Incarceration and Collateral Damage: Prof. Traci Burch to Speak at Marquette on Nov. 29

We live in an era of unprecedented mass incarceration. Since the mid-1970′s, America’s imprisonment rate has quintupled, reaching heights otherwise unknown in the western world. We embarked on this incarceration binge with little understanding of what impact it would have on families and communities. The past fifteen years, however, have witnessed a great outpouring of research and writing on the collateral effects of imprisonment. Those who work in the criminal-justice system should be – and I think increasingly are – knowledgeable about the real impact that their work has on the lives of the many human beings who are connected to each incarcerated person.

Practitioners (and students) who would like to learn more about this important issue will have a wonderful opportunity to do so in two weeks, when Professor Traci Burch of Northwestern University comes to Marquette Law School to speak on the “The Collateral Consequences of Incarceration.” Here is the description:

Dr. Burch will discuss the effects of mass incarceration on families and communities on Thursday, November 29th. This talk is based in part on her forthcoming book, Punishment and Participation: How Criminal Convictions Threaten American Democracy (University of Chicago Press). Dr. Burch will discuss how criminal justice policies shape disease, crime, domestic partner relationships, children and voting participation in low-income communities.

This event is co-sponsored by Marquette’s Department of Political Science, Law School, Klinger College of Arts and Sciences, Office of the Vice Provost for Research, Department of Social and Cultural Sciences, and Institute for Urban Life.

The talk will begin at 5:15, with an informal reception and light refreshments to follow. Additional information and a link to register for the talk are here.

The American Prison in 1931: High Ideals, Harsh Realities

As part of my ongoing review of the work of the Wickersham Commission, I am reading the body’s 1931 Report on Penal Institutions, Probation, and Parole.  I was much struck by the Commission’s ringing statement about the purpose of the prison:

The function of the penal institutions is protection of society.  To this end all efforts must be bent and all administrative methods be adapted.  All judgment upon the functioning of our prison system, or any unit within in, must be in terms of protection of society.  This raises the question of how penal institutions can best contribute to this objective.  There seems but one answer possible — by the reformation of the criminal.  Nearly all prisoners, even within the longterm institutions, are ultimately released. . . . Unless these prisoners are so readjusted before release that they are more likely to be law-abiding citizens than before they were arrested and sentenced, then the prison has not served its purpose.  If the prison experience not merely fails to improve the character of the inmate but actually contributes to his deterioration; if, as is charged, our prisons turn the less hardened into more hardened criminals, then the prison has not only failed in its duty to protect society but has in turn become a contributor to the increase of crime within the community.  Stated positively, it is the function of the prison to find the means so to reshape the interests, attitudes, habits, the total character of the individual so as to release him both competent and willing to find a way of adjusting himself to the community without further law violations.  (6-7)

This passage strikes me for two reasons.  First, viewed from a contemporary perspective, it seems a remarkably limited and arguably very naive view of the prison’s function.   Continue reading “The American Prison in 1931: High Ideals, Harsh Realities”

New Report on Criminal-Justice Reforms in 2011: States Continue to Look for Ways to Cut Costs

In a new report entitled “The State of Sentencing 2011: Developments in Policy and Practice,” Nicole Porter of The Sentencing Project summarizes the most recent set of criminal-justice reforms adopted across the United States.  Continuing a recurring theme in recent years, many of these reforms are intended to reduce incarceration numbers and corrections budgets.  Here are some highlights:

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Private Prisons and Accountability

Last week, in Minneci v. Pollard (No. 10-1104), the United States Supreme Court held that employees of privately run federal prisons cannot be sued for money damages for violations of constitutional rights.  By coincidence, last week also saw the release of a new report on private prisons by the Sentencing Project.  The report raises a multitude of concerns with private prisons, which may leave the reader troubled that the Supreme Court has now chosen to diminish the accountability of for-profit jailers.

Here are the (quite critical) conclusions of the Sentencing Project:

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Why Following the Rules Should Get You Out of Prison Early

I have a new paper on SSRN entitled “Solving the Good Time Puzzle: Why Following the Rules Should Get You Out of Prison Early.”  Most U.S. jurisdictions permit inmates to obtain credit toward early release based on good behavior in prison.  It’s not immediately clear, though, why the severity of a prison sentence should vary depending on how well an offender follows the rules while incarcerated.  No amount of good or bad conduct in prison is capable of changing the seriousness of the underlying crime for which the offender is being punished.

The most common justification for good time is probably that it makes the job of prison administrators easier by giving them an additional set of incentives and sanctions to hold over inmates.  Critics question, however, whether the potential loss of good time really does add anything to the deterrent effect of much more immediate sanctions, such as disciplinary segregation.  Critics also object that the loss of good time — functionally an extension of the prison term — is not a just and proportionate response to rules violations that may be relatively technical and harmless and that need not be proven through formal trial-type proceedings.

In the paper, I argue that good time can thought of and justified in a different light.  In essence, I suggest that good conduct in prison can be conceptualized as a form of partial atonement for the underlying crime.  If seen in this way, good-time credits can be justified as a way of recognizing atonement, which seems to me an appropriate objective for the criminal-justice system.

Segregation and Security for Gay and Transgender Inmates

I posted a few days ago on the Seventh Circuit’s decision on the right of transgender inmates to treatment.  Now, by coincidence, I’ve read a really fascinating new article by Sharon Dolovich about the segregation of gay and transgender inmates in the Los Angeles County Jail (“Strategic Segregation in the Modern Prison,” 48 Am. Crim. L. Rev. 1 (2011)).  What’s the connection?  An important question in the Seventh Circuit litigation was whether hormonal treatment, which would give transgender inmates a more feminine appearance, would make them more likely to be victimized.  However, Dolovich’s bleak account of the culture of “hypermasculinity” and sexual victimization in prison suggests that transgender (and, for that matter, gay, youthful, and physically weak) inmates are already coded as feminine and targeted for victimization — it’s hard to imagine that hormone-driven changes in appearance are likely to make matters much worse.

Dolovich’s article focuses on LA’s unique K6G Unit, which is intended to provide a safe haven for gay inmates.  She has conducted extensive interviews and other empirical research in order to evaluate K6G.  It appears that the unit does make a large, positive difference in the lives of those who are admitted to it.  Indeed, perhaps the strongest evidence of the relative safety of the unit is that many straight inmates have risked the stigma of homosexuality in order to try to fool jail officials into letting them in.

But, as Dolovich also points out, it is quite troubling to see jail officials systematically segregating a population that has a long history of social marginalization.   Continue reading “Segregation and Security for Gay and Transgender Inmates”

Still No Answer on Whether Assignment to Highest Level of Disciplinary Segregation Triggers Due Process Rights

When a prisoner is disciplined for alleged misconduct, does the prisoner have any due process rights? Rather than adopting a bright-line rule to answer this question, the Supreme Court has indicated that due process rights depend on whether the sanction imposes hardships more onerous than “the ordinary incidents of prison life.”  Sandin v. Conner, 515 U.S. 472 (1995).  Therefore, a disciplined prisoner alleging a due-process violation must present evidence regarding both the sanction he endured and general prison conditions.

In light of this requirement, the Seventh Circuit yesterday rejected a due process claim by an inmate at Wisconsin’s Columbia Correctional Institution who was placed in the prison’s most restrictive disciplinary segregation (“DS-1”) because he had committed misconduct while in “DS-2.”  Marion v. Radtke (No. 10-2446).  Along the way, the court helpfully clarified the nature of the evidence that an inmate must present in order to advance such a claim.

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Do Criminals Count?

Do criminals count?  Are they really “one of us”?  That is the big question that hangs over all of the Supreme Court’s Cruel and Unusual Punishments Clause cases, including the Court’s decision earlier this week in Brown v. Plata, which affirmed a lower-court order requiring California to reduce its prison population.  Do we regard criminals as fellow citizens, or at least fellow human beings, who are entitled as such to some irreducible minimal level of decent treatment?  Or does a person, by virtue of a criminal conviction, fall to some qualitatively lower moral status, such that decent treatment is purely optional?

The latter view is hardly foreign to the American legal tradition.  The Thirteenth Amendment expressly contemplates that convicts will be treated as slaves, and courts routinely characterized prison inmates as “slaves of the state” until the 1970s.  Mandatory minimum sentencing laws are, I think, in much the same spirit — they proclaim that criminals are unworthy of individualized consideration at sentencing and will be presumed irredeemably dangerous.

In the realm of constitutional law, the Cruel and Unusual Punishments Clause offers the only real counterweight — this is the one provision of the Constitution that is expressly written to provide rights to convicted criminals.

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“Doing Time,” Tom Sawyer Style

My daughter and I continue to enjoy reading Huck Finn. We’ve just gotten through the part in which Jim is imprisoned by Tom’s uncle in order to return him to slavery.  Tom and Huck are able to get access to him and could free him easily, but Tom insists that the escape be “done right” — that is, consistently with the way things are done in all of the romantic novels Tom has read.  Tom instructs Jim to play the part of a wrongly imprisoned nobleman, even devising an elaborate coat of arms for Jim, which he is required to scratch into the wall of his cell with a crude pen.  Day after day, Tom lays more and more responsibilities on Jim, all reflecting an absurdly idealized vision of how a romantic, aristocratic hero should be spending his time in prison — from keeping a journal written in blood (Jim, of course, is illiterate) to taming the rats in his cell to growing a flower that is watered by his tears.

Increasingly exasperated, Jim finally exclaims that it is “more trouble and worry and responsibility to be a prisoner than anything he ever undertook.”

Jim’s perception that prison really does involve this sort of rigorous program in the service of an elevated aesthetic ideal  — literally demanding his blood, sweat, and tears on a daily basis — strikes us (or at least me) as humorous because we perceive prison to be just the opposite, an empty passage of days, weeks, and months that is nicely summed up by the common phrase “doing time.”  We do not normally think of prisoners as having important day-to-day responsibilities to others; indeed, prison seems designed systematically to disable inmates from acting as responsible members of the community.

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“The Toughest Beat”: Feminine and Masculine in Punishment

After my month-long blogging break, I’m glad to be back.  Although hectic, I think my month was well spent.  Not only did I finish classes for the semester and get through a bunch of grading, but I also attended two excellent conferences at the University of Minnesota, one on comparative prosecution systems and the other on sentencing.  I also had a trip to New York for a Federal Sentencing Reporter editors’ meeting. 

It was on the latter trip that I read Josh Page’s outstanding new book The Toughest Beat: Politics, Punishment, and the Prison Officers Union in California.  Josh is a sociologist at the University of Minnesota, and his book tells the extraordinary story of the California Correctional Peace Officers Assocation.  Those who follow penal politics in the U.S. will already be familiar with the basic story line: union of prison guards becomes major player in California politics, drives adoption of state’s notoriously harsh three-strikes law, steadfastly opposes any reforms that would soften state sentencing, and (not coincidentally) benefits enormously from the state’s unprecedented prison-building boom and concommitant explosion in number of (dues-paying) prison guards.

If anyone were looking for a good case study of what can go wrong when public employees become unionized, it would be hard to beat the CCPOA story.

Although the basic narrative may be familiar, Josh’s book adds a wealth of detail and analytical richness.  One theme, in particular, caught my attention: the intensely gendered nature of the CCPOA’s sense of identity and mission, particularly during the crucial first generation of the union’s leadership.

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