Recently in Probation and Parole Category

A Second Chance to Do What?

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Sentencing "reform" advocates insist that we should go lighter on sentencing in the name of the distinctly American virtue of "giving people a second chance."

The phrase itself reveals the confusion posing as thought that lies behind this movement.  A person has a "second chance" whether his sentence is 78 months or 96 months.  He has a "second chance" whether it's 16 years or 18 years.  The question in either case is not whether he'll get a "second chance" under sentencing reform he would otherwise miss; the question is what he does with it, reform or not.

This story gives part of the answer.  When I read it, I asked the same question I frequently do:  When early release goes wrong, as it so often does, who pays the price?  The sentencing reform crowd at their posh, self-congratulatory, "we-are-so-humane" parties in Manhattan and Hollywood, or the next unsuspecting victim they helped set up?

A convicted murderer in Michigan, who was paroled early for good behavior after serving 19 years in jail, reportedly killed again less than one year after his release.

Malcolm B. Benson, 50, was serving a 20- to 40-year prison sentence as part of a plea deal he made in 1995, MLive reports. He was initially charged with first-degree murder but the plea deal reduced the charge to second-degree murder. He was also found guilty of felony use of a firearm, which added an additional two years to his sentence.

Benson was paroled on Jan. 13, 2015, after spending just over 19 years of his minimum 22-year sentence in prison.

Like Wendell Callahan's victims, Benson's victim would be alive today if he had been required to serve even the minimum of his term.


America's Under-Incarceration Problem

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The pro-criminal narrative being pushed by such luminaries as Al Sharpton, George Soros and Sen. Mike Lee lectures us that America has too many people in prison for too long.

Paul Mirengoff at Powerline begs to differ:  In more than a few cases, we don't have them in for long enough.

I've argued that America has an under-incarceration problem. Criminals whose records clearly show they should be in jail have, instead, been released and are on the streets committing violent crimes, including some very bloody, high-profile ones.

Here's another example. Samuel Harviley, paroled from prison less than three months ago, is being held without bond for shooting an off-duty Chicago police officer outside his home earlier this week. In withholding bond, the local judge said that Harviley "poses an extreme danger to the rest of us out in public."

Indeed, he does. And he did three months ago when he was released early from jail.

Harviley was paroled from state prison on New Year's Eve after serving four years of a nine-year sentence for a 2011 carjacking, an inherently dangerous crime. A nine year sentence is meaningless if it can be completed in four. Harviley's early release always posed a danger to the community. Now, it has resulted in the shooting of a police officer.

But hey, look, as the anonymous Republican Senate aide said, we can't get everything right.  Boys will be boys!  If police officers get shot, there's really nothing to see, folks.  Move along.
A hotly debated topic in sentencing "reform" is how to deal with recidivism.

My view has been to prevent it for as long as possible by refusing to shorten legal sentences, thus taking advantage of the incapacitating effects of incarceration.  But, I must now confess, sentencing "reformers" have found a more ingenious method: Simply don't count it.  

If there's an uptick in crime, it inevitably gets passed off as "modest" or "moderate," or by some other dismissive word, as Kent, Mike and I have previously noted.  There is a reason for this beyond merely a pro-criminal agenda abetted by statistical sleight-of-hand.  The reason is that the increase in crime tends not to affect the well-paid and comfortable people in charge. When it happens merely to minorities and Trailer Park Trash  --  well, hey, look, those people don't count that much.

Hence today's story from one bastion of "reform" (and "legalized" pot, while we're at it).  The Denver Post asks, "Colorado Reduces Prison Population, but at What Cost to Public Safety?"

Mass Early Release Is Just the First Step

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Most of the time when we're urged to reduce prison sentences, we're earnestly told that a good chunk of the money we'd supposedly save will be "invested" in more careful and active supervised release.  Probation, which is both cheaper and more humane than incarceration  --  so the argument goes  --  will be expanded to help insure we maintain public safety.

Did you think that's actually what sentencing "reformers" are planning?

Think again.  A sample:

This Data Brief demonstrates for the first time that America suffers from "mass probation" in addition to "mass incarceration." Although probation has often been thought of as an "alternative" to prison or jail sentences, the U.S. has achieved exceptional levels of punitiveness in both incarceration and community supervision...

[S]tates should closely reexamine the numbers of people who are placed on probation each year, and the lengths of terms they are required to serve. Options for "early termination" of the lowest-risk and most successful probationers should be explored. Some experts in the field allege that probationary sentences do little to control crime, and frequently do more harm than good.

The plan is not to end "mass incarceration."  The plan is to end punishment.  For years, these people have been telling us that the criminal is the victim, and the problem is not crime, but Amerika's callousness and cruelty.  It's time for us to understand they mean what they say.
A little less than two years ago, now-18 year-old Ethan Couch was sentenced for an automobile collision he caused two years before, in which he killed four people.  Four homicides might lead one to think at least a little jail time was in the offing, but what with "restorative justice" and a nifty psychologist's report, jail time was not to be. Instead, as the Washington Post reports:

Couch was sentenced to a drug-and-alcohol-free probation...; a psychologist and the teen's lawyers argued in his defense that the then-16-year-old's reckless behavior was a result of "affluenza."

I would love to have been a fly on the wall when the hired "psychologist" and the defense lawyer came up with that one.  I could be drunk and stoned and contemplating for ten years and still not have ginned up "affluenza" (a "syndrome" created by wealthy parents who fail to enforce discipline).  But I have never been a match for the creativity of the defense bar and its experts.

Anyway, this week brings us the news that, in the course of the sobered-up life his alleged "probation" was supposed to bring him, Mr. Couch took off for the super-plush resort of Puerto Vallarta, Mexico.  This was after a home video surfaced of his playing a rugged game of beer pong.  He and his mother, who was evidently financing this study in responsible living while staying with him, have now been taken into custody.

Lots of lessons here, but I'll settle for just two:  First, letting a defense shrink tell the tale at sentencing isn't that good an idea; and second, a much better idea would be sharply cabining the discretion of judges so that, no matter how foolish or naive or (in some cases) bought-off they are, serious crimes will get serious sentences. There is no reason we should live with this sort of song-and-dance travesty of justice.


There is much controversy today about sentencing murderers to life in prison without possibility of parole (LWOP).  The Supreme Court's decision in Roper v. Simmons -- permanently taking the death penalty off the table for under-18 murderers -- was still warm out of the laser printer when the drive to ban LWOP for them shifted into high gear.

Why not hold out a possibility of parole?  A sentence of life with parole for a killer often means a life sentence to opposing parole for the murder victim's family.  I have represented victims' families in a number of cases.  (See, e.g., this brief.)  In each case, they have been intensely interested in seeing the killer receive the full punishment he was sentenced to, whether that be death or truly spending the rest of his life in prison.

Now the Daily Beast has an interview with a particularly famous survivor, Yoko Ono:

The Victims of "Smart Sentencing"

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Over most of the past decade liberal groups, which originally opposed and have for years sought to eliminate the so-called  "harsh" habitual criminal sentencing policies adopted in the 80s and 90s, have launched collaborative efforts with libertarians and some Republicans to encourage alternative sentencing.  "Right on Crime","Smart on Crime" and "Smart Sentencing" advocates have been successful at changing policies in many parts of the country to reduce sentences for criminals categorized as non-violent, and placing them instead in community programs to help them become law-abiding members of society, with the promise of saving millions in state and federal prison costs.  At a time when crime rates are relatively low, and our European betters and Hollywood movie stars are constantly scolding America as the incarceration nation, the allure of an America where bright, dedicated government employees guide minor offenders off the criminal path is difficult for many to resist. 

Early Releases: More Cost, More Crime

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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.

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.

BJS Study Tracks Recividism

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The Bureau of Justice Statistics has released a study tracking the rearrest rate of 405,000 felons released from prison in 30 states.  The BJS press release is here.  The study examines ex-convicts released in 2005 who were rearrested for a new crimes over the next five years.  More than 57% of those released were rearrested in the first year.   By the third year 68% had been rearrested.  After five years 77% had been rearrested at least one time, with many rearrested more than once.  In total, ex-convicts released from prison in 2005 were rearrested 1.2 million times for new crimes.   Property criminals, including burglars, car thieves, and identity thieves were rearrested at the highest rate of 82%.  77% of drug offenders, typically drug dealers, were rearrested over the five year period.  Recividism was highest among blacks, followed by Hispanics and whites.  Age and sex were also major factors with 84% of those 24 or younger rearrested.  The rearrest rate dropped to 69% for those 40 or older.  78% of males were rearrested compared to 68% of females. 

There will be two varieties of spin put on this study.  The first and most publicized will come from "Smart on Crime" advocates, which includes the ACLU, the Urban Institute, the Sentencing Project and much of academia.  They will point to these findings as proof that fixed and progressively severe consequences for criminals, such as mandatory minimums and habitual criminal sentencing have failed to rehabilitate criminals.  We will be told that the current transition to alternative sentencing featuring "evidence based practices" and treatment programs will help to reform the current racially biased system, lower the recividism rate, improve  public safety, and remove the stigma on America as the "incarceration nation."  

     

Public Opinion on Felon Suffrage

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The Rasmussen Poll has this report, beginning with this odd paragraph (emphasis added):

Voters in 11 states can permanently lose their right to vote if convicted of a felony. Among most other states, that right can be restored only after serving some combination of their jail time, parole and probation. But most voters believe someone convicted of a felony should regain the right to vote after serving their sentence problem-free.
What's with the "but"?  Completion of the period of parole or probation is part of the sentence, so the proposition endorsed by most voters is consistent with the law of most states.

Do "Alternatives to Incarceration" Work?

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In a word, no.

We should have learned this decades ago, in the Sixties and Seventies, when the legal world was awash with "alternatives to incarceration" and crime skyrocketed by well over 300%, as shown here.

In the new push to reduce the prison population, fueled ostensibly (but not actually) by cost considerations, we have repeatedly been told that public safety will not by harmed, and might indeed be improved, by giving "low level" (have you ever heard of any other kind?) offenders early release.  "Technocorrections" will keep tabs on them, and they'll "re-integrate" to become productive members of society (for the first time, but no one seems to get around to mentioning that).

And how well do "technocorrections" actually work?  About as well as any honest person would have expected.  My friend Doug Berman, in his SL&P post here, spills the beans from today's LA Times story.

A Deal on California Prisoners

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Cal. Gov. Jerry Brown and Senate honcho Darrell Steinberg have announced a deal to end the Moonbeam v. Moonbats fight on prisoners I noted a couple weeks ago.

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 slap on the wrist wave of a disapproving finger, then such public-endangering dispositions are going to become more common.  (We mustn't slap anyone; that would be violence.)

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.
Remember when Gov. Moonbeam told us about "realignment?"  Remember that we were all going to be safe?  That crime wasn't going to spike just because we were putting criminals back on the street?  Remember that?  Remember when "community supervision," strongly fortified with ankle bracelets, was going to do the job, keep tabs on everybody?  Don't need all this prison stuff  --  remember that?

Hey, look, can't you take a joke?

Hat tip to Doug Berman at Sentencing Law and Policy for this astounding post.   It starts with the sub-heading of an LA Times article:  "Tests found major flaws in parolee GPS monitoring devices: One company's devices were deemed so unreliable that California ordered a complete switch to another firm's, citing 'imminent danger' to the public."

How's that?  Imminent danger to the public?  My goodness.

Doug's entire post follows the break.


Study on Halfway Houses

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In the 1960s, America made a terrible mistake.  We believed too easily in experts who supposedly had the answers for corrections.  They knew how to "fix" criminals who were, after all, sick and not evil.  When the fixes were actually subjected to scientific scrutiny to determine which of them worked, the stunning answer was that none of them did.  In the meantime, lax sentencing contributed to the horrific rise in crime, a rise that was brought back down only after we got tough.

Fast-forward 50 years, and those who do not remember this history are working to condemn the nation to repeat it, over the vehement objection of those who do remember.  One of the programs touted to rehabilitate criminals so we won't need to lock so many up is halfway houses.  Or maybe not.  Sam Dolnick has this story in the NYT:

The federal government and states across the country have spent billions of dollars in recent years on sprawling, privately run halfway houses, which are supposed to save money and rehabilitate inmates more effectively than prisons do.

But now, a groundbreaking study by officials in Pennsylvania is casting serious doubt on the halfway-house model, concluding that inmates who spent time in these facilities were more likely to return to crime than inmates who were released directly to the street.

The findings startled the administration of Gov. Tom Corbett, which responded last month by drastically overhauling state contracts with the companies that run the 38 private halfway houses in Pennsylvania. The system costs more than $110 million annually.

Pennsylvania's corrections secretary, John E. Wetzel, who oversaw the study, called the system "an abject failure."
Thanks to Michael Santella for the link.

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