The Faculty Lounge

Michael Mushlin on Aging Prison Population

My colleague Michael Mushlin (shown at right) is one of the authors of The Rights of Prisoners, a multi-volume treatise.  He shared with me these thoughts on a recent report from Human Rights Watch.  I reprint Michael's comments with his permission:

We often think of prisons as places filled to the brim with young aggressive men.  However, according to a report issued yesterday by Human Rights Watch entitled Old Behind Bars: The Aging Prison Population in the United States the reality is that many prisoners today are more in need of old age homes than they are of prison cells.  The report found that the number of sentenced state and federal prisoners age 65 or older grew at 94 times the rate of the overall prison population between 2007 and 2010. The number of sentenced prisoners age 55 or older grew at six times the rate of the overall prison population between 1995 and 2010.  The reason for this upsurge in the number of elderly prisoners is sentencing laws in the United States.  Currently over 10% of the prison population are serving life sentences and another 11% have sentences of greater than 20 years.

Prisons are not designed as geriatric centers. Thus, for the growing number of older prisoners, many of whom are frail, with myriad of problems associated with old age, prison confinement without adequate attention to their needs becomes harsh and punitive.  The report makes three recommendations. The first is that sentencing and release policies be modified to allow for release of prisoners whose condition no longer justifies incarceration. Second that plans be developed for housing, medical care, and programs for this population of older prisoners. And finally that prison rules that make no sense for older inmates be reformed. The report, which is important and timely, is found here.

 

Do District Attorneys Campaign in the Courtroom?

Some thoughts here.

Deinstitutionalizing the Prisons

Our ever-growing number of convicted felons in prison is a continuing problem in criminal justice, particularly so in this time of fiscal austerity.  We've seen states like California have their prison system taken over by the federal government; seen counties (like Maricopa County, Arizona) go to extremes to cut costs (such as housing prisoners in tent cities, feeding them on less than $2 a day);  seen reintegration services for released prisoners cut to bare bones or nothing.   No band-aid solutions seem to be working.

So it was with great interest that I read Bernard Harcourt's latest article, entitled:

REDUCING MASS INCARCERATION: LESSONS FROM THE DEINSTITUTIONALIZATION OF MENTAL HOSPITALS IN THE 1960S

In 1963, President Kennedy outlined a federal program designed to reduce by half the number of persons in custody in mental hospitals. What followed was the biggest deinstitutionalization this country has ever seen. The historical record is complex and the contributing factors are several, but one simple fact remains: This country has deinstitutionalized before. As we think about reducing mass incarceration today, it may be useful to recall some lessons from the past. After tracing the historical background, this essay explores three potential avenues to reduce mass incarceration: First, improving mental health treatment to inmates and exploring the increased use of medication, on a voluntary basis, as an alternative to incarceration; in a similar vein, increasing the use of GPS monitoring and other biometric monitoring, and moving toward the legalization of lesser controlled substances. Second, encouraging federal leadership to create funding incentives for diversionary programs that would give states a financial motive to move prisoners out of the penitentiary and into community-based programs. Third, encouraging impact litigation of prison overcrowding, as well as documentaries of prison life, as a way to influence the public perception of prisoners. With regard to each of these strategies, however, it is crucial to avoid the further racialization of the prison population and merely transferring prisoners to equally problematic institutions.

Whether you agree with his conclusions or not, it's a fascinating piece.

Culture Clashes: Books and Movies

Over the last week, I've enjoyed (for want of a more appropriate word) a book and a movie both of which have somewhat similar themes although each is very different.  The book (with thanks to Steven Lubet for recommending it) was Chloe Hooper's The Tall Man which dealt with the first criminal prosecution in Australia of a policeman for an aboriginal death in custody.  It's hard to believe that such a prosecution didn't occur until a few years ago.  And the detail with which the author investigates the Queensland police culture and the aboriginal indigenous culture is really quite impressive.  She obviously had more access to the Palm Island inhabitants and their legal representatives, but she did her best with what she had with respect to other groups involved in the story including police groups and politicians.  She raises lots of inter-racial issues for which there are no easy answers, but the book certainly makes you think. 

I also watched a movie from 2007 which I hadn't heard of before - actually, I think it might have been a Netflix recommendation.  It's called The Visitor and it stars  Richard Jenkins.  The film deals with an unlikely friendship that develops between a dispirited old college professor and a young couple of illegal immigrants who end up living in his New York apartment.  It deals with themes of racial differences, particularly between Arabs and Americans post-9/11 in the immigration context.  It also deals to a small extent with the relationship between the boyfriend and girlfriend in the illegal couple as the woman is from Senegal and the man is from Syria.  The writing, directing and acting are very subtle and understated, but it is still an engaging film that makes you think about immigration, cultural differences, and to some extent what our goals are/should be both personally and on a larger scale.  I really wasn't expecting to enjoy the movie so much, but I would recommend it - again, hardly light holiday viewing, but maybe sometime in the new year...

The Skilling Saga

Those who continue to follow Jeff Skilling's path down the appellate road may find interesting this story from the local newspaper.  A panel of the Fifth Circuit will hear oral arguments in his case today in Houston (interesting court announcement here).  I tried to find the panel composition, with no luck.  A digital recording of the arguments may be available later today (click here if interested).

Judge Sharon Keller: The Story Continues (but perhaps now concludes)

Continuing the story that we have been posting on for some time (most recently this post from July 17, 2010):   a judicial panel has ruled that the State Commission on Judicial Conduct did not have the authority to issue a "public warning" against Texas Court of Criminal Appeals Judge Sharon Keller.

Story here and here.

New Jersey Privacy/Hate Crime Prosecutions

I've been recently following the case of the Rutgers student who committed suicide last week after videos showing him engaging in a homosexual encounter were posted on the Internet by his roommate and another student.  Of course, the case raises many issues about cyberbullying and invasions of privacy.  But what particularly interests me - and others may be able to illuminate the law on this - is that New Jersey appears to have very strong privacy laws and hate crime laws which enable state prosecution based on both the invasion of the student's privacy and the fact that the conduct may have been motivated by animus against homosexuals.  According to the MSNBC coverage, the hate crime laws come into play at the time of sentencing, rather than as a separate cause of action, to raise the penalty for the criminal conduct under the privacy laws.  This would seem to make the laws easier to enforce than in some other states (and at the federal level) where many hate crime laws require proof of an intent by the perpetrator to cause harm to the victim.  I'm also under the impression than many existing harassment and bullying laws also require a credible threat of immediate harm to the victim.  Thus, New Jersey's approach seems to be particularly stong in comparison.  Does anyone know anything about the history of the New Jersey criminal laws on privacy and hate crime and why they seem to be different to the laws in many other states, assuming I'm correct about that?

Criminal Justice System Readings

For those who might be looking for books to assign to new law students interested in getting some accessible background perspectives on the criminal justice system, I would recommend two recent publications of the New Press.

The first is Let's Get Free by Paul Butler.  Butler is a prof at GW Law and has previously been a federal prosecutor.  He provides interesting perspectives on the criminal justice system both from the point of view of a federal prosecutor and as an African-American.  The book is short and accessible and can easily be read in a day - it's actually kind of hard to put down.  It's a great introduction to racial issues in the system, how new technologies might impact on future criminal processes, and what criminal procedure might learn from Hip Hop culture.

Another good book is Lynn Powell's Framing Innocence.  This is an account of a situation some years ago in Ohio where criminal (child pornography) charges were brought against a woman, Cynthia Stewart, who had taken nude photographs of her 8 year old daughter in the bathtub.  The book is written by Stewart's friend and neighbor, Lynn Powell, who conducted detailed interviews with many of those involved in the proceedings.  Again, this is an easy read that is hard to put down.  It shows up issues inherent in the criminal justice system and Child Services system involving family law, constitutional law and criminal law - and addresses the difficulties of fairly enforcing criminal laws based on "community standards" of unacceptable behavior.

Both of these books look at the law and legal processes from different perspectives and both would be engaging reading for those embarking on a legal career.

Judge Sharon Keller (Update)

Last February, Dan blogged about Texas Court of Criminal Appeals presiding judge Sharon Keller and her decision concerning a last-minute appeal from a prisoner on death row.

In January, I mentioned that a special master presiding over Judge Keller's ethics trial had issued a 16-page report on the matter.

Yesterday the  State Commission on Judicial Conduct decided not to remove Judge Keller from office.  Instead the Commission issued a "public warning" to her. 

You can read more on this story here and here.  The "Commission's Findings, Conclusions and Order of Public Warning" is available here.

Enron, Jeff Skilling, and the Crime of Honest Services Fraud

Loungers with an interest in the Supreme Court's forthcoming opinion in Skilling v. United States and the constitutional challenge to the federal "honest services" fraud statute may wish to read this editorial appearing yesterday in The Houston Chronicle and written by Houston law prof Geraldine Moohr (pictured).

California's Fiscal Crisis Forces Re-Evaluation of Sentencing

Well, the fiscal rubber has finally hit the  sentencing and prison road in California.  As the New York Times details, the state's financial crisis has forced open early release for some prisoners for the first time in years:

The California budget crisis has forced the state to address a problem that expert panels and judges have wrangled over for decades: how to reduce prison overcrowding.  The state has begun in recent weeks the most significant changes since the 1970s to reduce overcrowding — and chip away at an astonishing 70 percent recidivism rate, the highest in the country — as the prison population becomes a major drag on the state’s crippled finances. . . . The goal is to reduce the number of inmates in the state’s 33 prisons next year by 6,500 — more than the entire state prison population in 2009 of Nebraska, New Mexico, Utah or West Virginia. In all, there are 167,000 prisoners in California.

California's prisons are notorious for overcrowded conditions, and its fiscal crisis has certainly not helped matters.  The solution the state has come to--early release of non-violent prisoners who are unlikely to recidivate--is being watched with great interest by other cash-strapped states.

Our criminal justice system has long over-relied on long sentences and continual building of prisons to try to control crime, all of this ironically as crime has gone down over the past 40 years (and has continued to go down even in the recession).  Perhaps the simple lack of cash on the part of state governments will finally force some more reasonable thinking in sentencing.  Of course, as the article points out, the early release of California prisoners is not accompanied by any form of drug or alcohol counseling or rehabilitation to help prevent recidivism.  But it is a step in the right direction. 

Killing the Death Penalty

Loungers with an interest in the death penalty may wish to read an editorial by my former colleague (now at crosstown UH) Adam Gershowitz (pictured).  A teaser:  "The real problem with the death penalty is that it is terrible public policy that the voters of Texas should reject."  The full editorial, which appeared in the Sunday edition of The Houston Chronicle, is available here.

Columbia Law’s Elizabeth Scott Wins Best Book Award (And Some Darn Good Indian Food, Too)

Rethinking Juvenile Justice, by Columbia Univesity Professor Elizabeth Scott (Law) and Temple University Professor Laurence Steinberg (Psychology), has been awarded the 2010 Social Policy Best Authored Book Award from the Society for Research on Adolescence.

Scott and Steinberg will receive their award at a ceremony on March 12 in Philadelphia.

From the Harvard University Press website:

What should we do with teenagers who commit crimes? Are they children whose offenses are the result of immaturity and circumstances, or are they in fact criminals? . . .

[Scott and Steinberg] argue that juvenile justice should be grounded in the best available psychological science, which shows that adolescence is a distinctive state of cognitive and emotional development. Although adolescents are not children, they are also not fully responsible adults.

Elizabeth Scott and Laurence Steinberg outline a new developmental model of juvenile justice that recognizes adolescents’ immaturity but also holds them accountable.

  

Congratulations to Elizabeth, whose accomplishment provided a great excuse (as if we needed one) to celebrate at Tamarind restaurant in New York, which I've wanted to visit for years now, and finally made it.  I made up for lost time with the Lamb Dopiaza, Samosas, Boondi Raita, Pindi Chana, Bhagarey Baingan, and way too much other food and wine. Excuse me, while I waddle back to Durham now.

 

Image Right: Tamarind Restaurant in New York City.

Below: A video of dishes at Tamarind

Difficulties with Death Penalty

I don't know if people outside of Ohio have heard about the situation this week in the case of Romell Broom who was to be executed earlier this week for a murder committed some 25 years ago.  The governor was forced to order a temporary halt to the execution when the execution team was physically unable to insert shunts into the inmate's veins through which the lethal injections would be applied.  The execution team apparently tried to insert the shunts for 2 hours and then the governor was called.  A reprieve has been granted until sometime next week, although it was not clear from the news reports exactly how this matter will proceed.  A report from the Cleveland Plain Dealer is here.  Has this ever happened before in other death penalty states?  Is there a protocol for it?  It's obviously troubling on a number of levels, not the least of which is how one might feel about the death penalty in the first place.

Eliminating federal habeas review of state cases

A fascinating new paper by Nancy King and Joseph Hoffman has been recently been posted to SSRN.  Entitled "Rethinking the Federal Role in State Criminal Justice," and forthcoming in NYU Law Review, the essay discusses the use of federal habeas review for state criminal cases, and concludes that it is a waste of time and resources:

This Essay argues that federal habeas review of state criminal cases squanders resources the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners convicted of non-capital crimes, and offers no realistic hope of relief for those who reach federal court. As a means of correcting or deterring constitutional error in non-capital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court's most recent decision applying the Suspension Clause, the authors propose that Congress eliminate federal habeas review of state criminal judgments, except for cases including certain claims of actual innocence, retroactively applicable rules, or the sentence of death. The federal government should leave the review of all other state criminal judgments to the state courts and invest, instead, in a new federal initiative to encourage improved state defense services, an approach that can deter and correct constitutional error more effectively than any amount of habeas litigation ever could.

Those of you who follow sentencing and crim pro scholarship know that any new work by either King or Hoffman is well worth reading, so take some time out of exam-writing and grading and check it out!

Rockefeller Drug Laws Repealed!

As of yesterday, the NYTimes has reported, the punitive Rockefeller Drug Laws have finally gotten the requisite votes to be repealed:

The deal would repeal many of the mandatory minimum prison sentences now in place for lower-level drug felons, giving judges the authority to send first-time nonviolent offenders to treatment instead of prison.

The plan would also expand drug treatment programs and widen the reach of drug courts at a cost of at least $50 million.

New York’s drug sentencing laws, imposed during a heroin epidemic that was devastating urban areas nearly four decades ago, helped spur a nationwide trend toward mandatory sentences in drug crimes. But as many other states moved to roll back the mandatory minimum sentences in recent years, New York kept its laws on the books, leaving prosecutors with the sole discretion of whether offenders could be sent to treatment.

This is great news for New York, particularly the move to expand drug treatment programs and widen the reach of drug courts.  Although there will be some up-front costs, the savings to the court system, the prisons and the community will be immeasurable. 

"A" Is For America. "A" Is For Afghanistan.

Need a reminder that we live in the greatest country in the world?

An Afghan student journalist was arrested in 2007, accused of authoring and distributing an article discussing the role of women in Islam and charged with blasphemy.  Parwiz Kambakhsh, in his 20's, denied the allegations, contending that he downloaded the article from the Internet.  He received a death sentence.  In 2008, an appeals court commuted the sentence to a 20-year prison term.  The Afghanistan Supreme Court upheld the prison term in mid-February in a decision that came to the attention of the family and its lawyers only in recent days.

Story here. 

Prisoner Re-Entry and the Second Chance Act

One aspect of sentencing and punishment we far too often forget is on the back-end of sentencing:  what to do with released prisoners.  Although lately there has been more focus on the prisoner re-entry problem, there is still far to go.  Which is why I was happy to see that the federal government is holding hearings this week to look at at inmate and prisoner re-entry problems.  As noted by the website The Crime Report:

The U.S. House subcommittee overseeing appropriations for the Justice Department and anticrime programs will hold an unusual set of hearings on three days [this] week focusing on prisoners and inmate re-entry issues. One reason for the sessions is to assess appropriations levels for the new Second Chance Act, a federal law providing aid to prisoner re-entry programs. Testifying Tuesday before the panel, which is headed by Democrat Alan Mollohan of West Virginia, is federal Bureau of Prisons director Harley Lappin. The committee also will hear from two representatives of the American Federation of Government Employees Council of Prison Locals. Criminologist Faye Taxman of George Mason University in Virginia will talk later about drug treatment for convicts.

On Wednesday, the committee will hear from criminologists Pamela Lattimore of RTI International and Christy Visher of the University of Delaware and Urban Institute, who oversee an evaluation of a national prisoner re-entry project. Other witnesses on prisoner re-entry will be Deputy Director Dennis Schrantz of the Michigan Department of Corrections, George McDonald of the Doe Fund, Inc., Pat Nolan of the Prison Fellowship, Jennie Amison of the Gemeinschaft Home, and Judge Stephen Manley of the Santa Clara County, Ca., Superior Court. On Thursday, witnesses will be Jeremy Travis, President of John Jay College of Criminal Justice and former Director of the National Institute of Justice, and Prof. James Byrne of the University of Massachusetts, Lowell.

It's an impressive, all star cast who will be testifying at the hearings, and I am glad to see it.  Next step would be for the states to take up a similar initiative--although in this dire fiscal climate, my sense is that all criminal justice programs that are not critical (i.e., that can be cut) will suffer.  I hope to be proven wrong, however....

Potential Plea Deal for Bernie Madoff

Various news sources report today that Bernie Madoff may strike a plea deal with prosecutors:

[M]oney manager Bernard L. Madoff  has agreed to waive his right to a formal grand jury review of accusations that he conducted a worldwide Ponzi scheme, according to a new filing Friday in a federal court in Manhattan.

The agreement sets the stage for a plea bargain between Mr. Madoff and federal prosecutors, who have been negotiating with his lawyers since his arrest on Dec. 11. Criminal charges filed against him at that time and subsequent court filings indicated that he confessed to his crime both to his family members and to the F.B.I agent who arrested him at his apartment.

Further, Mr. Madoff agreed last month to a partial settlement of regulatory charges filed against him by the Securities and Exchange Commission. In that settlement, he essentially agreed that he would not contest the accusations the agency made against him — a step that would have greatly complicated any effort by his lawyers to assert his innocence at a trial.

As much of a relief as this may be to Mr. Madoff, his potentially impending plea deal highlights a major problem with guilty pleas--their tendency to cut the public out of the picture.  I am not (happily) a Madoff investor myself, but I can imagine that the majority of his former clients want to see him go through a public trial and sentencing, to have him undergo the special type of expressive retribution that only happens with the involvement of a jury.   (Funny, I just happen to have a new paper on that very issue!)

Whatever bargain Madoff sets up, I'm sure it will not be as satisfying to those he bilked as a proper trial, out in the public square.  I'm not suggesting a return to stocks or stoning--but I, for one, would like to see all of Madoff's double dealings come out into the light.  Disposing of his alleged crimes in the back-rooms of the criminal justice system will satisfy few and frustrate many.

Rockefeller Drug Law Repeal may become reality

It's been 36 years since these harsh sentencing laws punishing drug possession and sales have been promulgated, and yet despite widespread criticism, there's been little impetus for change.  Until now.  Finally, as the New York Times reports:

The [New York] State Assembly on Wednesday announced that it has agreed to pass legislation to repeal much of what remains of the state’s 1970s-era drug laws. ....

The Assembly’s proposal restores judges’ discretion in sentencing in many lower-level drug possession crimes. Judges would be able to send many offenders to treatment programs instead of prison without receiving consent from prosecutors. In addition, the measure would permit about 2,000 prisoners to apply to have their sentences reconsidered.

I've posted about this subject before, but always with a grain of salt--New Yorkers have been talking about repealing the Rockefeller Drug Laws for far too long for me to get excited.  But this actually looks like movement!  Hallelujah.

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On a somewhat different note, be sure to check out the post "Obama, Ugly Betty and the Threat to Affirmative Action" over at Blackprof by Pace lawprof Darren Rosenblum  Definitely food for thought!