today, noted that:

...policy initiatives curbing over-federalization of criminal law, reforming mandatory minimum sentences and amending the Sentencing Guidelines have the support of the Judicial Conference, but that the Judiciary currently lacks the resources to shoulder resulting increased workload.

"Policy-makers must not create a new public safety crisis in our communities by simply transferring the risks and costs from the prisons to the caseloads of already strained probation officers and the full dockets of the courts," said Judge Irene Keeley, chair of the Judicial Conference Criminal Law Committee." 


"The Conference most recently supported, with certain conditions including delayed implementation, retroactivity for the Sentencing Commission's recent amendments to the Drug Quantity Table. Implementing this policy on a retroactive basis will result in many inmates being released from prison and into the custody of probation officers, who work for the Judicial Branch.  Without delayed implementation for the Judiciary to seek necessary resources and prepare for this influx of offenders into the probation system, public safety could be compromised."

Very roughly translated, what this means is that we should stand back, take a deep breath, and examine, with patience instead of haste, what the measures already in train (such as lowered present guidelines and DOJ's cutting back on mandatory minimum charges) produce.  Will there be big cost savings?  Or will there be, as there has been in California, significantly more crime?  The Conferences's explicit warning that public safety may be compromised by moving too quickly is a particularly welcome reminder, and should weigh heavily with policy makers.

Dan Walters had this post, with the above title, on the Sacramento Bee's Capital Alert blog last Friday:

Gov. Jerry Brown's "realignment" of criminal justice procedures, aimed at reducing overcrowding in state prisons by diverting more felons into local jails and probation, has not resulted in lower rates of new criminal activity among offenders, a study by the Public Policy Institute of California concludes.

New offenses by those released from custody are known as "recidivism" and putting felons under local control was supposed to include more drug treatment and other programs to reduce their criminal activity.

However, the PPIC study concludes, "We find that the post-realignment period has not seen dramatic changes in arrests or convictions of released offenders. In the context of realignment's broad reforms to the corrections system, our findings suggest that offender behavior has not changed substantially."

"Overall arrest rates of released offenders are down slightly, with the proportion of those arrested within a year of release declining by two percentage points," the authors of the study, Magnus Lofstrom, Steven Raphael, and Ryken Grattet, continue. "At the same time, the proportion of those arrested multiple times has increased noticeably, by about seven percentage points. These higher multiple arrest rates may reflect the substantial increase in the time that released offenders spend on the streets--a result of counties' limited jail capacity."

The PPIC study may provide new ammunition for the critics of realignment who contend that the state is solving its prison overcrowding problem under pressure from federal judges but in doing so is putting new burdens on local governments, particularly county jails, that result in more criminal activity.

A New Way to Smuggle Drugs Into Prison

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To heck with body cavities.  Technology carries the day.  And the drugs.

Early Releases: More Cost, More Crime

The major promise behind proposed federal legislation to lower mandatory minimum sentences is that it will reduce prison costs while preserving the low crime rate we have achieved over the last 20 years.

That of course is an empirical question.  Many in favor of these proposals, in particular ones like the Smarter Sentencing Act, point to the experience of such states as Ohio and Texas to show that the promise has been kept.

They seem to be much more quiet about the state that has more early releases than the rest of the states combined  --  California.  The second item in today's News Scan shows why:  As the early release program in the Golden State has taken hold over the the last three years, prison costs are up by a whopping two billion dollars and the crime rate is, unlike the majority of the rest of the states, also up.

So what should Congress do with the Smarter Sentencing Act?  I gave the answer in my testimony before the Over-Criminalization Task Force of the House Judiciary Committee last month.

Transgender Prisoners and Surgery

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Previously we noted, here and here, the First Circuit case of Kosilek v. Spencer, No. 12-2194.  Robert Kosilek is in a Massachusetts prison for murdering his wife, and he wants the taxpayers of that state to pay for "gender reassignment" surgery as "treatment."

Yesterday, Dr. Paul McHugh, former chief psychiatrist for Johns Hopkins Hospital, had this op-ed in the WSJ (subscription required) questioning whether this "treatment" is appropriate for any patient:

Impenetrable at Stanford Law

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Not to knock my alma mater, but Stanford Law School is home to a lecturer in law, Michael S. Romano, who seems oblivious to the preeminent realities about crime and sentencing staring him in the face.

This article from the National Journal  --  the eight trillionth about supposed overwhelming Republican zeal to join forces with the criminal defense bar  -- contains the following paragraph:

What's changed the political equation on crime [in the last three decades]? The most important factor is the decline in the crime rate. After surging through the 1980s as the crack epidemic crested, the violent crime rate has fallen almost every year since 1993 and now stands at only about half of what it was then, according to FBI figures. (A separate Bureau of Justice Statistics crime survey shows the violent-crime rate ticking back up over the past two years but still down about two-thirds from its 1993 level.) "We have an incredible opportunity for change because crime is down," says Michael S. Romano, a lecturer at Stanford University Law School.

Is this what passes for critical thought at Stanford nowadays?

The National Research Council (NRC) recently put out a report on incarceration in the United States.  It amounts to 450 pages of singing the same, tired liberal tune we have heard for years.  If you want to find out what it says, you'd save some time just listening to the two more succinct liberal witnesses at today's House hearing, Mark Levin of Right on Crime and Prof. Bryan Stevenson of NYU.  

Prof. John Pfaff has plowed through it, however, and finds numerous errors and omissions.  Hat tip to Doug Berman and SL&P for collecting Prof. Pfaff's pieces, which he does here, under the appropriate title, "The Good, the Bad and the Ugly of Mass Incarceration Analysis: John Pfaff tears apart NRC report."
Paige Sutherland reports for AP:

Michelle Kosilek, born Robert Kosilek, has been in a heated legal battle to get the surgery, which she [sic] says is required to relieve the emotional stress caused by the disorder. Kosilek is currently serving a life sentence for killing spouse Cheryl Kosilek in 1990.

In 2012, a federal judge ruled that the department must give Kosilek the surgery.

In January, that decision was reaffirmed by a three-judge panel of the 1st U.S. Circuit Court of Appeals, which said it is a constitutional right to receive medically necessary treatment "even if that treatment strikes some as odd or unorthodox."

The prisons department appealed and won a rehearing before the full appeals court. Five appeals court judges heard arguments on the matter Thursday and could take months to issue a decision.

See also this prior post.

Is America Over-Incarcerated?

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That's one of the big questions, if not the biggest, in the national debate about sentencing "reform."

My own view is that it's a misdirected question because it focuses on the wrong population. The people who mainly deserve our concern are the huge, law-abiding majority, not the tiny minority who, because of their own greed-driven choices, are residing in jail.  And the law-abiding majority is better off today by far than it was a generation ago, in significant part because we've incarcerated more of the bad guys for longer and thus reduced crime victimization.

Indeed, as Charles Lane of the Washington Post points out, much of the over-incarceration narrative is behind the times and simply mistaken.  I found this point particularly illuminating:

In an oft-quoted but empty phrase, the [National Research Council] report declares the growth of incarceration in the United States "historically unprecedented and internationally unique."

The same might be said for the United States itself. This is the only nation on earth with more than 100 million people, effective, democratically accountable law enforcement and a lot of crime.

If we released all drug offenders, the incarceration rate would still be much higher than that of Europe. Ditto if we released all minorities. Nor are U.S. racial disparities unique. Canadian statistics show that, for unknown reasons, the black share of Canada's prison population is three times that of the general population -- the same as in the United States.

Lane's article is, for the reliably pro-defendant WaPo, a surprisingly fresh and balanced look at the issue, well worth the read.

Limitations of GPS Monitoring

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In case there is anyone out there who still thinks GPS monitoring is a magic solution, consider this article by Alex Cantatore for the Turlock City News:

A Fresno man who was convicted for sodomizing two infants is now at large, and may be in Stanislaus County.

The California Department of Corrections issued a warrant for the offender, Kenneth Lawson, on April 16. He was released on GPS-monitored parole, but is believed to have cut off his GPS tracking ankle bracelet.

Baltimore Behind Bars

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Charles Lane has this article at the City Journal with the above title.  The subtitle is "Public-union power enabled scandalous corruption among the city's correctional officers."
One of the principal arguments for the Smarter Sentencing Act is that its reduced use of incarceration will help curb the federal debt.

Is that true?

Today, tax day, is a good day to see for yourself.  Take a look at where your tax money actually goes.
The U.S. Supreme Court today took up a case that may be as remarkable for how it got to the high court as it is for the eventual holding.  Arkansas prisoner Gregory Holt, alias Abdul Maalik Muhammad, filed a handwritten certiorari petition on his own.  He claims the State's anti-beard policy violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Free Exercise Clause of the First Amendment.  The case is Holt v. Hobbs, No. 13-6827.

Back in November, the Court enjoined Ark. DoC from enforcing its policy against Holt, for the first 1/2 inch of beard, until disposition of the case.

Update:  The Court subsequently amended its grant of certiorari to narrow the Question Presented to "Whether the Arkansas Department of Correction's grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. ยง2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs."
In a Friday evening "document dump," attorneys for California Governor Jerry Brown and the prisoners filed a stipulation to dismiss Brown's appeal to the Supreme Court of the three-judge court's order on California prisoner population.  The stipulation was filed at 5:03 p.m. PST.

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