Recently in Prisons Category

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. §2000cc 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.

The Prisoner Sex-Change Case

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Today's News Scan notes that the Massachusetts Department of Corrections intends to seek further review of the decision of a panel of the U.S. Court of Appeals for the First Circuit that it must pay for sex-change surgery for a murderer.  More precisely, the DoC is seeking rehearing en banc.

The First Circuit only has six "active" judges.  Three of them were on the panel and split 2-1.  (Opinion here.)  To get a majority, the DoC will have to pick up all three of the others.  I'm not terribly optimistic.

If rehearing en banc is denied, DoC can file a certiorari petition with the Supreme Court, which may be the main plan.
Tuesday, the US Court of Appeals for the Ninth Circuit took a bite out of federal court micromanagement of prisons in Griffin v. Gomez, No. 09-16744.

Griffin has been in prison since 1970 and was validated as an Aryan Brotherhood member in 1979.  Gang members can and do commit crimes while in prison, sometimes within the prison and sometimes by arranging them on the outside.  Griffin was therefore confined to the secure housing unit, known as the SHU.  He petitioned for release, claiming he had sworn off the gang and was a changed man.

"Procedurally, this case is a mess" (p. 17).  I'm sure judges say that a lot in chambers, but it's quite another thing to read it in the opinion.

Going to Prison Will Ruin Your Life

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...or so say those who urge less prison and more resort to "community based programs"  a phrase that means, roughly translated, "Let them run wild while we pretend to monitor them and then profess shock at their next murder."

Still, trying to take this seriously, is it the case that going to prison will ruin your life? Well, it's going to create complications, you bet.  If you're honest, you'll have to tell prospective employers about it.  The time you spend there will be time subtracted from your career. Your treatment, everything from diet to clothing to medical care, is not going to be optimal (unless you demand a sex change, in which case you get transferred to the Ritz). Sometimes the treatment can be worse than substandard; it can be abusive.

So does going to prison ruin your life?  Ask Ms. Alice Herz-Sommer.  And remember her story the next time a defendant or defense lawyer tells you that incarceration is the death knell of a productive future.

Opposing the Drive to Repeat History

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The Urban Institute has been a leader in the drive to forget the history of the failed soft sentencing policies of the Age of Aquarius and to condemn America to repeat them.  Today, the U.S. Senate Judiciary Committee held a hearing on Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism.  The Urban Institute representative said the usual stuff.

What was unusual in today's hearing was testimony noting the deficiencies in UI's Pollyanna pronouncements by Dr. Matt DeLisi of Iowa State University and Dr. Jeffrey Sedgwick of Keswick Advisors.

DeLisi testified, "The Urban Institute proposal to potentially release 36,000 inmates over the next 10 years would produce an estimated 540,000 to 612,000 new Index crimes."

Sedgwick testified, "To summarize the lessons from the crime decline of the 1990s (which has continued, though at a much slower rate, up until 2010), one would fairly say that, among the criminal justice policies proffered as causes, the case for effectiveness is stronger for incarceration than for crime prevention or intervention programs. And yet there are those who still earnestly advocate a redistribution of criminal justice funds from incarceration to its alternatives."
Yesterday, I noted Heather MacDonald's op-ed in the WSJ.  Today, a considerably expanded version is available in the City Journal, and no subscription is required to access it.
The Pew Charitable Trusts and the MacArthur Foundation have a report on prison health care spending.  As you would expect from these sources, the discussion of the causes of cost increases has a giant blind spot:  federal courts ordering more expensive health care than the Constitution actually requires.

California spends more than double the national median per inmate for health care.  Isn't that curious?  Shouldn't we examine why?  No, that might lead to a Politically Incorrect conclusion.  We mustn't confuse people with inconvenient truths.
"Once more unto the breach, dear friends, once more."  The California prisoner release litigation is headed back to the US Supreme Court for the third time.

The first time, a three-judge court composed of three of the most pro-criminal, anti-victim judges in the entire federal bench ordered massive reductions in California's prisoner-to-capacity ratio.  The Governator appealed, but the decision came down after Jerry Brown had retaken the office.  The Supreme Court affirmed in Brown v. Plata.  At the end of the opinion, though, the high court noted that the formula in the order was not carved in stone and should be reconsidered as needed.

The three-judge court ignored the latter admonition, ignored the progress California has made, and refused to modify its formula.  The state appealed again to the Supreme Court but got tripped up in the technical distinction between an appeal from an injunction and an appeal from a refusal to modify an injunction.  Jurisdiction for the latter lies in the Court of Appeals, not the Supreme Court, and the appeal was dismissed for lack of jurisdiction two weeks ago. See this post.

Depending on your point of view, California has already released either the most it can without endangering the public (Brown's view) or more than we safely can, having already endangered the public (my view).  See also this article in the WSJ by Heather MacDonald.  Pushing more prisoners on county jails will not work, as the realignment program has already filled the jails in many counties beyond capacity.  So the options to comply with order are to either expand capacity by using out-of-state placements or unleash dangerous criminals on the public.

In a breathtakingly astonishing act of judicial arrogance, the three-judge panel actually ordered the Governor of California not to enter into any contracts for out-of-state capacity, without citing any legal basis whatsoever for such a prohibition.  This is a new injunction, and should be within the Supreme Court's direct appeal jurisdiction.  The Governor has filed a notice of appeal. Just in case, he has also filed a protective appeal to the Ninth Circuit. I suggest the Governor also make a renewed motion to modify the underlying order and appeal the inevitable denial to the Ninth Circuit.

The case has not appeared on the SCOTUS online docket yet.  I will post a link when it does.

Private Isn't Always Better

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For some of my friends of the libertarian ilk, it is nearly an article of faith that private businesses always perform any function better than government agencies.  I do not doubt that is true for a wide variety of functions, but not all.  Joel Millman has this story in the WSJ (subscription) on the growing disenchantment with privately run prisons:

Corrections policy is at a crossroads in Idaho as government officials decide how to staff the 2,060-bed Idaho Correctional Center now that the country's largest private prison operator has decided to quit the state.
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The Chickens Come Home

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For years now, we have been told  --  no, we have been lectured  --  that we incarcerate "too many people for too long," as Eric Holder told his fan base at the ABA convention back in August. Those believing, as CJLF does, that the huge reduction in crime over the last 20 years was brought about in significant part by the large increase in imprisoning criminals have been laughed off.  Everything and anything else has been enlisted as an explanation, from abortion to the elimination of lead-based paint and gasoline.  We could safely release "low-level" (is there any other kind?) inmates, we have been told, and crime would not increase.  Indeed, it would decrease, because the inmates would no longer be "schooled" in crime while in prison, and would "return to be productive members of their communities." The punitive and Neanderthal sorts who thought otherwise needed to get with it, and learn to adopt "evidence-based" corrections policy.

OK, in the past three years, the prison population has indeed decreased, as several states, most notably California, have reduced their prison population.  So now, the evidence  --  the BJS figures released this morning  -- is in.

What does it say?

It says what we knew from the getgo:  That despite the other side's ceaseless and dishonest campaign, it remains the case that, when you put criminals in jail, you get less crime, and when you let them out prematurely, you get more.

Now we are getting more, as the BJS figures show.  Will our opponents take any responsibility for the additional crime  --  and thus the additional loss and suffering  -- their policies have helped create?  Or will they keep carrying the flag for criminals, despite the evidence they once claimed to value?


The US Supreme Court took a narrow view of its jurisdiction to hear appeals from decisions of three-judge district courts issuing prisoner release orders, dismissing the appeal of Gov. Jerry Brown in the California prison case.

In the Prison Litigation Reform Act, Congress added prisoner release orders to the small set of cases that must be heard by a three-judge district court.  District court decisions are normally made by one judge sitting alone.  A statute going back to the 1948 revamp of the judiciary code gives the Supreme Court jurisdiction to hear appeals from orders of three-judge district courts granting or denying injunctions.  See 28 U.S.C. §1253. A parallel statute for appeals of injunctions to the court of appeals expressly includes appeals of orders "refusing to dissolve or modify injunctions."  The prisoners argued that this difference in wording excludes from the Supreme Court's jurisdiction an appeal from an order refusing to modify a preexisting injunction as distinguished from an order granting a new injunction. 

The Supreme Court apparently agreed with this argument.  Its order dismissing the appeal contains only a terse citation to §1253.  Institutionally, the court has an incentive to construe its direct appeal jurisdiction as narrowly as possible.  Unfortunately, in this case, the result will be either massive expenditures by an already strapped state or release of dangerous prisoners resulting in the rape, robbery, and murder of victims who could and should have been protected.

The Supreme Court's order is purely procedural and does not imply endorsement of three-judge panel's intransigence.  Gov. Brown can and should continue to fight this order with every available means.

CJLF's press release is here.

Update:  Paige St. John has this story in the LA Times.

SCOTUS This Week

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The US Supreme Court has a two-day calendar this week, rather than the usual three-day, due to the Columbus Day holiday.  The orders list from Friday's conference will be issued Tuesday.

The most important case on the list is the California prisoner release case, Brown v. Plata, No. 13-198, challenging the three-judge court's order to reduce California's prisoner population to a level that even the notoriously soft-on-crime Gov. Jerry Brown asserts is dangerous.  This case is a mandatory direct appeal, rather than a discretionary writ of certiorari, but there is an odd jurisdictional question regarding whether the case actually falls within the high court's direct appeal jurisdiction.  Earlier, the Court turned down a stay application by Brown.  An amicus brief by yours truly on behalf of the four living former governors in support of that motion is here.

SCOTUSblog has other petitions to watch here.  The Cert Pool has the full list, with capital cases flagged, here.

The heavy news coverage this week will be on Schuette v. Coalition to Defend Affirmative Action, argued Tuesday.  It's off topic for the blog, but FWIW here are opposing opinion pieces in the New York Times and Wall Street Journal.

The two criminal cases are set for argument Wednesday.  Kansas v. Cheever involves a compelled psychological examination of a defendant who makes a mental defense but does not claim he is mentally ill.  CJLF's brief in support of the state is here.  An earlier post written after the state court decision is here.   Update:  Hurst Laviana of the Wichita Eagle has this story.

Also up Wednesday is Kaley v. United States, regarding whether an indicted defendant's allegedly ill-gotten gains can be frozen when he needs them to pay his lawyer.
The three-judge court's latest injunction ... like the court's other recent actions, disregards the law and the role of the judiciary. The three-judge court ignored this Court's [the U.S. Supreme Court's] mandate in Plata, this Court's cases governing modification of injunctive relief, and the public safety implications that the [Prison Litigation Reform Act] requires it to consider.....

The three-judge court's latest injunction underscores that its orders no longer have anything to do with ensuring that inmates in two discrete classes receive health care that satisfies the Eighth Amendment--which is what these cases should be about. Nor are they concerned with meeting the 137.5% of prison design capacity population cap, which purportedly is designed to cure care that violates the Eighth Amendment. Rather, the court's interest appears to be in legislating criminal justice policy by reducing the prison population through outright releases of inmates that it--and Appellees' counsel [footnote citing L.A.Times article quoting Don Specter]--do not believe should be incarcerated. See Appellants' Supp. App. 2-3 (agenda for meet-and-confer includes discussion of releases of certain categories of inmates the State already has shown would present public safety risks). [Emphasis added.]

Whew!  Reads like something Bill Otis might have written.  Who did write it?

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