What Will Happen to the Clemency Movement in the Trump Administration?

Clemency advocates fear president-elect Donald Trump could reverse direction on Obama's sentence commutations.

Clemency advocates fear president-elect Donald Trump could reverse direction on Obama's sentence commutations.

By Christopher Zoukis
 
Rather than slackening off as the Obama administration nears its final days, the clemency initiative announced in April 2014 for federal prisoners is picking up speed. From the Oct. 1 start of the current fiscal year until two days before Election Day, the president had issued 272 sentence commutations — nearly one-third of its total up to that time.
 
On election eve, the sentences of 72 inmates were commuted, followed by 79 more Nov. 22, bringing the total for the Obama administration to 1,023, exceeding the combined total for commutations issued by all 11 presidents from Harry Truman through George W. Bush. Of Obama’s clemency grants, thus far 342 have gone to inmates serving life sentences, and most recipients were serving lengthy sentences for nonviolent, primarily drug-related, offenses.
 
But what will happen to the commutation movement after Trump’s inauguration?
 
During the presidential campaign, Donald Trump generally sounded a get-tougher line on criminal law, but had relatively little to say on Obama’s clemency program. What he did say, however, sparked fears among advocates of decriminalizing or reducing penalties for drug offenses, or adopting new approaches to incarceration. For example, at a town hall event in New Hampshire two days before that state’s primary election, Trump said the approximately 6,000 inmates released after the Obama administration revised some drug sentencing criteria in 2015 would soon “be back selling drugs.” More recently, at an August event in Florida, the GOP candidate described some of those released under the clemency program as “bad dudes,” before sarcastically telling his audience to “sleep tight, folks.”
 
Another troubling sign to advocates of criminal justice revisions – such as those in a now-apparently stalled bill introduced in Congress last year with substantial bipartisan support – was the president-elect’s announcement he would nominate Alabama Sen. Jeff Sessions (R) as his Attorney General. Sessions has been a consistent proponent of strict drug penalties and an opponent of reducing mandatory minimum sentences.
 
Once in office, Trump cannot reverse clemency grants issued by Obama, but can, if he chooses, quickly reverse executive orders issued by his predecessor. In fact in several areas — such as executive orders for more lenient treatment of young persons not legally in this country, and their parents — Trump has explicitly promised he would do so. Some of the executive orders are already being halted by court orders. Obama administration executive actions taken through regulations, however, will likely have to go through a similar rulemaking process in order to be undone.
 
As for the clemency program, Obama’s White House counsel has said the president, even though a lame duck, will keep on granting clemencies in his final days in office. The Department of Justice official who announced the clemency program adds that the president is aware how deeply a clemency grant can improve the lives of not just inmates, but their families as well.
 
That is not enough, however, for some clemency advocates, who are publicly urging Obama to issue blanket clemency for whole classes of federal inmates – prominently, those who were already serving long sentences for crack cocaine offenses before 2010 — when Congress passed and Obama signed the Fair Sentencing Act, which brought penalties for crack more in line with those for powder cocaine, but was not retroactive.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

 

States Adopt Ballot Measures Revising Laws on Sentencing

Voters in several states adopted a number of criminal justice reform measures.

Voters in several states adopted a number of criminal justice reform measures.

By Christopher Zoukis

With scant weeks remaining before Congress calls it quits, it seems certain there won’t be final action on criminal justice reform measures that started out strongly, but soon got bogged down in the quagmire that is modern-day Capitol Hill.

Proposals introduced early in 2015 to ease mandatory minimum sentencing laws and promote alternatives to incarceration seem fated to expire in the final days of the 114th Congress despite substantial bipartisan support, both in Congress and outside, including not just the Obama administration but many Republican conservatives, and by groups ranging from the American Conservative Union to the American Civil Liberties Union.

But while the drive for federal legislation appears stalled, at least temporarily, voters this November adopted a number of state ballot proposals to revise criminal laws and sentencing practices. California is a leading example. Nearly 64 percent of voters there handily approved Proposition 57, also known as the “Justice and Rehabilitation Act,” a measure backed by Gov. Jerry Brown (D), over the opposition of many of the state’s district attorneys and sheriffs, who argued it was too lenient and too broadly defined some sex offenses as nonviolent.

The ballot initiative undid part of a tougher sentencing provision Brown had signed into law 40 years earlier. Brown defended the proposed changes as needed to meet court-ordered reductions in state prison overcrowding. The most significant and controversial part of the ballot measure proposed to remove some crimes from the “determinate” sentencing law Brown had long ago championed.

As approved by the state’s voters, inmates convicted of nonviolent crimes who have completed their full sentences for their primary offense — without reference to any other provision of state law providing sentence enhancements, alternatives or consecutive sentences — and who had also passed a review on public safety concerns would be eligible for parole. State officials estimated this would make at least 7,000 inmates immediately eligible for release on parole.

The measure also directed state prison officials to devise a new system for shortening sentences for contained inmates’ good conduct while incarcerated, and reversed provisions in a law passed in 2000 which sent more juvenile defendants to adult courts. As passed, the initiative left it to state court judges, rather than to prosecutors, to determine whether offenders as young as 14 will be tried as juveniles or adults.

To get onto the state’s crowded ballot, backers had to not only round up valid signatures from nearly 600,000 voters, but to beat back a lawsuit filed by the California District Attorneys Association challenging the decision by state Attorney-General (now Senator-elect) Kamala Harris to allow the original, narrower petition of juvenile justice provisions to be broadened by adding the other provisions.

Ballot initiatives on criminal justice reform were not just limited to the Golden State. In Oklahoma, voters also approved, by comfortable margins, ballot initiatives revamping the criminal justice system. One proposal (Question 780) downgraded some drug possession and property offenses from felonies to misdemeanors, and placed less emphasis on mandatory minimum sentences and greater emphasis on inmates’ progress in drug treatment and other rehabilitation programs. Another (Question 781) increases the flexibility for counties to channel incarceration costs avoided due to the changes made under Question 780 into drug treatment and community rehabilitation programs.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

 

California Voters Vote to Keep, Speed Up State’s Death Penalty

Propositions on Californias death penalty saw voters reaffirm their backing for capital punishment.

Propositions on Californias death penalty saw voters reaffirm their backing for capital punishment.

By Christopher Zoukis

This year’s election gave California voters 17 ballot propositions to consider. Two initiatives took starkly different approaches to the state’s death penalty, offering voters what was widely described as an “end or mend” choice.

Proposition 62 sought to abolish the death penalty in California state courts, making life without parole the most severe sentence they could impose. In contrast, Proposition 66 called for retaining the death penalty while limiting and speeding up appeals of convictions in capital cases.

The Golden State has a fairly long and complex history with capital punishment. In 1972, a court ruling halted executions, only to see voters approve a ballot initiative reinstating the death penalty and more specifically defining the special circumstances in which it can be used. A 2006 decision by a federal judge in San Jose found fault with the way the state was carrying out lethal injections. After a botched lethal-injection execution in Oklahoma caused a Death Row convict obvious, intense pain, the judge ordered what was supposed to be a temporary moratorium on executions, and required that future executions have a doctor or other qualified health practitioner be in attendance to ensure the condemned prisoner had been adequately sedated.

Medical societies argued their ethics prevented members from participating in executions, and the ensuing impasse and other difficulties — such as difficulty obtaining the drugs used in lethal injections —blocked all executions in the state for the next 10 years. As a result, there are now about 750 residents on San Quentin’s Death Row.

Opponents of capital punishment argued Proposition 62 could, within a few years, reduce state spending by about $150 million annually, by eliminating now-automatic direct appeals to the state Supreme Court of death sentences, and reducing many other death sentence appeals to state and federal courts, which can delay death sentences by years or even decades. Four years ago, by a 52 to 48 percent margin, California voters rejected a similar initiative to abolish the death penalty.

Proposition 62 actually received a lower percentage of positive votes (46.1 percent) than the 48 percent for the 2012 repeal effort, while opponents — drawing almost 54 percent of the vote, compared with 52 percent in 2012 — did better. This year’s repeal initiative garnered often-slim majorities in just 15 of the state’s 52 counties. It drew 60 percent or more favorable votes in just four counties (San Francisco, Marin, Alameda and Santa Cruz), but amassed negative votes of 70 percent or more in about a dozen other counties.

Competing initiative Proposition 66, on the other hand, explicitly retains the death sentence and limits appeals by revising post-sentencing procedures. Approved by about 51 percent of voters, it embodies the Death Penalty Savings and Reform Act, which directs California courts to adopt rules to expedite legal appeals in death sentence cases, sets new time limits for appeals and would draft lawyers to handle those limited appeals.

But a lawsuit filed by a former state attorney general against state officials the day after the election seeks to keep Proposition 66 from taking effect, arguing it conflicts with the state constitution by interfering with inmates’ rights to bring — and state courts’ powers to hear — appeals of death sentences. A decision on whether that challenge will be heard could come soon.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

Presidential Race Saw Sharp Differences on Criminal Justice Issues

The candidates differed sharply on various criminal justice issues.

The candidates differed sharply on various criminal justice issues.

By Christopher Zoukis

Along with bitter personal attacks and accusations of criminality, this year’s presidential campaign highlighted sharp differences in perspective and policy preferences between major party candidates Hillary Clinton and Donald Trump. Before we begin to get too deep into speculation over how the newly elected president will proceed in these areas, it’s probably useful to review some of the major controversies the candidates dealt with the area of criminal justice.

Crime Rate: What Direction Is It Heading?

As the nominee of the party out of power (until he takes office in 2017), Republican Donald Trump could be expected to criticize incumbent Democrats’ record on crime, and he quickly seized on what he maintained was an “out of control” crime rate. In a bid to establish himself as the “law and order” candidate, he charged the administration had drastically reduced criminal enforcement. Hillary Clinton, on the other hand, defended the record of the Obama administration in fighting crime, even claiming in a July appearance at Columbia University that crime had reached “historic lows.”

Judging by the Federal Bureau of Investigation’s most recently issued crime statistics, however, there appears to be at least an element of truth in each candidate’s claims. The agency’s Uniform Crime Reporting System show a national 3.9 percent rise in violent crimes between 2014 and 2015, with a greater than 10 percent increase in murders, and even more extreme increases in Chicago and some other areas.

At the same time, however, the UCR system is far from perfect, since about 30 percent of police agencies opt not to send in their statistics, making comparisons inexact. Further, looking at longer periods than just a year-to-year comparison, crime rates have generally been declining, so an apparent recent spike may be just a tapering off long-term declines.

What Changes Should Be Made in Sentencing and Prison Policies?

Reducing sentences for drug offenses was a central feature of the Clinton campaign’s platform on crime, calling for cutting in half present-day mandatory minimum sentences for nonviolent drug offenses, making retroactive legislation that reduced sentencing disparities for crack and powder cocaine, and no longer considering previous nonviolent drug convictions as plus factors in sentencing decisions. Despite his anti-crime speeches, Trump was far less specific on his proposals in the area.

The candidates also differed sharply on the issue of using private prisons for federal inmates: Clinton supported the Obama decision to phase them out for the Bureau of Prisons, while Trump indicated general support for federal prisons being privately owned and operated.
 
Ought Ex-Felons’ Voting Rights Be Restored?

Mirroring the controversy in Virginia, where Gov. Terry McAuliffe – the head of Hillary Clinton’s 2008 presidential campaign – sought to issue a blanket restoration of voting rights to ex-felons who had completed their sentences, candidate Trump called such proposals “crooked politics,” accusing Democrats of having political advantage as their real motive for seeking that change.
In contrast, the platform on which Hillary Clinton ran called not only for voting rights restoration, but also for “ban the box” legislation and a presidential executive order requiring federal contractors and employers not to screen out job applicants with criminal records.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

Obama’s Commutations Continue, But What About Pardons?

President Obama's term has seen a record-breaking number of commutations issued, but relatively few pardons.

President Obama's term has seen a record-breaking number of commutations issued, but relatively few pardons.

By Christopher Zoukis
 
With two more batches of sentence commutations granted in October, President Obama now holds a couple of records in that area.
 
By issuing commutations for 102 federal inmates on Oct. 6, followed by 98 more on Oct. 27, he set the record for commutations in a single year. His total for 2016 reached 688 – more in a single year than any other president. A few months earlier, on Aug. 3, he also claimed the all-time single-day record by issuing 214 commutations.
 
Thus far in his presidency, Obama has handed 872 federal inmates shorter sentences, second only to the 1,366 commutations total issued by Woodrow Wilson, mostly after World War I. Since the White House says the president will continue to issue meritorious commutations through the rest of his term, Wilson’s record could yet be broken.
 
But when it comes to another, broader form of clemency – issuing full presidential pardons – the administration has made far less of a mark. As of the first week of October, Obama had issued only 70 pardons since taking office. That’s well behind the pace for presidential pardons by his other two-term predecessors: Bill Clinton issued 396; Ronald Reagan granted 393; and George W. Bush handed out 189. In fact, as of this writing, Obama has granted the fewest presidential pardons of any two-term president since George Washington.
 
Commutations shorten sentences but do not affect post-release restrictions, such as parole or restrictions on the right to possess firearms. A significant number of the Obama-issued commutations have been conditioned on inmates enrolling in residential drug treatment before being released – which led one inmate to refuse to accept his commutation. Full pardons, on the other hand, bring full legal forgiveness, effectively wiping out record of a crime.
 
Several factors may help to explain Obama’s relative lack of attention to pardons. First, ever since the administration announced its new clemency initiative in mid-2014, commutations have virtually monopolized its clemency efforts. If you don’t count pardons handed to four Iranians as part of a prisoner exchange earlier this year (which go through a different process than pardons for federal inmates), Obama has only granted two pardons since December 2014.
 
The administration could argue it had no choice but to focus almost exclusively on commutations, since its clemency initiative, as well as retroactive changes in federal sentencing guidelines for some drug offenses, produced a huge wave of commutation applications — over 29,000, by official records. Another possible reason is that pardons may have become politically more suspect, due to historic situations like President Ford’s pardon of Richard Nixon, George H.W. Bush’s pardons of figures in the Iran-Contra scandal, and Bill Clinton’s issuing 140 pardons on his final day in office, including one to a fugitive financier whose former wife was a major contributor to the Democratic party.
 
The imbalance between sentence commutations and pardons may be about to end, however. Fielding a question on the disparity at an August news conference, Obama acknowledged his administration had “focused more on commutations than… pardons," but said that by the time he leaves office, he will have issued pardons “roughly in line” with the numbers granted by other presidents. 

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

Proposed Rules Could Ease Inmate Child-Support Payments

Child-support payments are often a problem for inmates, since they have virtually no income while incarcerated

Child-support payments are often a problem for inmates, since they have virtually no income while incarcerated

By Christopher Zoukis

Time is growing short for the Obama administration to act on rules it proposed almost two years ago to revamp federal rules on child support.

One significant part of the November 2014 proposal from the Office of Child Support Enforcement in the Department of Health and Human Services would redefine inmates’ child-support requirements. A White House official acknowledges a final redraft of the regulations has been under review there since July, and predicts it will be adopted before Obama leaves in January.

Child-support payments are often a problem for inmates, since they have virtually no income while incarcerated and may become deeply indebted for child support payments they cannot make. An administration study in 2010 showed nearly 29,000 of the 51,000 federal inmates subject to child-support orders were not keeping up with required payments, with an average shortfall almost $24,000.

When released, inmates may face sizeable debts for missed child support payments — usually with accumulating interest, fees and penalties — adding to their obstacles to re-entering society. Most states allow modification of child-support requirements for incarcerated parents, but more than a dozen won’t permit it.

Surely it makes sense to let newly released inmates concentrate on finding employment as a first step in rebuilding their lives. Having a sizable outstanding debt or even a civil judgment for non-payment of child support makes it far more difficult to find work. In some states, child-support debt nonpayment can even send an inmate back to prison or jail — the modern-day equivalent of long-ago debtors’ prisons.

Why hand taxpayers the tab for sending ex-offenders back behind bars, when they are ready to make a fresh start? Especially since doing so in no way helps a child-support system’s intended beneficiaries. And, under the Supreme Court’s 2011 Turner v. Rogers decision, when facing possible imprisonment for child-support nonpayment, even indigent defendants have no right to assistance by a court-appointed lawyer, making incarceration for unmet child-support requirements all the more likely.

The Obama administration’s draft child-support rule would require all states to let inmates modify child-support orders, and mandate that state courts base their orders on a prisoner's actual income.

It would also end the practice, currently found in the child-support programs of a dozen or so states, of equating incarceration with “voluntary unemployment." This applies when, for example, a parent refuses to work in order to reduce earnings the state uses in calculating the amount of child support the parent must pay. In such cases, the state is authorized to look at the parent’s available assets and lifestyle, assign a more realistic figure, and block the parent from seeking a reduction in required payments.

True, the administration’s broader child-support proposal has drawn opposition from some Capitol Hill Republicans, who have attacked it as another example of the administration trying to legislate by regulation, bypassing Congress. But even if there may be debatable issues with other sections of the wide-ranging proposal, shouldn’t everyone be able to agree that it does no good to impose unrealistic payment demands on inmates, much less treat them as voluntarily seeking refuge in prison in order to shirk child-support obligations?

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.

More Than 6 Million Blocked From November Vote Due to Criminal Records

criminal records will prevent both incarcerated and non-incarcerated people from voting on november 8th.

criminal records will prevent both incarcerated and non-incarcerated people from voting on november 8th.

By Christopher Zoukis

More than six million citizens will be handcuffed from voting this November.

After updating a study it did four years ago, The Sentencing Project released the estimated number of Americans that won’t be permitted to vote in this year’s elections due to their criminal records. Using new Census data on the voting age population, and adjusting for recent changes in state disenfranchisement laws, the study placed the number of disenfranchised ex-felons at 6.1 million.

The number of disenfranchised persons has climbed alongside the growth in incarceration totals. Forty years ago, an estimated 1.1 million people had lost their voting rights due to criminal convictions. Twenty years later, the total had risen to 3.3 million. In 2000, the number reached 4.7 million, rose to 5.4 million by 2004, and to 5.9 million by 2010, according to a study released in 2012 by some of the same authors of the most recent study.

Many will find it surprising that less than a quarter of these people — roughly 23% of those unable to vote due to criminal records — are currently incarcerated. The study indicated that 77% of the disenfranchised live among us in our nation’s communities. Those who have completed their sentences number nearly three million and make up 51% of the disenfranchised. Citizens on probation for felonies account for over 1.1 million — about 18% of the total. Over half a million, comprising about 8% of the total, are parolees.

State disenfranchisement rates for this year’s elections will vary substantially, largely due to differences in how broadly the state’s provisions apply. Fourteen states disenfranchise only those currently in prison, while four states also include those released on parole. Disenfranchisement laws in 18 more states also cover former inmates out on probation, and 12 states include former inmates who have completed their sentences, including parole or probation. Only Maine and Vermont currently let inmates vote in their elections, and thus have no disenfranchised voters.

Seven states disenfranchise less than half a percentage of their population, while the rates in the rates in six southern states hit over 7%. The new study notes that felony disenfranchisement laws “vary tremendously across racial and ethnic groups,” with more Hispanics and African-Americans affected. In some states — Kentucky, Tennessee, and Virginia — disenfranchisement rates for African Americans make up more than 20% of the voting age population, and that rate is 5% or higher in 23 states.

Despite the large and growing numbers of current or former inmates unable to vote, the trend in recent years has been to eliminate or reduce barriers to former prisoners’ voting. The best-known recent instance is Virginia governor Terry McAuliffe’s issuance of an executive order earlier this year, attempting to restore voting rights for all Virginians who had completed their sentences. However, after a court found that exceeded his legal powers, he issued separate orders restoring voting rights to nearly 13,000 individuals in August.

A number of states have begun processes to return voting rights to those with criminal records. In Alabama, legislators simplified the voting rights restoration process for those who had completed sentences for crimes not involving moral turpitude. California restored voting rights for convicted felons residing in jails (but not in prisons). Maryland lifted disenfranchisement for those on parole or probation. And Wyoming restored voting rights after five years for those who completed sentences for first-time, non-violent felonies.


Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.


 



 

Can Nationwide Prison Labor Strike Organizers Back Up Claims of Success?

Tough to get verifiable information on the extent of inmate involvement nationwide in September's prison labor strike. 

Tough to get verifiable information on the extent of inmate involvement nationwide in September's prison labor strike. 

By Christopher Zoukis

You may have heard about a recent event described by its backers as the “largest prison strike in history,” designed to confront the issue of forced prison labor.  A nationwide prisoners strike was scheduled to start on Friday, September 9th, the 45th anniversary of the uprising at the Attica Prison in western New York.
 
You can readily find uncritical claims that the alleged nationwide movement to refuse work assignments saw large numbers of inmates in 24 states participate. Estimates in some accounts range as high as 24,000 — about 1% of all inmates nationwide, or approaching 3% of the estimated 900,000 inmates working for pay. But what seems to be missing is any solid substantiation of claims about the size of the strike, much less its effectiveness.
 
For one thing, The Marshall Project puts the number of states where inmates participated in strike-related activities at 12, not 24. And lower figure could even be an exaggeration. Admittedly, it’s no easy task to track what actually happens inside a prison, if inmates have little or no ability to report their actions and responses by prison officials, or to communicate with the outside world. Some accounts of the alleged strike noted organizers used contraband cellphones.
 
But even by accounts emerging since September 9th, there’s scant evidence of widespread or sustained inmate participation. A look at some responses most publicized by the strike backers strengthens, rather than dispels, skepticism surrounding claims of a massive response to the national strike call. Take, for instance, reports from Alabama’s troubled Holman Correctional Facility, which strike backers identify as one of the most active institutions, with the Free Alabama Movement, a group of Holman inmates, their families and other backers, spearheading the movement. But even at this hotbed, backers could point to only 45 inmates who answered the call for a strike by staying in their cells rather than reporting to their job assignments — though backers later claimed credit for a reported walkout by nine correction officers there. But it's more likely that, rather than showing solidarity with striking workers, the guards were protesting their own working conditions in the notoriously violence-prone, understaffed facility.
 
At one correctional facility on Michigan’s Upper Peninsula, kitchen staff and some other inmate workers refused to report to work; demonstrations followed the next day, and fires and vandalism rendered two residential units unlivable. About 150 inmates regarded as ringleaders were transferred to other prisons. Florida also saw some demonstrations and destruction of dorms at a Panhandle prison. Corrections officials in several other states claimed by strike backers as active deny that any work refusals or stoppages happened.
 
The most outspoken backer of the event is the Incarcerated Workers Organizing Committee (IWOC), an arm of the International Workers of the World, a long-time international union with a taste for revolutionary rhetoric (from your high school American history textbook, you may recall the “Wobblies” of the IWW). IWOC’s manifesto exhorts inmates to refuse to work while incarcerated, or in its words, to “end slavery in America.” The union’s ultimate goal, apparently, is not to abolish prison labor, but instead to unionize inmates and to press collectively for higher pay and better working conditions, and to raise prison wages to discourage use of prison labor by making it less profitable.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com.

Federal Grand Jury Charges 80 in Maryland Prison Rackets

Indictments allege inmates used numerous methods to convince corrections officials to smuggle in contraband.

Indictments allege inmates used numerous methods to convince corrections officials to smuggle in contraband.

By Christopher Zoukis

It's an explosive story that reads like it came straight out of the script of one of the hottest prison-centered TV shows.

A pair of sweeping new federal indictments have resulted in charges for 80 people, including 18 corrections officials, 35 inmates and 27 outside facilitators, with being part of a major smuggling and racketeering conspiracy inside the Eastern Correctional Institution (ECI), in Westover, Maryland. With over 3,300 inmates, the medium-security men’s facility is Maryland’s largest state prison.

In an October 5 press conference, U.S. Attorney Rod J. Rosenstein outlined charges including smuggling of drugs and other contraband, bribery of corrections officials, and denial of civil rights—stemming from two separate instances this July when corrections officials allegedly got inmates to stab other inmates suspected of informing on their illegal activities.

The detailed indictments sketch a conspiracy in which inmates used money, and in some cases sexual favors, to persuade corrections officials to smuggle a wide variety of contraband into the prison, primarily drugs–including heroin, cocaine, ecstasy, oxycodone, marijuana, synthetic marijuana and Suboxone, a much-abused drug prescribed to treat heroin addiction–along with cellphones, pornographic DVDs, and tobacco.

Separate indictments were issued for each of ECI’s two four-unit compounds, and each indictment named nine different corrections officials for smuggling contraband into the prison by hiding it on their persons to evade security searches, or retrieving it from their cars during work breaks. Once the contraband was inside the prison, the corrections officials would distribute it to inmates in their cells, or deliver it to pre-selected stash locations.

Inmates with work assignments allowing them to travel outside their cells would retrieve dropped-off contraband, deliver it to customers, and arrange to pay corrections officials, either directly or with the aid of persons outside the prison.

The indictments also claim corrections officials warned inmates involved in the conspiracy when prison searches were scheduled so that contraband could be hidden. They also warned their confederates when an inmate was thought to be trying to inform prison authorities of the illegal activities. Four corrections officials and four inmates were named in two incidents of stabbings of suspected informers.

The indictments show the contraband trade was lucrative. For example, a thin strip of Suboxone retailing for $3 outside could fetch $50 inside ECI.  Smuggled cellphones were used for internal communications. The indictments contain excerpts of conversations on smuggled cellphones or prison communications systems. The normal rate for a correction official to smuggle in a package was $500, the indictments claim, with payments made in cash, money orders, or through PayPal, transacted inside prison directly by cellphone, or outside through assistants using mailboxes.

The conspiracy apparently came to light through a whistleblowing corrections official. Stephen Moyer, who took over as Secretary of the state’s Department of Public Safety and Correctional Services last year, said he put eight investigators to work on the case, and drew on assistance from the Federal Bureau of Investigation and other state and federal agencies.

Defendants could receive up to 20 years in prison for racketeering and for the drug smuggling conspiracy. Those involved in the stabbings of suspected informants could get up to another 10 years. While the alleged ECI conspiracy appears to be Maryland’s largest prison scandal to date, it is not an isolated incident. Contraband smuggling in Maryland corrections facilities prompted 44 federal indictments in 2014 and 24 in 2009.

 

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com.

Presidential Commission Criticizes Some Forensic Methods

Forensic investigations not always reliable.

Forensic investigations not always reliable.

By Christopher Zoukis

If you were to judge only by what’s shown on detective-procedural television shows like CSI, you might think forensic investigations and crime lab results are virtually infallible. But from time to time, a government study comes along to point out how that’s frequently far from the truth.

Take, for example, a groundbreaking study ordered by Congress and released in 2009 by the National Academy of Sciences’ National Research Council. It pointed out numerous shortcomings, including scant scientific validation, for many forms of forensic evidence other than DNA, and urged more research, better standards and greater credentials for crime labs.

Then in April last year, the Federal Bureau of Investigation issued a report admitting its analysis of microscopic hair analysis frequently overstated the scientific reliability of such tests. In fact, DNA evidence in some instances revealed crime labs wrongly identified the source of hair fibers found at crime scenes.

On September 20th, 2016, after a year-long review of research studies, the President’s Council of Advisors on Science and Technology (PCAST) issued a new report that was sharply critical of some forensic evidence methods commonly used in federal and state criminal courts.

The PCAST report, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, looked not only at the innate reliability of several types of forensic evidence — including analyzing bite marks, identifying firearms, microscopic hair analysis, footwear and tire-tread analysis — but also how the reliability of even better-validated types of evidence, such as DNA and latent fingerprints, are presented in criminal prosecutions.

The new study found quite a few potentially serious problems, both in the weakness or absence of proof of the scientific validity of some types of forensic evidence — notably bite marks —especially “feature-comparison” attempts to differentiate between the particular source of a particular sample. Even for more reliably established types of evidence analysis, the report cautioned, experts may exaggerate their value by claiming greater-than-provable confidence in such findings.

The PCAST report also recommended specific actions that federal agencies — such as Commerce’s National Institute of Standards and Technology, the White’s House’s Office of Science and Technology Policy, and the FBI Laboratory — could take to bring greater scientific certainty to forensic testing, as well as steps the Justice Department and federal courts could take to improve courtroom use of forensic test results.

Perhaps predictably, the PCAST report drew mixed responses. Some noted jurists associated with the project, such as federal appellate judges Alex Kozinski and Harry Edwards, wrote op-eds praising the report, but the reaction was quite different from prosecutors’ and crime labs’ groups. The National District Attorneys Association, for example, shot off a press release calling the PCAST report “scientifically irresponsible” and attacking the panel’s members as unqualified to pass judgment on the issues they addressed.

The FBI also dissented, saying it takes issue with “many of the scientific assertions and conclusions” in the PCAST report, and the Justice Department has advised federal and state prosecutors that it planned to send them materials to use to counter claims in the report in case they are raised by litigants.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com

Scholarly Study Looks at Prison Popularity of Ramen Noodles

By Christopher Zoukis

Recent research from the University of Arizona examines why ramen, the tightly curled instant noodles accompanied by a small package of tangy, high-sodium flavorings that has long been a staple of hungry college students, has become so popular in U.S. prisons.

The study, done by Michael Gibson-Light, a doctoral candidate in sociology, finds the most important reasons have little or nothing to do with the most commonly noted advantages of ramen – its relatively high caloric value, delicious flavor, cheap price, durability, or ease to prepare – but instead with chronic underfunding of food services at private-run prisons and ramen’s usefulness as a form of underground currency.

The study was done for Gibson-Light’s doctoral dissertation, which will explore the form and function of inmate labor in institutions of incarceration. As part of that broader topic, the sociologist – who identifies his main professional interests as the sociology of work, occupations, and culture, and critical criminology -- has been looking into shifts in monetary practices in inmates’ informal economies.

For his research, Gibson-Light spent a year interviewing almost 60 inmates and correctional staff in a males-only prison in an unnamed Sunbelt state, and also observed inmates during their work assignments. The sociologist presented his paper on ramen’s prison popularity at the American Sociological Association’s annual meeting in late August in Seattle.

According to a release from the ASA, Gibson-Light’s research shows that ramen is replacing cigarettes as the leading form of underground currency, and not just due to prison systems’ growing restrictions or bans on tobacco products. (Even where tobacco remains freely available, ramen is gaining on it, and on other forms of informal currency, such as stamps and envelopes.)

Instead, the researcher attributes inmates’ increasing demand for ramen to private prisons’ cost-cutting on meals; as a result of lesser amounts and lower-quality meals, inmates increasingly turn to commissary supplies of ramen, or “soup” as it is known in prison lingo.

Due to what he terms "punitive frugality," by which Gibson-Light means a trend towards tighter food budgets and prison operators’ belief that inmates can assume some of the cost and burden of obtaining their meals, inmates’ practices are changing in response.

An example he observed in the prison he studied was a change made about 10 years ago in the food preparation service at the prison. As a cost-cutting measure, the new service offered two hot meals and a cold lunch on weekdays instead of the three hot meals the former service provided, and on weekends provided just two hot meals. Gibson-Light’s report also noted corrections spending has since 1982 failed to grow as fast as prison populations.

As a result, inmates valued food more, and found ramen a convenient method of exchange and way to store value. Even though ramen at the prison commissary Gibson-Light studied was sold for about twice its price at many other facilities (59 cents per package, compared with 25 to 30 cents in many other places), its value grew even faster than did most other available commodities. He found inmates using gambling with ramen packages used as poker chips, exchanging $11 sweatshirts for two ramen packs, or providing daily bunk cleaning service for one ramen pack per week.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com

With 111 More, Presidential Commutations Set New Record

By Chris Zoukis

President Obama’s campaign to provide commutations of sentences of federal prisoners continues, with his fifth batch this year, and the second for the month, issued August 30. The most recent group of 111 commutations raised the president’s total to 673 during his time in office, with 325 coming just this August. That monthly total established President Obama as having issued more sentences commutations in a single month that any previous president has in a single year. 

Source: White House Blog

Source: White House Blog

White House news releases point out that the 325 commutations issued by the president this August exceed the annual commutations granted by any of his predecessors, and his 673 commutations to date surpass the total for the ten previous presidents combined. The most recent group of commutations included 35 federal inmates serving life sentences, keeping life sentences commuted by President Obama to roughly a third of the total (214 of 673).
At the end of August, the Obama administration had received nearly 27,000 commutation requests, granted 673, denied about 11,000 and had about 12,300 still pending. According to USA Today, the White House without publicity rejected 2,227 commutation applications on August 8.

Deputy Attorney General Sally Yates predicts the backlog will be cleared before the Obama administration ends in January.  At that rate, sentence commutations under Obama could exceed the 773 issued by Calvin Coolidge, or even the all-time record of 1,366 set by Woodrow Wilson.

Though civil liberties and criminal justice reform advocates hailed the mounting numbers of presidential commutations, the administration’s actions drew critical fire from some quarters. Some law enforcement groups, such as the National Association of Assistant U.S. Attorneys. Its president, Steve Cook, charged the most recent commutations show the president is not holding to the announced standards for his clemency initiative.

Cook charged that, despite promises the Obama administration’s clemency initiative would focus on non-violent, low-level offenders, the recent commutations have included one inmate headed Miami operations for a drug trafficking ring that imported 9,000 kilograms of cocaine into the U.S., six others who had been convicted as drug kingpins, and another who was convicted of owning a sawed-off shotgun. He described the trend of actions under the clemency program as getting “worse and worse.”

The Clemency Initiative 2014 announced by the Department of Justice in April of that year invited clemency petitions from federal inmates Volunteers from five non-profit groups and practicing lawyers were recruited to help prepare and screen clemency applications for the program.

As announced, the program set detailed eligibility standards: to be considered for sentence commutations, inmates would have to have already served at least 10 years in federal prison; been charged with relatively low-level and non-violent offenses, with no previous serious convictions or ties to gangs or drug cartels; received a sentence which subsequent law changes would have made substantially less stringent, and shown good conduct while incarcerated. 

Some Capitol Hill Republicans, including even some who have called for criminal sentencing reform, have also faulted the administration’s clemency actions as further evidence of the president’s penchant for bypassing Congress.

NY Times Highlights Dangers of Private Prison Vans

By Christopher Zoukis

A front-page New York Times story headlined “On Private Prisoner Vans, Long Road of Neglect” examined the little-known for-profit firms providing interstate transport in large vans for persons being extradited to face out-of-state court hearings or shuttled to distant prisons.

The companies give law enforcement agencies an alternative to assigning their own deputies to handle extradition of fugitives or suspects, but the business faces growing claims its providers are ill-trained, poorly equipped or otherwise unsuited to providing efficient or even safe service.

Steven Galack

Steven Galack

The July 6 Times article, jointly prepared by a reporter for the newspaper and a staff writer for The Marshall Project, a non-profit newsgroup on criminal justice, recounts deaths and serious injuries suffered by private extradition service passengers. It began with Steven Galack, a 46-year-old Florida man who in July 2012 was arrested on an out-of-state child-support warrant and ordered to appear at a hearing in an Ohio county over a thousand miles away.

The county ordered Prisoner Transportation Services of America, the nation’s largest private extradition service, to send a van to pick Galack up at the Florida jail where he was being held. Like the 10 other persons already in the van, he was handcuffed and put in ankle and waist shackles on a seat inside a cage in the back of the van. No toilets or beds are provided; uniformed guards ride in the driver’s compartment, take turns driving and usually stop overnight only if they can find a local jail willing to put their passengers up.

To maximize revenue (law enforcement clients pay $0.75 to $1.50 per passenger mile), the company’s routes are not direct, but include numerous pick-ups and drop-offs along the way (the log for Galack’s van’s showed 41 stops along its Ohio to Florida round-trip). The van’s air conditioning failed in 90-degree temperatures, and Galack soon began acting oddly, complaining of pain, and making so much noise the other passengers could not sleep while chained in their seats for the first two nights of the northbound trip.

The third day, two prisoners later testified, a guard suggested passengers beat Galack into silence. After reaching Tennessee an hour or so later, guards discovered Galack had died. Local authorities did not act, saying any crime had likely been committed in Georgia; state police there only briefly investigated the death (whose cause was never determined), and let the van continue.

The Times article noted at least three other passenger deaths since Galack’s, two from perforated ulcers for which no medical help was provided, and another from withdrawal from medication. It also detailed other harm befalling prison van passengers, including a diabetic who needed a double-leg amputation after several days on the road in a private prison van. Further, crashes have killed at least a dozen passengers and guards, and over a dozen female passengers have charged they were sexually assaulted during van trips. About 60 passengers also escaped during van trips.

The Marshall Project, which interviewed dozens of former private van guards, added most receive only an hour or so of training and no medical preparation beyond CPR. The article also reported the guards say they’ve seen little sign of Justice or Transportation Department oversight of regulations for interstate van passenger service.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com

Does the Eighth Amendment Require Air-Conditioned Prisons?

By Christopher Zoukis

As summer temperatures rise beyond uncomfortable to approach dangerous, state prisons and local jails increasingly face court challenges which claim failure to protect inmates against temperature extremes amounts to “cruel and unusual” punishment in violation of the Eighth Amendment.

In Texas, state prisons are facing numerous lawsuits, including a large federal class-action case, filed in 2014 for over 1,400 inmates – primarily disabled older inmates at the Wallace Pack Unit near Houston. Civil rights lawyers bringing the case also allege drinking water has since 2006 contained unsafe levels of arsenic, and claim overheating has killed at least 20 state inmates since 1998.

After earlier finding the state had been “deliberately indifferent” to health risks the “extreme heat” posed for the inmates and ordering increased monitoring, the presiding judge this June issued a preliminary injunction ordering the state to fix the water. Texas corrections officials have appealed the ruling; they estimate air conditioning would cost over $22 million to install at the Wallace Pack Unit, plus about $478,000 in annual operating costs, arguing for simpler, cheaper steps to lower cellblock temperatures.

Ironically, although state rules prescribe air temperature standards (between 65° F and 85° F) for local jails, state prisons are not subject to those limits. Currently, of the 109 Texas corrections facilities, air conditioning is available only for 19 medical units and about a dozen lockups for special-needs inmates.

Inmate litigation on extreme heat levels has also focused on the Louisiana State Penitentiary at Angola, the nations largest maximum security prison. In June 2013, a non-profit legal group representing three Death Row inmates went to federal court to sue the state Department of Public Safety and Corrections, its top executive, and the wardens for both Angola and its Death Row.

The lawsuit claimed failure by the agency and officials to provide inmates adequate relief from extreme heat creates a substantial risk of serious harm to their safety and health, and so violates their constitutional protections against cruel and unusual punishment under the Eighth Amendment, as well as due-process rights under the Fourteenth Amendment.

Because the plaintiff inmates have hypertension and other ailments, including hepatitis, depression or diabetes, often aggravated by extreme heat, the lawsuit also cited the Americans With Disabilities Act (ADA), which requires public facilities to make reasonable accommodations for persons with disabilities, and the Rehabilitation Act, which imposes similar requirements on facilities built with federal funding assistance.

The lawsuit drew on government records for the “heat index,” which combines temperature and humidity, noting that figure for the Angola Death Row exceeded 126 degrees for more than 80 days during the previous summer. It asked the court to rule to order the state agency and Angola officials to ensure the heat index in all Death Row cells doesnt exceed 88° F.

Six months after the lawsuit was filed, the judge ordered air conditioning for Angolas Death Row; the state appealed the decision, and the parties continue arguing about specific relief measures. Besides the high cost of retrofitting facilities with air conditioning, plus operating costs, another complicating factor is the potential political fallout against officials who might be seen as too lenient or lavish in spending on inmates convicted of serious crimes.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com

 

Study Sheds Light on Disabled Persons Caught in Criminal Justice System

By Christopher Zoukis

A recent study issued by the non-profit Center for American Progress examined how Americans with disabilities have fared under the nation’s criminal justice system. Not surprisingly, the results speak to the failings of our penal system.

At its outset, the study, Disabled Behind Bars: The Mass Incarceration of People with Disabilities in America’s Jails and Prisons, finds persons with disabilities “dramatically over represented” behind bars. Citing data from the Bureau of Justice Statistics, it notes persons in local jails are four times more likely than non-incarcerated persons to report having a disability, while inmates of federal and state prisons are three times more likely to do so.

Overall, according to data from the Bureau of Justice Statistics for the years 2011-2012, by about a 40% to 32% margin, jail inmates are more likely than prison inmates to have one or more disabilities affecting their sight, hearing, mental, walking, self-care or independent living capabilities. That holds true for both male inmates (38.5% among those in jails, versus 31% in prisons) and female inmates (49.5% in jails, compared to 39.5% in prisons).

Mental health conditions afflict a large number of those incarcerated in the nation’s prisons and jails: Bureau of Justice Statistics show that at least one out of every five inmates has a serious mental illness. Such frequently reported cognitive disabilities as learning disorders, autism, dementia, Down’s syndrome and other intellectual problems affect prison inmates at four times the rate they are found in the general populace, and jail inmates exhibit them at six times the rate they are as likely as do individuals in the general population.

Not coincidentally, the rise in incarcerated populations came during the strong trend over more than half a century to deinstitutionalizing persons formerly treated in state mental hospitals and similar facilities. For example, those facilities treated almost 560,000 in the year 1955, but the total had fallen to around 70,000 by 1994.

Since community-based alternative treatments for patients with mental health disorders did not significantly increase as patients were being deinstitutionalized, persons with mental disabilities became increasingly likely to be caught up by the criminal justice system, frequently for trivial offenses. As a result, three times as many persons with mental health disabilities are now found in prisons and jails than in state mental facilities.

The detailed new study, released in mid-July, notes the significantly greater cost of treating such conditions in prison or jail setting rather than in mental health facilities. For example, the annual cost for treating an inmate with a serious mental health condition averages over $48,500, while it costs only about 40% as much to provide treatment in a community setting, even with the cost of providing supportive housing added to the total.

In 2013, the Vera Institute of Justice, after reviewing a wide range of research on the subject, concluded it could cost two to three times as much to care for an incarcerated inmate with a serious mental disability than to provide treatment in a community setting.

Beyond the disproportionate expense, dealing with disabilities in incarceration raises other problems. Quality of care is often problematic, and jails and prisons treatment facilities may also run afoul of the American With Disabilities Act’s mandate, as recognized by the Supreme Court’s 1999 Olmstead v. L.C. decision, to integrate inmates with disabilities.

 

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com

President Obama’s Commutation Pen Stays Busy

By Christopher Zoukis

Neil Eggleston

Neil Eggleston

Last week, President Obama issued his fourth batch this year of commutation orders for federal prisoners last week, releasing or reducing sentences for another 214 inmates. This booststotal commutations since he took office to 562.

The White House also announced on Aug. 3 that Obama’s commutations now exceed the combined total for his nine most recent Oval Office predecessors (John F. Kennedy through George W. Bush).

A blog entry by White House counsel to the president Neil Eggleston noted the August commutations represented the largest action of its type in a single day since at least the year 1900, and included 67 inmates serving life sentences (bringing that total to 179).

As Eggleston also observed, since the Clemency Initiative grants require individual review by the Department of Justice and the President, they may provide individualized relief or contain personalized conditions. So, some commutation grants will free inmates in the months ahead, while others will not bring release, but instead reduce sentences by years, and others are conditioned on the inmate seeking drug rehab treatment.

Eggleston’s commentary also notes he expects President Obama in his remaining months in office will continue issuing clemency grants “in a historic and inspiring fashion.” Some clemency advocates have urged the president to adopt even broader measures, such as granting blanket rather than individualized relief to categories of inmates, such as those convicted before a change in sentencing law for crack cocaine offenses reduced prison terms for those convicted in 1990 or later, without retroactively reducing sentences of those convicted earlier.

The White House counsel’s blog entry also renewed the administration’s call for Congress to clear a criminal justice reform law for the president to sign, since legislative change is needed to achieve fundamental change in criminal penalties. Even if legislators decide to turn to that topic after the end of their summer recess, Congress’ need to concentrate on finishing work on government funding measures, the short pre-election legislative calendar, and significant disagreements over numerous provisions year are likely to dim hopes for major action on criminal justice reform this year.

Some optimists hope that it might be dealt with during a post-election lame-duck session, but this scenario seems to have at best a remote chance.

Over two years ago, the administration announced a clemency initiative designed to provide relief for federal prisoners serving lengthy sentences for non-violent crimes, particularly those for which sentences were reduced after those prisoners were sentenced. 

The Department of Justice officially launched Clemency Initiative 2014 on April 23 of that year, with the assistance of volunteers from law firms and five non-profit groups, inviting clemency petitions from inmates meeting the program’s exacting eligibility standards: at least 10 years already served, a sentence which subsequent law changes would likely mean significantly shorter time today, good conduct while incarcerated, low-level and non-violent offenses, and no previous serious convictions or ties to gangs or drug cartels.

The Department of Justice has not announced precisely how many clemency petitions it received by the October 19, 2015 deadline for submissions, but by this June, it had taken in at least 34,000, had rejected about 25,000 and was still working on about 10,000.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com

CDC Issues Report Card on Prison and Jail Health Services

By Christopher Zoukis

 

Just last week, the Centers for Disease Prevention and Control (CDC) released National Survey of Prison Health Care: Selected Findings, the agency’s first-ever survey of healthcare services provided inmates in most of the nation’s prisons and jails.

Prepared by three public health professionals at CDC’s National Center for Health Statistics and a staffer at the Bureau of Justice Statistics, the NSPHC survey released July 28 represents CDC’s first attempt to compile data on what services are provided for inmates, and delivery methods.

Specific areas of inquiry included what testing is performed on newly-admitted inmates for infectious diseases, cardiovascular risks, and mental health conditions, as well as whether care is furnished on-site, off-site or through telemedicine. The survey started in 2012, seeking data for 2011. Researchers sought interviews with state corrections officials and in some cases sent advance along outlines detailing the topics to be discussed.

Although the researchers contacted every state corrections department, and 45 participated in the NSPHC survey (though the report did note that participation levels varied by state and inquiry topic. Non-participating states were Alaska, Massachusetts, Mississippi, Tennessee, and West Virginia.

Here are some highlights from the NSPHC survey, released July 28:

Health Challenges:  It’s well-known that prison and jail inmates have higher rates of chronic medical problems, infectious diseases and mental illness than the non-incarcerated population. Less recognized is the aging of inmate populations: the number of prisoners 55 years old or older in 1981 was under 9,000; by 2013, there were 144,500 prisoners aged 55-and-up, with predictions the total may reach 400,000 by 2030.

Screening: Every one of the 45 responding states said it screens prisoners for tuberculosis, mental health conditions, and suicide risk. Other commonly, but not invariably, tested conditions for which state prisons and local jails provide screening include: high blood pressure (44 states), hepatitis C (36 states), hepatitis B (32 states), hepatitis A (30 states), and traumatic brain injury (23 states).

Delivery Methods: All but one participating state delivers outpatient mental health care exclusively on-site. Inpatient mental health care is delivered only on-site in 27 states, and only off-site in three states. For inpatient medical care, 38 states provide it both on-site and off-site, while four are exclusively off-site and two exclusively on-site. The survey also compiled data on how states deliver emergency, chronic, long-term nursing and/or hospice, and varieties of specialty health care services.

Interestingly, without any useful explanation, the report also notes that the Bureau of Prisons did not participate in the survey, despite researchers’ interview requests. It could have been, I suppose, that no one at the agency had any time, during the year or so the researchers were conducting their rounds of interviews, to share its insights and data (although research seem to have filled in some basic information from the agency’s earlier statistical reports).

But a more likely explanation for this official silence, perhaps, lies in BOP officials’ well-known modesty. After all, it might be embarrassing, to the sensitive federal prison bureaucrat, to be seen as bragging about how well things have been going.

 

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com

Senator Offers Bill to Deny Private Prisons REIT Status

By Christopher Zoukis

Sen. Ron Wyden

Sen. Ron Wyden

The ranking Democratic on the Senates tax-writing Finance Committee has introduced a bill (S. 3247) to exclude private prison companies from the significant tax breaks available to Real Estate Investment Trusts (REITs).

On July 14, Sen. Ron Wyden (D-OR) offered the “Ending Tax Breaks for Private Prisons Act,’’ which would bar companies operating prisons from being eligible for REIT status.

In a brief statement, Sen. Wyden blamed what he called the nations “broken-down tax code” for allowing for-profit prison companies to take advantage of the highly favorable tax treatment accorded REITs.

Created 50 years ago to encourage investments in real estate, REITs have often been compared to mutual funds, since they offer a way to invest in a broad portfolio of assets -- i.e., the properties a REIT owns or finances, just as a owning shares in a mutual fund lets an investor profit from the stocks or bonds the fund owns -- without having to buy those underlying assets.

By law, a REIT is required to pay its investors at least 90% of its taxable income each year, in the form of cash stock dividends, The REIT can deduct those dividends from its taxable income; as a result, those earnings escape being taxed at the corporate level. 

The two largest companies in the private prison industry are the Corrections Corporation of America and the GEO Group, which together account for about 75% of that industry. In 2013, those companies reorganized to operate as REITs, based on their substantial real estate in prisons, jails and immigration detention centers.

In reorganizing, the two companies also persuaded the Internal Revenue Service to let them spin off as new subsidiaries also eligible for REIT status they had set as subsidiaries separate from ownership of prison real estate. These subsidiaries provided company properties with services such as prison management and providing supplies.

This had the advantage of generating income for the parent company REITs that also escaped taxation at the corporation level. Last year, the two main private-prison companies recorded a combined total of more than $3.6 billion, but as a result of being able to take advantage of REIT status, reduced their tax liability by a combined total of about $113 million.

Wydens bill would reclassify as non-deductible corporate profits income which is currently tax-deductible as REIT dividends to their shareholders. MoveOn.org started a drive earlier this year to gather signatures for a petition opposing REIT status for companies managing private prisons.

In offering his bill, Sen. Wyden made clear he views stripping REIT eligibility from private prisons to be part of broader revisions needed to the U.S. criminal justice system. Other opponents of private prisons have begun campaigns against them on other issues besides their eligibility for REIT status. 

Enlace, a Portland, Oregon-based group that identifies its focus as issue of racial and economic justice, has for five years waged a Private Prison Divestment Campaign to persuade pension funds and other large investors to sell any shares they hold in private-prison companies. It has scored success with the University of California and Columbia University pensions, and hopes that Portland this fall will become the first city government to join its effort.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com

BOP Makes Little Use of Expanded Compassionate Release

By Christopher Zoukis

Three years ago exactly, the Bureau of Prisons (BOP) adopted regulations revising and expanding its often-criticized compassionate release program, under which federal inmates’ sentences can be reduced.

But the program still has a small impact even among eligible inmates, a group that can be expected to grow as the average age of prisoners climbs (last year, the elderly made up 26% of inmates at federal minimum-security prisons and 23% at low-security ones).

Also known at BOP as the RIS (“reduction in sentence”) program, compassionate release was part of the 1984 comprehensive crime law, and authorized federal courts to reduce an inmate’s sentence when the BOP finds “extraordinary and compelling” circumstances justify such action (both the statute and BOP regulations left undefined precisely what constitutes “extraordinary and compelling” circumstances).

A federal judge’s ability to reduce a federal inmate’s sentence for such reasons depends on BOP recommending a reduced sentence, and inmates cannot petition a court for compassionate release (they can however ask the BOP to make the request). The compassionate release decision is entirely left to BOP, though it considers whether releasing the inmate would pose a threat to others, takes into account policies of the U.S. Sentencing Commission, notifies victims, and consults with federal prosecutors in making individual decisions.

So how has compassionate release worked in practice? From the outset, it’s been practically invisible. Even many prisoners of advanced age, with no record of violence, facing serious health challenges federal facilities may not be able to meet, have been left to die in jail, rather than recommended for compassionate relief.

The rarely-used program has been lambasted by clemency advocate and the general press, and even by the inspector general (IG) at the Department of Justice. In a 2013 report, IG Michael Horowitz found, out of a federal prison population well over 200,000 inmates, on average only two dozen inmates a year were released through the compassionate relief program.

The report and subsequent reports noted a well-managed compassionate release program would save BOP money and help deal with overcrowding, but said BOP’s compassionate release program had been managed poorly and inconsistently, without clear standards (for example, BOP’s program summary said non-medical reasons could be a basis for compassionate release, but the IG could not find BOP taking such action even once during a six-year period).

BOP soon adopted new regulations broadening eligibility for the program, reducing the threshold age to 65 from 70, and cutting the required time to have already been served from 30 years to the lower of 10 years or 75% of the inmate’s sentence. The new regulations also broadened the grounds for compassionate release to include the inmate’s family circumstances, such as the death or incapacity of a caregiver for the inmate’s child, or the incapacity of the inmate’s spouse or registered domestic partner.

But the agency seems to have altered its practices very little. A follow-up report from the DOJ IG two years after BOP expanded the program found only two inmates had been released due to the changes. The compassionate release pace has picked up recently, as nearly 200 inmates got compassionate release in the past fiscal year, compared with 80 the previous year, and 61 and 39 in the previous years.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com

State Prisons Have High Rates of Minority Prisoners, study affirms

By Christopher Zoukis

The Sentencing Project, a Washington-based non-profit group, on June 14 released a landmark study of the racial and ethnic characteristics of inmates in state prisons, which found African-Americans are on average incarcerated at a rate more than five times higher (5.1, to be precise) than the rate for whites.

The study compared Census state population data with results from the U.S. Bureau of Justice Statistics’ National Prisoners Series survey, which annually compiles data on state prison populations; it used data from the 2014 survey. It then calculated each state’s average rate of incarceration for whites, blacks and Hispanics, per 100,000 of population.

Census data shows the nation’s general population is 62% white, 17% Hispanic, and 13% black. According to the Justice survey, state prison population overall is 38% black, 35% white, and 21% Hispanic. While African-Americans do not constitute a majority of the overall population in any state, in 12 states they comprise a majority of state prison inmates.

Eight of those states are below the Mason-Dixon line (Alabama, both Carolinas, Georgia, Louisiana, Maryland, Mississippi, and Virginia); the others where black inmates make up especially high percentages of state prison populations are Delaware, Illinois, Michigan, and New Jersey.

The study found blacks have an overall state prison incarceration rate of 1,408 per 100,000, compared with 378 for Hispanics and 275 for whites. But racial disparities vary widely from state to state. New Jersey state prisons have the nation’s most disproportionate ratio of black male inmates to white male inmates, with 12.2 times as many black prisoners as white prisoners.

Incarceration affects at least 5% of black males in 11 states. The overall average for state incarceration of black adult males is 1 in 26. In eleven states, at least 1 in 20 adult black males is in prison.

The state with the largest disparity for incarceration rates between blacks and whites is Oklahoma, which has the highest incarceration rates per 100,000 for both whites (580) and for blacks (2,625).

States where 10% or more of the black adult male population are incarcerated include Iowa, Minnesota, New Jersey, Vermont, and Wisconsin. Even the states which incarcerate the lowest overrepresentation of black males in their state prison populations (Hawaii’s 2.4 to 1 is the lowest), black prisoners are incarcerated at more than double the rate for white prisoners.

Hispanics also appear at an overall 1.4 times higher rate in state prisons than do whites, with have particularly high incarceration rates relative to whites in northeastern states such as Massachusetts (4.3 times higher), Connecticut (3.9 times), Pennsylvania (3.3 times), and New York (3.1 times). Latinos make up 61% of the state prison population in New Mexico, 42% in California and Arizona, and 20% or more in seven other states (Colorado, Connecticut, Massachusetts, Nevada, New York, Nevada, and Texas).

The report, The Color of Justice: Racial and Ethnic Disparity in State Prisons, identifies three main factors that may contribute to the racial and ethnic imbalances in the state prison populations: criminal justice policies and practices (such as three-strike laws or heavy penalties for drug-related offenses), structural disadvantages affecting minority groups (such as poverty and unemployment rates, and housing and education deficits), or disparate treatment in arrests, prosecutions or sentencing.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com