Can a blue ribbon commission do something about our prison problem?

I’m generally pretty skeptical about creating commissions or advisory bodies to solve big problems. Usually that’s just a sign that the that the people who can actually solve a problem have no interest in it (see Bowles-Simpson, a commission supposedly supported by both parties which created solutions for the debt “problem” that were too dramatic for anybody to support and just ended up being kicked aside while other solutions were considered).

Since I generally am not big on commissions without power to do much more than make recommendations, I was surprised to see one response to the Aaron Swartz debacle was support for the National Criminal Justice Commission act. This act died in the last Congress despite bipartisan support–it had enough votes to pass both houses of congress but was killed by a filibuster in the Senate; without sufficient lobbying power behind it there was nothing to really force it through (the ACLU are good people and supported the act, but they don’t exactly have as much sway in DC as Halliburton).

The NCJC would be an independent group which would examine the justice system in all 50 states and make recommendations. Naturally the states would not be obligated to adopt these recommendations. Could this act do anything? Despite my general skepticism as outlined above, I think there is some value to a commission with the heft of the federal government behind it examining the criminal justice system. There are a few reasons we might expect an advisory commission here to work better than it would in a situation like for the national debt issue. First, this is a relatively low-profile issue with apparently technocratic solutions. Second, the lobby which would resist reform here may actually be combatable.

On the first point, the issues relating to criminal justice and prison policy are actually not germane to most people’s lives. Although prosecutors and elected officials have run for office for years on the the argument that crime is something that affects people’s lives every day, that is generally simply not the case. And in any case, violent crime and murders have been declining for several decades now, so paranoia should hopefully be declining alongside it. Additionally, many of the changes that would be suggested are relatively minor and technocratic changes that don’t really have any apparent possible impact on public safety. One example is already in place in Washington and Colorado: reducing penalties for non-violent drug offenders (although this obviously did not come in the form of a good-government measure).

Another common suggestion which is already also being implemented in Colorado is to end reincarceration for non-violent parole violations. There is simply no reason to throw people back in prison for something that would not get them thrown in prison in the first place just because they are on parole. In fact, it’s probably likely to result in the worst outcomes possible, increased possibility of recidivism, increased risk of violence on prison where another and lighter punishment would serve the purpose of preventing further criminal acts (which is really the point of parole) just fine. These types of small tweaks are unlikely to be brought up by legislators on their own (State legislators are generally part time and most concerned about local projects vs. larger efficiency projects).

The second reason this commission might have better luck than something like Bowles-Simpson is that the prison lobby  does not have the built in weight that other lobbies might have. While any industry that relies heavily on government contracts for its livelihood will fight tooth and nail to make sure it doesn’t happen, lobbies like defense contractors or oil companies have a built-in community of civilian support in the form of military towns and oil cities. While the interests of these communities might not be precisely aligned with the industries doing business there, the companies can at least count on the legislators and citizens in those areas to advocate for additional spending. By contrast prison towns appear to be declining somewhat. Additionally, they are fairly small and generally politically disenfranchised.

Some small changes in prison and justice policy could make a real difference. It’s because these changes are relatively minor and do not affect many people in their day to day life that I believe a commission could make a real difference.

Drug laws and the great deleveraging

In what seems to be part of a somewhat encouraging trend of reducing the criminal penalties for minor offenses, the legislature is looking at proposals to drop a variety of drug offenses from felonies to misdemeanors. As it stands, this is framed as a much needed attempt to reduce prison expenditures in Colorado which have grown out of control:

Colorado lawmakers are proposing reduced penalties for some drug possession offenses in a move that supporters say is aimed at ensuring offenders get treatment instead of long prison sentences.

The bill introduced in the Senate Tuesday would drop some offenses from felonies to misdemeanors and represents another attempt by lawmakers to decrease the prison population and cut expenses in the Department of Corrections.

This is a good step in the right direction, especially considering the devastating human costs and limited benefits of lengthy penalties for drug offenses. This sort of bill should slant the penal system in a more rehabilitative direction, which would be good.

The other benefit of something like this is it slants the procedural aspects of the criminal case away from the prosecution to a greater extent. When the threat of a conviction for a relatively minor drug offense is five or more years in jail, taking the case to trial doesn’t sound particularly enticing. That’s made worse by the massive discrepancy between the plea offers and the maximum sentences at trial. Sometimes a plea can result in mere probation (and you can get your record sealed for certain drug offenses) while a conviction at trial can result in a multi-year prison sentence with no chance at a record-sealing.

So this is a win-win. Reducing the sentences will not only reduce the amount of people in prison, it will also increase the ability of defendants to exercise their rights to a trial without the threat of a massive sentence in the event of a conviction.

One way to take a stand against prison overcrowding

In Colorado prisons and prisons across the country, overcrowding is a massive problem. Part of that is because of drug laws, many carrying mandatory prison sentences even for non-violent or minor first-time offenders. However, another issue is how plea bargaining pushes defendants into accepting prison sentences where the evidence of their guilt may have been tenuous at best. Although prosecutors do not have the resources to push all these cases through trial, they are able to convince defendants to plead out because the possible sentences at trial are so dramatic that defendants are unwilling to accept the risk. This causes two separate but equally disconcerting problems: the prosecution’s case is frequently not put to the test. Additionally, all the folks that are sent to prison without even a peep of voiced resistance (a mere allocution is the entirety of their day in court) are filling up the prisons and contributing to the overcrowding problem. One activist proposed a solution in yesterday’s New York Times:

On the phone, Susan said she knew exactly what was involved in asking people who have been charged with crimes to reject plea bargains, and press for trial. “Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?”

The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

This seems to be a pretty ethereal solution to a problem that is a lot more pressing than proposed. When the proposed solution does nothing beyond “create chaos,” what in the world is the end-game? How do we know the response won’t be to simply abolish jury trials through constitutional amendment (there’s a pretty strong pro-punishment sentiment still)? In Colorado, the response to the rising costs of prosecuting traffic tickets in some jurisdictions was to just abolish discovery and plea bargaining.

The other problem is a dramatic ethical dilemma for those who would organize this protest. Obviously no defendant is going to be the first to volunteer to risk a longer sentence to go to trial and screw up the system. Somebody has to be in charge of setting the whole thing up. And it would almost have to be attorneys: the lawyers who advise defendants and whom defendants trust to give them good legal advice. The problem here is that attorneys have ethical obligations of competence to the individual client. An attorney could not ethically be part of a movement to give advice that leads a client to a worse outcome for a greater larger movement.

Dealing with juveniles in prison

Given the rather miserable conditions afforded today’s prisoners, in Colorado prisons and prisons across the country, it makes sense to worry also about how the numerous juveniles in prison are faring. In a world where juveniles are increasingly treated as adults in the criminal justice system, it’s important to make sure they aren’t treated quite as poorly as adults. After all the goal of the justice system for juveniles is supposed to be to treat them as maleable beings who can be rehabilitated. Even if that’s something rehabilitation is something that’s largely absent from prisons as a whole. As such, it’s good to see progress for a bill like this:

If enacted into law, HB 12-1139 will help to protect the human rights of the state’s children accused of crimes, Human Rights Watch and the American Civil Liberties Union said. Youth in adult jails and prisons are extremely vulnerable to physical and sexual abuse and have a developmental need for protection, education, and other services to fully mature into adulthood. HB 12-1139 would require authorities to hold youth under age 18 who are subject to pre-trial detention for criminal offenses in facilities designed to hold juveniles, unless a judge decides otherwise in a hearing. Colorado currently houses such youth in jails designed to house adults, often in prolonged solitary confinement.

Now naturally this is just a small and nearly administrative change, but a lot of this stuff is more about attitude than actual policy changes. Long before prisons and crime policy became draconian tot he point of approaching a human rights violation, the “tough on crime” rhetoric racheted up to an extreme level. Similarly, even though this is an unopposed action, it’s not like humane treatment of juveniles is always a slam dunk case in the court of public opinion. There is always pressure to try and treat juveniles as adults, so the assembly should be applauded for taking action like this.

Can you sue for this?

Both the civil justice system and the penal code make it pretty hard for prisoners to sue about anything relating to the conditions of their confinement. There are difficulties with standing, differing standards for lawsuits involving inmates, and also the fact that judges just generally don’t like prisoners. That’s why it’s fairly remarkable when prisoners do manage to win a lawsuit like Plata. But is suing a viable way of affecting change in the prison system? A Colorado prisoner is about to find out with a rather unorthodox lawsuit, alleging that she was incorrectly classified as a man and deserves damages due to abuse incurred while housed in men’s facilities:

Jasmine Martinez, 39, says she was born with male and female reproductive parts. She refers to her condition as intersex or a hermaphrodite. She was born Jose Ruiz.

Her adult criminal record lists run-ins with police starting at age 18. They lead to many stays in jails and Colorado prisons. Martinez, living as Ruiz at the time, pleaded guilty to theft over $15,000 in 2002 and convicted of sex assault on a child in 2007.

Martinez was locked up as a man in county jails and in prison.

My first thought here is that it is simply going to be incredibly difficult to prove damages.While she almost certainly suffered a ton of anguish in prison, she would have to prove that if she hadn’t been housed in men’s facilities she would not have suffered that abuse. And although that may not be that difficult to prove, it seems that a general assertion that there is less abuse in women’s prisons would not be enough. That would give rise to a claim by every man in jail or prison. So she would have to prove that she suffered greater abuse than a normal man (or normal sex offender) because of the incorrect classification. And that’s not even getting into the issue of whether the classification was correct or not.

Foucault and deterrence

I like to bounce back and forth between the really practical and the really theoretical when discussing prison policy. Something that definitely falls on the extremely theoretical end are centuries old and centuries long changes in penal practices. In the 18th century, and execution might have ended something like this:

After two or three attempts, the executioner Samson and he who had used the pincers each drew out a knife from his pocket and cut the body at the thighs instead of severing the legs at the joints; the four horses gave a tug and carried off the two thighs after them, namely, that of the right side first, the other following; then the same was done to the arms, the shoulders, the arm-pits and the four limbs; the flesh had to be cut almost to the bone, the horses pulling hard carried off the right arm first and the other afterwards.

Read the whole thing, it’s pretty great. In any case, an execution was a grisly spectacle in the public square, and also something resembling must-see TV for people in the town. Just a hundred years later, things were much more civilized and orderly. By the late 19th century, a criminal was either detained and segregated, or detained, segregated and put to work:

Art. 20. Work. At a quarter to six in the summer, a quarter to seven in winter, the prisoners go down into the courtyard where they must wash their hands and faces, and receive their first ration of bread. Immediately afterwards, they form into work-teams and go off to work, which must begin at six in summer and seven in winter.

(Foucault details a whole routine that prisoners had to go through during the day). As Foucault states, there was a change in the mentality accompanying punishment, which marched along in tandem with advances in the justice system such as the addition of jury trials, and additional due process:

And yet the fact remains that a few decades saw the disappearance of the tortured, dismembered, amputated body, symbolically branded on face or shoulder, exposed alive or dead to public view. The body as the major target of penal repression disappeared.

This also in many ways signified the turn from a deterrence/retribution model to a rehabilitation/segregation model. But was this driven by some underlying change in the barbarian nature of humanity, or simple logistics? In the 18th century it would have been impossible and counterproductive to facilitate productive or segregatory punishment for the tens of thousands of people who committed crimes. Better to either execute them or scare the shit out of them and let them go.

By the 19th century, you could transport, keep track of, and lodge thousands of people in little cities.

Once it becomes an option to not have to rip people limb from limb, that option becomes pretty appealing and societies tend to change their thinking along with that. The whole idea of retribution in the form of killing people appears “barbaric” and we’re looking at segregation and rehabilitation as the right things to do.

But now that a lot of the arguments for deterrence appear to have fallen by the wayside, and as a society we’re loathe to admit that we are actually using segregation (because it’s inefficient and stupid), where is the balance between humanity and barbarianism in the whole deterrence thing? Deterrence seems to be a primary and acceptable argument for super long sentences and also the death penalty. Maybe the way to go here is to look to the past and make things less humane. Or, with the awfulness of prison conditions at the moment, are we already heading that way?

How to create accountability for private prisons

One considerable issue with privatization of public functions like prisons is the question of how a private corporation will weigh its publicly granted mandate against the profit motive. Will private prisons support proven anti-recidivism measures that the government likes even if it cuts into their bottom line? Furthermore, how can the people hold them accountable? One possible solution to this, at least when the company operating the prisons is a public company run by shareholders, is to become a shareholder and attempt to create at least some accountability that way:

A former prisoner, now a shareholder in the country’s largest for-profit prison operator, has won a battle with company management over his campaign to hold the Corrections Corporation of America accountable for reducing sexual abuse at its facilities. The Securities and Exchange Commission has ruled that the shareholder resolution, calling attention to the issue of prison rape, can be included in proxy materials sent to CCA investors in advance of the company’s annual meeting.

Of course this is basically a way to get a certain amount of publicity directed to the issue of prison rape. Most people who buy stock in CCA probably do it for the same reason people buy stock in any other company: to make money. Most people who are investing in private prisons also probably either understand that they are making money of a company that has an obligation to control rape but isn’t really doing enough, or are in denial about prison rape. So the idea that a few activists who buy into these corporations on a limited basis can make a huge difference is probably naive. All the knowledge in the world about sweatshops won’t shut Nike down, and the same is likely the case here. There is just no substitute for government agencies fulfilling government functions.

Truth in advertising on reintegration programs

Here’s an apparently encouraging piece from Joshua Zaffos on a new program designed to help older inmates reintegrate into society, even those who committed apparently heinous and previously crimes where the convict would have no real opportunity for parole. This is supposed to be a money-saving deal. Old inmates are expensive, and if they’ve been there a while they have probably learned their lesson. Meanwhile, with a decent support structure, they can probably become contributing members of society again. This new program is designed to relieve the overcrowding problem in Colorado prisons, and also make sure these severe offenders who are released have a minimal chance of recommitting.

From start to finish, Long-Term Offender Program participants will maintain a relationship with a single parole officer who is familiar with the program and its curriculum. In general, most parolees are assigned different officers as they move through the system, but planners believe that this measure of constancy will reduce participants’ chances of recidivism. “In a lot of places,” Altschuler says, “there are efforts within correctional facilities that are not in any way, shape, or form tied into efforts back out in the community when offenders return either under parole or some other form of supervised release.”

This is an extremely noble sounding program, and I have no doubt it’s well designed in attempting to reach its goal of preventing recidivism. The problem is, as with all government programs, it was pitched on optimal performance and evaluated on realistic performance. Even though this is a program designed to save money, it of course will inevitably be the subject of cuts itself. All those different moving parts seem ripe for corner-cutting. Legislators will tell themselves the same basic premise of the program can be achieved without this or that aspect that doesn’t appear cost effective. That can easily strip it of its effectiveness, at which point it will no longer pay for itself.

Sure it will maintain that “new program” smell for a while, but as the novelty wears off, don’t be surprised if it finds much of its effectiveness trimmed by little tiny paper cuts. I really want these programs to succeed since they help people and save money. I’m just skeptical based on this state’s and this country’s short-sighted approach to rehabilitatino programs.

Blagojevich and prison benefits for the rich or famous

Sure, prisons are bad, but not all prisons are equally bad. Run of the mill violent offenders and drug traffickers are grouped together in the higher security prisons. These tend to have the worst conditions, not because of anything the government does, but simply because all the worst offenders are grouped together. That leads to horrible violence and tons of prison rape rising to the level of a pretty severe human rights violation. Additionally, state prisons are ill-funded in comparison to their federal counterparts, meaning the safety and health care is worse.

Right here in Colorado we have one of the preferred minimum security federal prisons, the Federal Correctional Institute in Englewood. And who gets to go there? Guys who can afford good lawyers like white collar criminal Rod Blagojevich:

Blagojevich, who was convicted last December of 18 corruption counts, had reportedly requested he serve his time at the low-security Federal Correctional Institution Englewood in Littleton, Colo., 15 miles from Denver.

Beside the Englewood facility is a work camp surrounded by mountain vistas, which according to the Chicago Tribune offers more freedom for prisoners. Blagojevich could eventually transfer there.

Of course the CBS story probably overstates the country clubness of the prison by a bit. You still don’t get to leave, and even if an inmate is assigned to the work camp, he still has to work a ton for almost no pay. And really, should a prison be a place where unspeakable horrors happen to people? Seems like the FCI Englewood is probably more what a prison should be like: people can do productive work, learn some skills and also maybe go through addiction counseling.

There isn’t enough money to allow most people to go to a prison like this though, so instead of being the basic level of incraceration like perhaps it should be, it’s reserved for the rich.

The decline of the prison economy

Although prisons are expensive, one benefit of building prisons is theoretically that it creates localized economic growth. Of course the fundamental wisdom of running a such a harmful policy just so we can spend government money to make jobs is fairly myopic, but we’ll leave that for later. In any case, per an article at the excellent Atlantic Cities site, the decline in the prison population is causing pretty severe problems for these prison towns.

Littlefield, Texas, may be the best example of this exodus. In July of 2011, the town auctioned off the recently-built Bill Clayton Detention Center for half the price it paid for the initial construction rather than risk defaulting on their loan. They also raised property taxes, increased utility fees across the board, and laid off city employees while their bond rating collapsed.

Other towns such as Walsenburg, Colorado, McFarland, California, Baldwin, Michigan, and Boydton, Virginia, have suffered similar fates. Without prisoners, they’re left with empty, foreboding complexes that cost the town millions to build only a few years prior.

Unfortunately there’s not a lot to be done here. Walsenberg can’t go back and unbuild its prison. It’s stuck with a big pile of bricks that used to be good for holding inmates but isn’t good for much anymore.

The upshot of this is probably a plea for honesty from state officials and from independent contractors that operate the prisons. It’s one thing for towns to do certain things in reliance on a state program. That’s inevitable, and people are going to move where some jobs are created. That said, the state is asking for a lot more than reliance. They’re asking for subsidies out and out in the form of free land, utilities breaks and other sorts of money to aid with the cost of construction.

That’s not reliance, that’s out and out cost-shifting from the state (which has money) to the localities (which don’t). If the legislature wants to send people to prison it should pay for that itself, not dupe struggling rural communities.