Recently in Prisons Category

California has started releasing criminals early because, so it is said, the state is out of money to fund the prison system.  Only now it turns out that the same force that has driven the state to near-bankruptcy  --  the free spending legislature  --  is considering a bill that would allocate taxpayer dollars to track animal abusers.

I swear I'm not making this up.  Here are the first few paragraphs of the story, as reported by Fox News:

The California state Legislature is considering a new proposal to establish a registry of names -- similar to widely used sex offender databases -- to track and make public the identities of people convicted of felony animal abuse. 

Animal abusers would be tracked like sex offenders if California lawmakers have their way. 

The state Legislature is considering a new proposal to establish a registry of names -- similar to widely used sex offender databases -- to track and make public the identities of people convicted of felony animal abuse. 

The registry, which under the law would be posted on the Internet, wouldn't just include names. The bill calls for photographs, home addresses, physical descriptions, criminal histories, known aliases and other details to be made public. 

Animal abuse is a sick, heart-wrenching and disgusting crime, as anyone will agree who has a dog at home (I have the world's most pig-headed Basset hound).  But to propose new and significant spending on an animal abuse registry while releasing criminals on grounds of insolvency sounds like something that could only happen in.............California.

Chris Lehman reports for Oregon Public Broadcasting:

An Oregon Senate panel voted Tuesday to put a controversial prisoner re-sentencing program on hold.

Lawmakers approved the original plan last year as a way to cut costs in the public safety budget.

Critics blasted the effort, saying it allowed violent criminals to get out of prison early

Now, the Senate Judiciary Committee has voted to suspend the early release program until July of next year. Democratic Senator Floyd Prozanski chairs the committee.

The Ninth Circuit en banc today upheld San Francisco's policy of strip-searching everyone booked into the jail, superseding a prior 2-1 decision of a 3-judge panel and reversing the decision of District Judge Charles Breyer.*

The decision was 6-1-4. Judge Ikuta wrote the opinion, joined by Judges Kozinski, Rymer, Gould, Clifton, and R. Smith. Judge Graber concurred in the judgment on qualified immunity grounds while agreeing with the dissent on the substantive Fourth Amendment question. Judge Thomas wrote the dissent, joined by Judges Wardlaw, Berzon, and Rawlinson.

An excerpt of the majority opinion follows the jump.

Robert Lewis and Sam Stanton report for the Sacramento Bee:

One of the inmates the Sacramento County Sheriff's Department released early as part of an effort to reduce the state's prison population was arrested Tuesday on suspicion of attempted rape, less than 24 hours after getting out of jail, The Bee has learned.

Kevin Eugene Peterson got out of jail Monday night after serving about two months on a four-month sentence for violating probation on a prior felony conviction. Peterson was arrested 12 hours later, around 12:30 p.m. Tuesday, on suspicion of an attempted rape involving a female counselor at the 1300 block of North C Street, a Sacramento Police Department spokesman said. He was booked into the Sacramento County jail at 3:21 p.m. Tuesday on suspicion of attempted rape, sexual battery, false imprisonment and violating the terms of his probation.

"Our greatest fear has occurred almost immediately after the early release of these inmates," said Christine Ward of the Crime Victims Action Alliance. "We are certain that we will see more of this as more inmates are released from jails and prisons."

Peterson has a criminal history including a 2008 felony conviction for assault with a deadly weapon. He pled guilty and was sentenced to a year in prison. On Dec. 2, he was sentenced to four months for violating the terms of his probation, according to court documents.

Only nonviolent inmates will be released. There is no point in imprisoning people on technical parole violations. We know how to identify the ones who can be safely released. This program will enhance, not endanger, public safety. This is part of being smart on crime.

Oh, and would you like to buy a bridge?

At the top of today's orders list is this order in the appeal of Schwarzenegger v. Plata and a companion case:

The appeals are dismissed for want of jurisdiction. The Court takes note that a further order has been entered in this case, but that order is not the subject of these appeals. It is also noted that the district court has stayed its further order pending review by this Court.

Understanding what the Court did and did not decide (mostly the latter) takes a bit of background.

The Supreme Court's orders list from today's conference is available on SCOTUSblog but not, as of 2:00 pm PST, on the Court's own web site.

All five cases granted are civil. Conspicuously absent is Schwarzenegger v. Plata, the big California let-em-all-out case. Usually when the Court releases a list of cases accepted on Friday, the list at the beginning of the following week* is all denials. We'll have to wait and see whether the Governator's case is denied or relisted. There have been further developments in the lower court, and the appellant just filed a second supplemental brief yesterday, so possibly they took it off the calendar to give the opposing party a chance to respond.

*Tuesday next week because Monday is a holiday.

The SCOTUSblog post on Schwarzenegger v. Plata noted in today's Blog Scan has a version of the Questions Presented that may be a bit confusing. The full text of the QP from the Jurisdictional Statement is after the jump.

Following up on yesterday's post about the Ninth Circuit's decision to let murderers vote, even while still in prison, here is more coverage: Bob Egelko in the SF Chron; Jonathan Martin in the Seattle Times; Doug Berman at SL&P; Rick Hasen at Election Law blog, twice.

Egelko and Martin quote state officials (SecState and AG, respectively) saying they will appeal further. Berman agrees with me that the case is certworthy for SCOTUS if the Ninth doesn't reverse it en banc. Hasen is "not so sure. The Court turned down the earlier cert. petition in this case, as well as cases raising the same issue from other circuits." Yes, but this is now a final judgment, and there is now a much sharper circuit split. See pp. 125-126 of the slip opinion. Those are big differences for certiorari.

I think the chances of correction en banc are very good, though. Dissenting Judge McKeown, a relatively moderate Clinton appointee, is much closer to the Ninth's ideological center of gravity than the two in the panel majority. If the case is taken up in the Ninth's unique "limited en banc" procedure, now-Chief Judge Kozinski, who dissented from denial of en banc last time, is now guaranteed a seat on the 11-judge panel, with the other 10 chosen at random.

If the Ninth en banc does overturn the panel and affirm the district court, that would leave the prisoners with a certiorari petition to SCOTUS with no circuit split -- a longshot, to put it mildly.

Update (Wednesday 9:20 PDT): Apparently Wash. AG McKenna has decided to skip the rehearing en banc petition and go straight to SCOTUS. Jonathan Martin has this updated story in the Seattle Times:

Washington state will appeal to the U.S. Supreme Court in an attempt to overturn a surprising federal court ruling that tossed out the state's 120-year-old prohibition against voting by incarcerated felons, Attorney General Rob McKenna said today.

Not the way I would have done it.

The U.S. Supreme Court has scheduled for its January 15 conference its consideration of the jurisdictional statement in the California prison case, Schwarzenegger v. Plata, No. 09-416. There is very little to decide, as this is one of those rare cases where Congress has provided for an appeal rather than a writ of certiorari. It is not in the Court's discretion to take it or not. If they have jurisdiction, they have to take it. Howard Mintz has this story in the San Jose Mercury-News.

They probably want to take it anyway, though. On Sept. 11, they denied a stay but added this unusual note: "In denying the stay, the Court takes note of the fact that the three-judge district court has indicated that its final order will not be implemented until this Court has had the opportunity to review the district court's decree."

California's Inspector General, who keeps tabs on the Department of Corrections and Rehabilitation, has issued a report on the supervision of Phillip Garrido, who is accused of keeping the kidnapped Jaycee Dugard prisoner for 18 years despite the supervision. The IG does not agree with CDCR's self-congratulatory statement issued after Garrido's arrest and Jaycee's liberation. The executive summary says, "While it is true that Garrido's California parole was never officially violated, our review shows that Garrido committed numerous parole violations and that the department failed to properly supervise Garrido and missed numerous opportunities to discover his victims."

Also, "In this special report, the Office of the Inspector General shines a public light on systemic problems that transcend parolee Garrido's case and jeopardize public safety."

The latest issue of the Journal of Law and Economics is in my inbox this morning. It includes Emily G. Owens, More Time, Less Crime? Estimating the Incapacitative Effect of Sentence Enhancements, 52 J. Law & Econ. 551 (2009). Here is the abstract:

Sentence enhancements may reduce crime both by deterring potential criminals and by incapacitating previous offenders, removing these possible recidivists from society for longer periods. I estimate the incapacitative effect of longer sentences by exploiting a 2001 change in Maryland's sentencing guidelines that reduced the sentences of 23‐, 24‐, and 25‐year‐olds with juvenile delinquent records by a mean of 222 days. I find that, during this sentence disenhancement, offenders were, on average, arrested for 2.8 criminal acts and were involved in 1.4-1.6 serious crimes per person during the period when they would have otherwise been incarcerated. Although my findings are significantly lower than previous estimates of incapacitation, I find that, on the margin, the social benefit of the crimes averted by incapacitation is slightly higher than the marginal cost to the state of imposing a 1‐year sentence enhancement.

The only surprise here is "slightly." If keeping 10 recidivists locked up for an additional 222 days each prevents 28 crimes, 15 of which are "serious," that would seem to be well worth the cost.

On page 569, Owens acknowledges that the estimate of the cost of crime she is using may be a lowball. "More recent studies (Cohen et al. 2004; Rockoff and Linden 2006) have suggested that the social cost of crime may be significantly higher."

Even with the low-end estimate of the cost of crime, Owens finds recidivist enhancements to be cost-effective on the incapacitation effect alone. Add the deterrent effect, see, e.g. Kessler & Levitt, Using Sentence Enhancements to Distinguish between Deterrence and Incapacitation, 42 J. Law & Econ. 353 (1999), on top of that, and the case is clear.

Letting habitual criminals out to save money is penny wise and pound foolish.

As the Prison Litigation Reform Act case was making its way through Congress, a frequently cited example was the prisoner who sued because he got the wrong kind of peanut butter. Circuit Judge Jon Newman later wrote a law review article contending that the suit had been misrepresented, 62 Brooklyn L. Rev. 519, but he failed to provide the case information so others could check it out. Even under Newman's version of the facts, the case was over $2.50 and shouldn't have been a federal court matter.

Whatever the facts of the peanut butter case are, prisoners do claim constitutional violations over trivial matters, and SFweekly.com has a fresh example for us. Prisoners at Pelican Bay, California's maximum security institution also known as "Slammer by the Sea," have sued because the prison raised the price of a jar of coffee from $6.40 to $7.50. (That's a penny more than the SF Safeway charges for the same jar, BTW.) The prison is no longer able to fund the Inmate Welfare Fund by keeping the interest on inmate trust accounts (even though the State Bar confiscates interest on lawyer trust accounts to fund its pet project). So they increased the markup on food items to make up the difference.

Is that a policy people may legitimately disagree with? Sure. Is it a violation of the Constitution of the United States? Get real.

One of the great things about the Internet is that, unlike in 1995, the article is accompanied by a link to the actual complaint, so everyone can read it for themselves. Yep, that's really what it says. On top of that, the inmates are represented by counsel, and of course they want attorneys' fees under 42 U.S.C. §1988.

One thing we really need in civil rights suits is reciprocity of attorney fee awards. It is fundamentally wrong for one party to be entitled to receive fees if he wins but not subject to pay them if he loses. California recognized that over three decades ago when it provided reciprocity in contract cases (Civil Code §1717). It is high time we did the same in civil rights cases. Falsely or frivolously accusing someone of a civil rights violation is just as bad as committing a civil rights violation, and the same liability for fees should follow.

Is the existing research on the effect of imprisonment on crime biased against finding an effect? Is the research cited with such confidence by the let-em-out crowd wrong?

On SSRN is a new study by Thomas Marvell of Justec Research. Here is the abstract (emphasis added):

This is a critical review of the literature concerning the impact of prison populations on crime. It summarizes 44 time series studies that use prison population in the crime equation, emphasizing problems of simultaneity and disaggregation bias. It briefly reviews studies that estimate the incapacitation impact of prisons by using criminals' individual crime rates, emphasizing problems caused by skewness of the crime rates and their relationship with arrest rates. Almost all the numerous problems with prior research bias results towards finding that prisons have limited impacts, and once the problems are addressed the best estimate of the elasticity of prison populations on crime is about 1.0.

Wow. This could be huge.

The final topic is the policy implications of this body of research. Perhaps the most obvious is that economists and criminologists have not been able to provide policy makers with credible estimates of the impact of prisons on crime and with useable advice about whether further prison expansion is worth the costs.  My conclusion is that the elasticity is roughly one, and that prisons are worth the costs, but other researchers believe that the elasticity is much smaller and that crime prevention money is best spent elsewhere.

In California, we have the administration confidently asserting that tens of thousands of prisoners can be released without danger to the public. The three-judge criminals' dream team rules with even greater confidence that even larger numbers can be safely released. But here we have an expert in the field telling us that the prior estimates by other experts are biased.

Jurors often say after the verdict that when the expert witnesses contradict each other, they just ignore them both and go with common sense. Maybe that's what we should do here.

Thanks to Doug Berman for noting this paper.

The Sacramento Bee had a four-article opinion-page debate on whether California should have a sentencing commission. Interestingly, neither "pro" author actually defends the proposal that was defeated in the Legislature this summer. Both make the case for a very different proposal. Kara Dansky from Stanford Law School writes in favor:

Here's how sentencing commissions typically work. A state legislature enacts legislation to create a sentencing commission. That law gives the commission the authority to collect sentencing data, promulgate sentencing guidelines, create correctional population models, educate the public, comment on proposed legislation related to sentencing and corrections, and make recommendations regarding the need for further legislation and policy development.

Yes, but that is not what was proposed for California. Sacramento DA Jan Scully notes the difference here:

A sentencing commission would have the ability to reduce sentences for crimes - which some legislators want but cannot get a majority of their colleagues to support. So under the proposal, a commission would be given authority to change punishments, without a legislator having to go on record supporting the reduction. A legislator will be able to say to the public, "I didn't do it, the commission did."

A sentencing commission that researches and advises the Legislature - something the Legislature already has staff to do - might have value, but this proposal does more: It gives the commission authority to rewrite sentencing laws. This non-elected, appointed commission would decide what the sentences should be for crimes, setting one specific sentence for each crime and then establishing "guidelines" - rules dictating if, when and how a judge could give a different sentence.

A chronic problem in many kinds of research is that we cannot directly observe the variable we are interested in. We have to observe something else that we think/hope is close enough to the one we care about that we can "operationally define" the observable quantity to be the important quantity.

How do we define "success" in rehabilitation efforts? True success is that the offender does not commit any more offenses. The observable quantity is whether the offender has been caught committing more offenses. On March 9, 1999, the U.S. Parole Commission issued the following certificate to a parolee:

"You are hereby discharged from parole," the March 9, 1999, certificate read.

"After a thorough review of your case, the Commission has decided that you are deserving of an early discharge," said the document signed by administrator Raymond E. Essex. "You are commended for having responded positively to supervision and for the personal accomplishment(s) you have made.

"The Commission trusts that you will continue to be a productive citizen and obey the laws of society."

The parolee was Phillip Garrido. He had already kept Jaycee Dugard in captivity for 8 years at that point, and he would keep her for 10 more. Sam Stanton and Denny Walsh have this story in the Sacramento Bee.

Let us keep that in mind every time we hear about recidivism rates. The one thing we know for certain is that the true rate is higher than the observed rate. The only question is how much higher.