Christopher Zoukis's Blog, page 11
September 30, 2016
Presidential Commission Criticizes Some Forensic Methods
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.
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.
Scholarly Study Looks at Prison Popularity of Ramen Noodles
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.
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.
With 111 More, Presidential Commutations Set New Record
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.
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.
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.
September 6, 2016
NY Times Highlights Dangers of Private Prison Vans
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.
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
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.
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
August 31, 2016
Does the Eighth Amendment Require Air-Conditioned Prisons?
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 nation’s 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 doesn’t exceed 88° F.
Six months after the lawsuit was filed, the judge ordered air conditioning for Angola’s 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.
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 nation’s 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 doesn’t exceed 88° F.
Six months after the lawsuit was filed, the judge ordered air conditioning for Angola’s 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.
Study Sheds Light on Disabled Persons Caught in Criminal Justice System
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.
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.
President Obama’s Commutation Pen Stays Busy
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.
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.
CDC issues report card on prison and jail health services
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.
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.
July 31, 2016
BOP Makes Little Use of Expanded Compassionate Release
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.
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.
Senator Offers Bill to Deny Private Prisons REIT Status
The ranking Democratic on the Senate’s 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 nation’s “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.
Wyden’s 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.
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 nation’s “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.
Wyden’s 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.
