The Criminal Lawyer

The January 30 issue of the New Yorker has an intriguing article by Adam Gopnik, “The Caging of America: Why do we lock up so many people?” Perhaps we’ve grown a bit cynical, but we expected yet another inane media whine about increasing rates of imprisonment “despite” fewer crimes being committed. We were surprised to find a thoughtful — at times insightful — look not only at the reality of American incarceration, but also at what causes crime to go up and down. It’s rare enough for a news or magazine writer to do even that much. To his credit, Gopnik goes one further, making a creditable attempt at objectivity — dismissing, debunking and blaming both the right and the left — though his apparent left-ish leanings still come through from time to time.

-=-=-=-=-

Gopnik’s main points are these:

Incarceration is happening on an unprecedented scale in our history. It’s been growing ever faster since the 1970s. Its ubiquity and brutality have become accepted parts of the culture. Northern and Southern thinkers have come up with different explanations and solutions. Northern thinkers like William J. Stuntz see prison as a place for rehabilitation, and the injustices as the result of our system’s reliance on procedural correctness rather than individual justice, from the Bill of Rights through the present day — a problem to be solved by letting common sense and compassion be the focus on a case-by-case basis. Southern thinkers like Michelle Alexander see prison instead as a means of retribution, and the injustices of the system are part of its design to trap and control young black men.

As incarceration rates more than tripled between 1980 and 2010, the crime rate itself went down. “The more bad guys there are in prison, it appears, the less crime there has been in the streets.” The huge growth in imprisonment, and the policies that led to it (such as harsher drug laws, zero-tolerance policies, restricted sentencing discretion, etc.) were a reaction to the big-city crime wave of the 1960s ad 1970s — a crime wave that owed its existence to liberal policies that had crossed the line from mercy to abdication. Meanwhile, research began to reveal that rehabilitation doesn’t work, and bad guys weren’t getting better, and so all you could do was lock them up to keep them off the streets.

Starting in the 1990s, crime rates began to drop — by 40% nationwide, and 80% in New York City. Demographic shifts don’t account for it. Neither do broken-window policing, keeping the really bad guys behind bars, welfare reform, or other right-wing explanations. The left’s insistence that crime comes from poverty, discrimination and social injustice didn’t work, either, as none of those things changed enough to account for the drop in crime. The economy didn’t have an effect.

What did have an effect in New York City, however, was (more…)

Too many people are in jail.  The rate of incarceration is just going up and up.  Is it doing any good?

If you look at the two graphs above, you’ll see that the prison population in the United States has soared, while the amount of violent crime has plummeted.  The prison population of 1.5 million is about triple what it was in 1980.  Meanwhile, according to the DOJ’s figures, violent crime is about a third of what it was in 1980.  It’s an uncanny correspondence, that incarceration has tripled while violence has thirded (yes, that’s a real word).

Some people look at this and say there’s an inherent absurdity, an inherent injustice, that even though crime is down jailings are up.  Others say it’s obvious that, if you jail the people who commit crimes, they’re not going to be walking around to commit as many crimes.  One sees a paradox, the other sees causation.  (These are not straw men, by the way.  These positions have been taken on the pages of the New York Times and the Wall Street Journal, among others.)

There really isn’t any paradox, of course.  It’s not like more people are being imprisoned than there are crimes being committed.  Last we heard, everyone in prison was convicted of something.

What’s going on here is that more and more convictions are resulting in incarceration.  Crime may be down, but the proportion of crimes you’re likely to go to jail for is way up.

Nonviolent crimes, in particular, are far more likely to get you a jail sentence these days.  Since about the start of the Clinton administration, the number of different kinds of nonviolent offenses has skyrocketed.  And drug crimes have been a growing proportion since the Reagan years.

Several factors are involved in this dramatic increase in prison for nonviolent offenses.  One is a dramatic increase in regulatory violations that have been criminalized.  Regulatory agencies have started using criminal law as a tool — a tool that is wrong for the job, and one they are ill-equipped to use.  Voluminous regulations are created to micromanage how people can live their lives and operate their businesses.  Fines, denial of permits, and other civil penalties are the normal and appropriate method for enforcing compliance with all the regulations.  But over the past generation, regulators have become emboldened to impose criminal penalties for violations of their rules.

These regulations are rarely drafted by anyone who has the slightest clue of what criminal law is, why it exists, and how it works.  So they tend to leave out little things like mens rea.  Everything’s a strict-liability crime with them. In the regulatory world, simple mistakes are indistinguishable from deliberate transgressions.  When the penalty is denial of a permit, that’s not a problem.  But when the penalty is prison, it’s a big problem.  And everything’s a federal offense, which almost always means a felony.  Instead of, you know, regulating conduct, the regulators use the criminal law to keep the unruly masses in line.  And more people face prison as a result.

Another factor is the elected politicians’ desire to look “tough on crime.”  Which results in a steady ratcheting-up of sentencing for existing crimes, as we’ve discussed before.

It also results in the creation of new crimes, harsher statutes to deal with the public outcry of the moment, like crack or hate crimes or insider trading or what have you.  These new offenses are rarely necessary, as existing laws tend to already punish the conduct.  But the new ones often carry greater minimum sentences, and that’s the whole point.  So more people are facing prison, and for longer stretches of time, than before.

-=-=-=-=-

The situation is getting out of hand.  It’s gotten to the point where small corrections aren’t going to cut it.  Drastic measures would be needed.  And drastic measures being, you know, drastic and all, they’re not likely to be undertaken any time soon.

But let’s say we’ve got a genie who’s offered to grant us three wishes here.  What would they be?

Wish one would be (more…)

Those of us who work in the criminal justice system — whether lawyers, judges, social workers or whatever — are fairly cognizant of the fact that the vast majority of people who get arrested aren’t really a problem for society.  Depending on the stats you’re looking at, for something like 83% of the people who get arrested, that first contact with the criminal justice system is their last.  They don’t re-offend, period.  Maybe they’re good folks who just made a mistake.  Maybe they got scared straight.  Maybe their crime was the result of a circumstance that will never occur again.  Whatever the reason, we never see them again.

As we all pretty much recognize this, we tend to give first-timers (well, not murderers, obviously) some benefit of the doubt.  We give the first-arrest guy a chance to prove that, though he may have committed this crime, he’s not really a criminal.  Maybe he gets a consent decree/adjournment in contemplation of dismissal.  Or a conditional discharge, or some period of probation.  Community service.  Something, anything, other than jail.  Some kind of penance, whereupon we can confidently give our blessing and say “go forth and sin no more.”

But what about those who come back?  What about that 17% who re-offend?

They keep coming back, that’s what.  They may have gotten probation last time, but they’re soon going to find themselves in prison.  And once they get out, they tend to re-offend and get sent right back.  Usually within three years, but often within a single year.

The California Department of Corrections and Rehabilitation just released a thorough statistical analysis of these re-offenders.  You can check it out here.  It doesn’t really have much to say about why people re-offend, but it has some useful data on who re-offends.  Good breakdowns by various demographic categories such as age, race, sex, nature of offense, and mental illness.  Also some eye-opening stats on how soon they re-offend, how often, and how long they stay in prison.

A lot of conclusions can be drawn from these stats.  The wrong conclusions can be the most tempting — to (more…)

A panel of three federal judges yesterday essentially ordered the State of California to reduce its prison population by as much as 57,000 people, because crowding is causing violations of prisoner rights. This doesn’t mean that wardens will be releasing thousands of hardened criminals back onto the streets, but it does raise questions of how to do it. In its ruling, the court accepted certain possible solutions, but rejected the one obvious solution of building more prison space.

The panel was made up of U.S. District Court judges Thelton Henderson and Lawrence Karlton, as well as Stephen Reinhardt of the Ninth Circuit. These judges are known for their left-leaning policies, so it’s hardly surprising, perhaps, that they accepted and rejected the solutions that they did. Increasing prisons is not widely regarded as a liberal position.

Although the panel only issued a “tentative ruling” in Coleman v. Schwarzenegger (link from the L.A. Times), this is probably going to be the final ruling, which is why they were confident enough to issue it formally. Unless it’s overturned on appeal, California is going to have to think up and enact some creative methods of carrying out the order, so the judges wanted to give the state time “to allow them to plan accordingly.”

The case, actually two cases, were brought by prisoners who alleged that crowding — not overcrowding, just crowding — was causing violations of their constitutional rights. These aren’t new cases — one has been in the remedy stage since 1995, and the other since 2002.

The dispute now was not over whether crowding exists, or whether care is unconstitutionally inadequate. Gov. Schwarzenegger issued a state of emergency in 2006, still in effect today, because overcrowding was putting prisoners’ and guards’ health and safety at risk. So the fact of crowding couldn’t be in dispute. Also not in dispute is a previous court ruling that the prisons were not providing constitutionally adequate medical and psychological care.

The issue here was whether the crowding was the main reason for the failure to provide adequate medical and psychological care. And if so, then what to do about it.

The court found that there aren’t enough clinical facilities, resources or personnel to accommodate all the inmates who needed them. The risk of the spread of infectious disease is also enhanced by bunking prisoners in gyms and other spaces not intended to be used for housing. Lots of experts testified that crowding was the primary cause of the problems.

That being decided, California wanted a chance to fix the problem without decreasing the prison population. California showed that, under monitoring by a receiver and special master during the past 11 years, the Department of Corrections and Rehabilitation had already made significant improvements in conditions. So they asked for more time to fix these particular problems.

The court said no. They’ve had 11 years, and haven’t fixed the problem yet, so the court didn’t trust the monitors to fix it now. And anyway, “many of their achievements have succumbed to the inexorably rising tide of population.” Furthermore, California has no money to spare for new facilities, resources and personnel. Remedies for these cases have been tried since 1995, for 14 years now, and any future efforts of the receiver and special master could take many more years to have effect. The court felt that any further continuation of the already lengthy deprivation of constitutional rights would be wrong.

The court couldn’t think of any other relief that would work, other than reducing the prison population. Because scores of remedial orders had so far failed, “we are at a loss to imagine what other relief short of a prisoner release order a court could grant.”

So back to the question of how to do it. The court suggested various methods, such as “parole reform,” which we guess would mean changing parole rules, so that violators don’t necessarily go back to prison. Or “good time credits,” which could include both granting greater time off for good behavior, and letting more bad behavior count as good behavior. Or “evidence-based programming intended to reduce recidivism,” which simply means implementing services that are scientifically proven to actually reduce subsequent criminal behavior, as opposed to trying things that just sound good.

The court felt that building more prison space, the one obvious solution, was not something the court could order California to do, because it “may not be within the court’s general powers under the PLRA.” The PLRA, 18 U.S.C. §3626(g)(4) defines a “prisoner release order” as anything that has the effect of reducing or limiting the prison population. So the examples above would work. But one that merely reduces crowding — the problem to be solved here — doesn’t count, because it doesn’t reduce the number of prisoners.

We think that’s probably wrong. Building more prison space would solve the problem complained of. It may not be within the scope of the PLRA, but that’s not the sole authority that the court has. It has equitable power to order the state to do whatever works to stop the constitutional violations.

The court went on to say that California’s inmate population was about 200% of intended capacity, but reducing that population to about 120% to 145% would be sufficient. The court felt that this was the proper balance between concerns of public safety and prisoner rights.

The state immediately announced that it will appeal, of course. This will be one to watch, as pretty much every state is operating prisons beyond their design capacity, and fixes need to start happening soon. What happens here will influence how other states deal with the problem.

This morning, the Supreme Court returned from its long break to issue a unanimous ruling in Chambers v. United States (No. 06-1120, Jan. 13, 2009). At issue was the crime of failure to report to jail, and whether that crime is a “violent felony” for the purposes of the Armed Career Criminal Act.

ACCA imposes a mandatory 15-year sentence for a felon who unlawfully possessed a firearm, and who also has three prior convictions for either drug crimes or violent felonies. A “violent felony” is defined by 18 U.S.C. § 924(e) as one that (among other things) “involves conduct that presents a serious potential risk of physical injury to another.”

The government wanted Chambers sentenced to the mandatory 15 years, based on prior convictions that included an Illinois crime of failing to report for weekend confinement.

Chambers said that the Illinois crime was not a violent felony for the purposes of ACCA. The government disagreed, arguing that the crime demonstrates a “special, strong aversion to penal custody,” and therefore was akin to a prison break. And prison escapes by their nature involve conduct that presents a serious potential risk of physical injury to another.

The Court didn’t buy that argument. Unlike a prison break, which is an active crime, failing to report is merely a crime of inaction, the Court said. The Court added that, sure, the defendant must have been doing *something* during his absence from jail, but there is no reason to believe that it was something risky to others. On the contrary, he’s probably less likely to draw attention to his whereabouts by “engaging in additional violent and unlawful conduct.” Aversion to penal custody, no matter how “special, is beside the point.”

The Court added that, of 160 cases involving a failure to report in a 2-year study by the Sentencing Guidelines Commission, “none at all involved violence — not during the commission of the offense itself, not during the offender’s later apprehension.” The government itself could only find three examples in 30 years.

Because of this, the Court held that this particular crime does not count as a violent felony for ACCA purposes, reversed, and remanded.