Recently in Prisons Category
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."
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.
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.
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.* * *
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.
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?
The gravamen of the original judgment was -- remember -- that medical conditions were constitutionally unacceptable because of overcrowding.
There are several ways to relieve overcrowding. One is to release criminals to take up where they left off (which is what most of them do, given the >50% recidivism rate). That would seem less than optimal, unless one is of the view that more crime more quickly is a good idea.
A second would be to build more prisons. This would cost a lot of money. Since California borrows to a fare-thee-well for things the governing party there views as important, such as transfer payments to its don't-work-for-a-living constituencies, borrowing would seem to be an option. But we are told (very selectively, that is) that borrowing, at least for new prisons, is a no-no. In any event, it's unlikely to happen, and even if it does, the opening of those prisons is years off.
A third option -- the one the court blocks -- is sending inmates to other, less crowded facilities. Why any sensible person would view this as a bad idea is mystifying. The answer to overcrowding is to get less crowded, no?
So what's going on?
With the stay denied, Gov. Brown proposed to do exactly that, which necessarily includes out-of-state facilities, as there is only so much capacity within the state.
Today, as noted in the News Scan, the three-judge court extended the deadline by a measly four weeks and ordered the parties to "meet and confer." Okay, but then there is this provision in the order: "During the meet-and-confer process and until further order of the Court, defendants shall not enter into any contracts or other arrangements to lease additional capacity in out-of-state facilities or otherwise increase the number of inmates who are housed in out-of-state facilities."
Excuse me, your honors, but exactly by what authority do you order California's executive officials, and thereby effectively order the State of California, not to employ additional out-of-state capacity to house its prisoners?
Steinberg's rendition of the deal is here. The deal calls for a request to the three-judge panel to delay the December 31 deadline for getting down to the panel's completely arbitrary population figure. If the judges say no, then Brown's plan to expand capacity goes into effect. Steinberg's release does not say that dismissing the pending appeal in the U.S. Supreme Court is part of the deal.
There is funding for increased rehabilitation programs. I was struck by this paragraph (emphasis added):
Changes the funding formula for SB 678 (2009), which was affected by realignment in a way that dramatically reduced how the savings to probation were calculated. SB 678 provides performance-based grants to counties who have established programs that successfully reduce the number of felony probationers who return to prisons. With this change, probation's continued success with the felony probation offender population will result in approximately $100 million more for evidence-based probation practices under the new formula.Steinberg defines "success" as the probationer (parolee?) not returning to prison. We at CJLF define rehabilitation success as not committing any more crimes. Those are not the same thing. If a "success" rate can be boosted, with a resulting flow of money, by letting a probationer or parolee commit new crimes and get nothing but a
The reality is that major reductions in recidivism through rehabilitation programs are not going to happen. Here and there a program may help someone go straight who otherwise would not have, but most releasees will either go straight or stay crooked on their own regardless of what the programs they are subjected to.
Directing the flow of funding to programs that have been proved successful is a basically good idea, but the devil is in the details. Success must be carefully defined and validly measured.
ORIENT, OH--In yet another glaring indication of the nation's broken criminal justice system, Ohio correctional officers discovered the body of inmate Ariel Castro, a Cleveland man serving a life sentence on rape and kidnapping charges, hanging from his jail cell Tuesday night, prompting strong calls for action from reformers looking to correct America's failed correctional policy.
Looking around for hard data on the latter point, I found a question in the Bureau of Justice Statistics' Survey of Inmates in State Correctional Facilities that seemed to fill the bill. They just asked the inmates who were in on drug charges which drug it was. (Question S5Q13a, variable V0884.) Great. We're golden. Here are the results from a sample of 3,686 questionnaires in the most recent survey available (2004):
Don't know: 2