If Prison Walls Could Talk

Here’s an interesting story about a just-released report on prison reform, with a kick: it’s written by the prisoners.

The authors are five inmates, all first-time offenders, who have spent a combined 95 years in the Texas prison system.

They write from their own experiences and those of others, but many of their observations apply across the country. They write about food, medicine, discipline, parole, programming, solitary confinement, and other things. And they write well.

Here are six examples to give you a flavor. Even if we don’t adopt every suggestion, doesn’t it make sense to listen?

The intake process. It ought to help steer people toward reform and rehabilitation, but it doesn’t. Instead, it degrades them and strips them of their dignity. Sometimes, new arrivals are greeted with words like, “Welcome to hell,” and then treated accordingly. Staff may yell obscenities in their ear throughout the process, among other things. This routine demands submission but discourages rehabilitation. It isn’t necessary and doesn’t comport with the state’s mission statement.

The commissary. Stock it appropriately to reduce the black market for goods that inmates otherwise steal from the kitchen or laundry at taxpayers’ expense. Stock it with healthier foods, including fruits and vegetables, and inmates will eat them. Don’t worry about their making wine out of the fruit because they’re making the wine, anyway. “[They] make wine without fruit by using fruit juice, mint sticks, raisins stolen from the kitchen, and other black-market items procured in prison. Trying to eliminate the exceptional activities of a few by prohibiting healthy items for all serves no purpose. The wine is still being made!”

Computers and technology. Expand inmates’ access to it. You can monitor and regulate their use, but keeping them from it only impedes their successful reentry into society. “When an inmate is released, they should be familiar with the technology they are expected to interact with on a daily basis.”

Visitation. Expand visiting hours and improve the experience. Don’t make it more difficult or unpleasant for people. Nurture the bonds that inmates have with their loved ones. Don’t fleece them with surcharges on phone calls and emails.

Differences among staff. Bad officers create hostile work environments for other officers and foster bad behavior among the inmates. Good officers try to treat inmates with respect and make the prison safer for staff and inmates alike. They view inmates as people who are worthy of respect and who will one day rejoin society.

Reward good behavior. Don’t just punish bad behavior. “Giving inmates the ability to set themselves apart … would give an inmate a reason to care about his future; it would give him hope that his future can be different; and giving inmates hope about a better future will change the culture of the prison system.”

 

Double, Triple Whammies and Rewards

Speaking of the False Claims Act, get ready to buckle up.

Starting Monday, an interim final rule by the U.S. Justice Department will nearly double the statute’s civil monetary penalties for each false claim. The minimum penalty will go from $5,500 to $10,781, and the maximum penalty will go from $11,000 to $21,563.

For defendants, this means you’re looking at a minimum fine of $10,781 for every allegedly false claim. Multiply that by hundreds or thousands of bills that the government may deem suspect, and you quickly run up some big numbers.

Already, the FCA’s penalties have implicated the Eighth Amendment’s ban on excessive fines in cases where they’ve far surpassed the government’s actual losses. In many of those cases, the Justice Department has avoided the constitutional question by forgoing or reducing the penalties it sought under the statute.

Now throw these new penalties in with the specter of treble damages, which means the government can recover three times its actual losses in addition to the penalties, and you’ve got double and triple whammies for government contractors—with corresponding rewards for the whistleblowers who sue them.

The new rule was required by the Bipartisan Budget Act of 2015, which directed all federal agencies to update their civil monetary penalties every year to account for inflation. For the False Claims Act, this first update catches up on inflation since 1986, which was the last time the Justice Department raised the penalties in such cases. Actually, that’s not true; the last time was 1999, but the new rule disregarded that because the Bipartisan Budget Act had repealed the underlying legislation.

The DOJ’s new penalties apply in both its civil and criminal division and across constituent agencies like the Drug Enforcement Administration (DEA), the Federal Bureau of Investigation (FBI), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

The rule may also budge many states to conform their own penalties to federal law. That’s because the federal government lets states keep ten percent more than their pro-rata share of a Medicaid-fraud recovery when they bring a case under state law. To be eligible, however, a state’s civil penalties must meet or exceed the federal ones.

The new rule is effective August 1, and it will apply to all cases that allege false claims after November 2, 2015, which is when the Bipartisan Budget Act became law. Although the Justice Department is soliciting public comment through August 29, the rule is already final and will go effective next week.

Parole and Realignment in California

Want to know about parole in California?

Well, it’s complicated because the law changes all the time in all kinds of ways, and it recently changed in a big way on October 1, 2011 when the Criminal Justice Realignment Act went into effect. Actually, the new law kind of changed everything. The purpose was to reduce the state’s prison and parolee populations and to shift some of the burden of housing and supervising them to the counties. The law responded to the U.S. Supreme Court’s ruling in 2011 that California’s prisons were so overcrowded—at nearly 200% of their capacity—that they violated the Eighth Amendment. The Court ordered the state to reduce its prison population to 137.5% of capacity, and the Realignment Act followed.

Parole, as you may know, is not quite the same as probation. Since the late 1970s, parole in California was a form of supervision that followed the end of your felony prison sentence. It was administered by parole agents or officers who were employed by and reported to the state’s Department of Corrections and Rehabilitation. Probation, on the other hand, was (and still is) a form of supervision that’s a part of your sentence, whether on a felony or misdemeanor. Probation reduces or replaces the amount of time that you may otherwise have to spend in custody, and it’s administered by the court or its probation department.

Since realignment, however, these two concepts have sort of converged because, for some felonies, you now serve your sentence in the county jail rather than state prison, and depending on where you go, you can now be paroled to the state or the county or not at all.

Here’s how it works. If you’re convicted of a non-violent, non-sexual, and non-serious felony then you generally will serve your time in the county jail, not the state prison, and if you’re sentenced to serve out your full term, then you’re released afterward without parole. Or, in such “non-non-non” cases, the court may split your sentence so that you serve part of it in the county jail and the rest on a form of parole that’s now called “mandatory supervision,” where you’re supervised by the county probation department, not the state department of corrections. On the other hand, if you’re convicted of a violent or serious felony or have such priors on your record, or if you’re deemed a high-risk sex offender or mentally-disordered offender, then you will still serve your time in state prison and be supervised afterward by the state’s parole authorities. And if you end up in state prison but don’t have such problems, then you will serve out your time and be released to the supervision of the county in what’s now called “post-release community supervision,” unless you’re already on parole from before October 1, 2011, in which case you remain under the supervision of the state.

Our Ballooning Sex-Offender Registries

California’s not the only state having trouble with its sex-offender-registration regime. In New York, the prisons are holding people past their release dates because they can’t find anywhere to live, and nearly 95% of the homeless shelters are off-limits, too.

The problem is that we don’t pass these laws on the basis of reason and evidence but on the basis of an emotional reaction to bad facts in higher-profile cases. That’s not good policy, but that’s how we get laws that require lifetime registration for every sex offense regardless of the offense or the person’s risk of re-offending (which is the case in California). Or how we get laws that register people for things like consensual teenage sex (as in at least 29 states), peeing in public (at least twelve states), or prostitution (at least six states).

The consequences are that we spend many millions of dollars to maintain registries that don’t help us distinguish high-risk offenders from low-risk ones and that permanently deprive people of any hope, housing, employment, or positive human relationships by branding them as monsters for life.

A large, growing body of research, however, says that we’re wrong about two key assumptions: that sex offenders re-offend at a higher rate than others and that most of them are strangers lurking among us. To the contrary, they are no more likely to re-offend than others—or even less likely to do so—and they are overwhelmingly not the bogeymen in the bushes but, rather, the (unregistered) people we know.

Who says so?

Well, the U.S. Department of Justice, for starters. Here’s a 2009 DOJ-funded study, for example, that found lower rates of recidivism based on its meta-analysis of 23 prior, accredited studies. And here’s a 2003 DOJ report that tracked nearly two-thirds of all the sex offenders who were released from state prisons in 1994 and found they had a lower rearrest rate than non-sex offenders.

Or how about the California Sex Offender Management Board, which oversees the largest state registry in the country in the first state to create one (back in 1947). The Board is comprised of prosecutors, police officers, and parole agents among other experts and officials. Around this time last year, it released a white paper that proposed replacing mandatory lifetime registration in California with a three-tiered system:

  • lifetime registration for sexually-violent offenders, repeat offenders, and other high-risk offenders;
  • a twenty-year registration for those who are convicted of serious or violent offenses but are not high-risk re-offenders; and
  • a ten-year registration period for misdemeanor offenders and others convicted of non-serious or non-violent offenses.

The Board’s proposal would help focus resources on those who truly present a risk while permitting others to develop stable lifestyles and move forward with their lives. We should lend our support to legislators who sponsor a bill to enact its recommendation.

Or how about Patty Wetterling, whose eleven-year-old son, Jacob, was kidnapped in 1989. Afterward, she worked hard to move more states to create sex-offender registries, and in 1994, President Clinton signed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act into law. Today, Ms. Wetterling is the Chair of the National Center for Missing & Exploited Children, and she has served on its Board of Directors for over twenty years. But she is also one of the sharpest critics of the spiraling, ballooning use of registries that does more harm than good.

Pope Francis Calls for the End of LWOP Sentences

While California still tolerates sentences of life without the possibility of parole for juveniles, and Massachusetts has ruled them out entirely, there is variation nationwide in the use of life sentences—with or without the possibility of parole—in all cases and for all people.

An interesting, multi-state report by The Sentencing Project identifies a total of 160,000 people as serving life sentences as of 2012, with 50,000 of them serving LWOP sentences; 10,000 of them serving life sentences for nonviolent offenses; and over 10,000 of them serving life sentences for conduct that occurred before they turned eighteen.

Last year, we covered a report by the American Civil Liberties Union on the status of people serving LWOP sentences for nonviolent drug and property crimes. According to that report, we are in the minority of countries known to impose LWOP sentences at all, and we are virtually alone among our peers in doing so for nonviolent offenses.

Now comes news that Pope Francis has called for the abolition of LWOP sentences. At an October 23 meeting with representatives of the International Association of Penal Law, the Pope called life in prison a hidden death penalty and noted that the Vatican had removed it from its own penal code. He also called for the end of the death penalty and touched on overcriminalization, prison conditions, solitary confinement, and other issues.

Pope Francis said criminal penalties should not apply to children at all, and he denounced a growing tendency to think that the “most varied social problems can be resolved through public punishment.”

Should We Ever Sentence Children to Life Without the Possibility of Parole?

What’s wrong with possibilities?

Earlier this month, the California Court of Appeal held that a trial court could impose a sentence of life without the possibility of parole (or LWOP) on a 16-year-old boy even though the court could not rule out the possibility of rehabilitation.

He’s older now, but the boy was just sixteen years old when he committed the crime. And make no mistake: it was a heinous, horrible crime. If it weren’t then we likely wouldn’t be here. And there’s no way to sugarcoat it. According to the record, the defendant and a 16-year-old relative broke into a home to get money for drugs. They chose the home because they didn’t see a car around, and no one answered their knock on the front door. Inside, they encountered an elderly couple asleep in their beds, and they murdered them. They had brought a knife and baseball bat with them to the burglary, and they stabbed the man multiple times in the neck and beat him about the head and upper body. The woman was beaten severely all over her body, and the entire right side of her face was crushed. That’s all straight from the appellate opinion, so yes, it was bad. From the record, it’s unclear how much of the crime was committed by the boy versus the relative, but at trial, both boys were convicted by separate juries of first-degree murder with special circumstances for committing multiple murders during the commission of a burglary and robbery.

But then, the boy didn’t exactly have role models in life. One of his uncles was already serving a life sentence for murder. His paternal grandfather was an alcoholic, and his maternal grandfather died in prison following his conviction for molesting a 12-year-old relative. His maternal grandmother used speed and cocaine and beat the boy’s mother when she was young, and later, his mom got involved in gangs—as did her siblings—which is how she met his father, who was also a gang member. His mother got pregnant with him when she was 15, and his father described it as an unplanned and unwanted pregnancy. His mother continued to drink heavily after he was born, and he grew up in a neighborhood racked with gunfire and gang activity.

His parents separated when he was a baby, and he rarely saw his father again. His mom hooked up with another gang member, and she had four more children by that guy. The new guy used drugs, drank heavily, and whipped the boy with his hand or a belt.

One day, the mom and her new guy got into it really bad, so the mom took the boy and moved out to her own, unstable mother’s house in Bakersfield. They stayed there with the grandma and her 16-year-old son, who was technically the boy’s uncle and seven months older than him.

Two weeks later, the mom reconciled with her ex and left, but the boy stayed behind in Bakersfield. He had tangled with the ex before, and he was not happy about the reconciliation.

Within days, he and the 16-year-old relative committed the crime. Before that, the boy had his share of problems, obviously, but he had no criminal record.

At sentencing, the boy’s lawyer acknowledged his horrible, horrific crime but urged the court not to give up on him entirely, arguing that he was going to be punished severely even without an LWOP sentence. Under California law, the boy was subject to either an LWOP sentence or, at the court’s discretion, a sentence of 25 years to life. See Pen. Code § 190.5(b).

The court appears to have wrestled with its decision, and at one point, it agreed that it “certainly [could] not exclude the possibility in this case, perhaps a significant one,” that the boy had “some significant possibility of rehabilitating.”

In the end, however, the court emphasized the violent nature and circumstances of the crime, and it sentenced the boy to life without the possibility of parole.

On appeal, his lawyer argued that the Eighth Amendment allows an LWOP sentence for a juvenile only if the facts show that he or she is irreparably corrupt, and that wasn’t the case in light of the trial court’s statements about rehabilitation.

The court of appeal, however, rejected that argument, holding that a trial court could impose an LWOP sentence despite the possibility of rehabilitation, so long as it properly exercised its discretion by weighing all relevant factors, including the defendant’s youth. The appellate court reasoned that a trial court’s discretion under section 190.5(b) had survived all the recent federal and state supreme-court cases on juvenile punishment, including the following:

  • The Eighth Amendment prohibits the death penalty for those who are under 18 years old at the time of their crime. Roper v. Simmons (2005) 543 U.S. 551.
  • The Eighth Amendment allows LWOP sentences for minors only in cases of homicide. Graham v. Florida, (2010) 560 U.S. 48.
  • The Eighth Amendment prohibits mandatory LWOP sentences for minors even in cases of homicide. Miller v. Alabama, 132 S. Ct. 2455 (2012).
  • Under section 190.5(b), there is no presumption in favor of an LWOP sentence over a 25-years-to-life sentence. People v. Gutierrez (2014) 58 Cal. 4th 1354.

Even so, it seems to me that life without the possibility of parole is always the inferior choice.

A ray of hope remains in California. Based on a new 2012 law, a minor may now petition for the 25-years-to-life sentence after serving 15 years of an LWOP sentence. See Pen. Code § 1170(d)(2). If his petition isn’t granted, he gets two more chances to petition for resentencing after 20 and 24 years. See id. But then that’s it. And he has no right to a lawyer to help prepare his petitions. Plus, there are many qualifiers and disqualifiers. So it’s a hard road, but it presents a chance.

Mother of Five Gets New Trial on Capital Murder Conviction

Have you heard of Hannah Overton? She’s spent the last seven years serving a sentence of life without the possibility of parole for the murder of her four-year-old, then-soon-to-be-adopted son. But this September, the Texas Court of Criminal Appeals, which is that state’s supreme court for criminal cases, reversed her conviction and sent it back to the office of the district attorney that prosecuted her. At the original trial, the prosecutor argued that Ms. Overton tortured and killed the boy by force-feeding him salt because she couldn’t cope with his behavior. Apparently, the jury didn’t buy that, but it did convict her on an alternative theory of murder “by omission” on the ground that she did not get him medical attention quickly enough when he fell ill.

The case has created quite a stir, and you can find some local, national, and international coverage of it here, here, herehere, and here.

Ms. Overton has maintained her innocence all along, and after her conviction was reversed, she and her defenders hoped that prosecutors would not re-file the case, but they had no such luck. A couple weeks ago, the district attorney announced that his office would retry her on the original capital-murder charge.

In the meantime, family members say they have faith she will finally come home soon. One of them, Lucy Frost, wrote an open letter recently to the Journal of the American Bar Association, and the text of her letter follows below:

“Regarding ‘The Age of Innocents,’ September, page 54:  I have a family member, Hannah Overton, serving life without parole for a crime that I and others know did not occur. The Texas Court of Criminal Appeals overturned the capital conviction on Sept. 17. Now we await decisions on bail and retrial.

All the post-conviction hearings and appeals in her case suggest prosecutorial misconduct, police misconduct and a tunnel-vision investigation, as well as a medical examiner who appears to me to have been squarely on the prosecution team.

I use the qualifiers “suggest” and “appears to me” because she is legally not yet exonerated. I am 100 percent certain she is innocent. This was a tragic, accidental death of a child—not capital murder.

To say that I have lost faith in our criminal justice system would be an understatement. As a citizen, I pray it can be reformed. Because of Hannah’s case, I have come to know and believe many things, including:

  1. A national innocence board is needed—similar to the National Traffic Safety Board—a federal agency that independently investigates every exoneration and wrongful conviction, then trains and advises all parties on how to avoid the errors that led to them.
  2. The death penalty should be abolished. The system is too vulnerable to errors. I have no doubt that innocent people have been executed in this country.
  3. Prosecutors must be better trained, and there must be oversight of this role. There appear to be no checks and balances on them. Absolute power corrupts, absolutely.
  4. An innocent person must get the advice of an attorney immediately, even when they believe there has been no crime committed and they know they are innocent. The authorities are not going to figure out what happened. Sad but true is the fact that innocence is no protection.”

80,000 Ghosts

John McCain wrote of his time as a prisoner of war, “It’s an awful thing, solitary. It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.”

Tomorrow night, PBS will air a Frontline documentary that looks at solitary confinement through the lens of conditions at one state prison in Maine. You can check your local channel listings here.

In the United States, we hold about 81,000 inmates in some form of isolated confinement at any given time, according to recent numbers from the Justice Department.

True, the practice may be viable or necessary in cases of serious, imminent security risks.

But if we employ the practice beyond that, we should confront the full costs of doing so, and those include the human toll exacted not just on prisoners but on their stewards as well.

We should consider, for example, the opinion of the former assistant chief of mental health for Rikers Island, who wrote about her experiences in the punitive-segregation unit there.

We should recall the story of the three American hikers who were accused of spying in Iran a few years ago; one of them spent 410 days in solitary confinement, and she lived to tell about it.

We should contemplate the words of one inmate who called solitary confinement “the cruelest thing one man can do to another.”

And ask ourselves if the horrors of solitary confinement undermine its use, or when.

A Ten-Year Sentence for $50 of Marijuana?

And to make it worse, the poor soul may have been set up.

Here’s the story. Two cops stop a guy, supposedly for horsing around on his bicycle in the middle of the street. They pat him down, supposedly because he approached them holding out two Xanax pills in his hand and saying, “Do you want to talk to me? This is all I have.” They pat him down, and supposedly, they find baggies bearing about $50 worth of marijuana in all. They arrest him for it, and the guy is charged with possession for sale, convicted, and sentenced to ten years at hard labor.

Here’s where it gets worse. On appeal, the guy argued that he was entitled to a new trial because, get this, the two cops who arrested him were found to have planted cocaine on a different suspect one month after his arrest. By the time of his appeal, the cops had pleaded guilty to criminal charges of perjury and malfeasance in office, and they had been sentenced. Our guy had previously moved for a new trial before his sentencing, which took place just before the cops entered their guilty pleas, but his motion was denied by the trial court. Then, even on appeal, the appeals court affirmed his conviction, holding that the trial court did not abuse its discretion in denying the new-trial motion.

Sorry, buddy. No soup for you.

In case you were wondering, the two cops who planted cocaine received suspended sentences (meaning no jail time) and fines of $2,500 and $5,000, respectively. But the guy who was chucking a few bags of pot—if that—got ten years.

Massachusetts Says No to LWOP Sentences for Children and Adolescents

On Christmas Eve, the Massachusetts Supreme Judicial Court, which is the highest court in the Commonwealth, held that sentences of life without the possibility of parole (or LWOP) for people under the age of 18 were unconstitutional, and it struck them down. The court based its ruling on the Eighth Amendment, and it observed that imposing LWOP sentences on minors was “strikingly similar, in many respects, to the death penalty.”

The decision stemmed from two cases of juveniles who were 17 years old when they committed their crimes. It extends the logic of a case from last year in which the U.S. Supreme Court rejected LWOP sentences for two boys who were 14 years old when they killed. The decision also builds on U.S. Supreme Court cases from 2005 and 2010 that rejected, in turn, the death penalty for minors as well as LWOP sentences for minors convicted of non-homicide offenses.

These decisions make sense, and they serve the interests of justice. As the Massachusetts Court explained in its opinion, an LWOP sentence requires—or should require, anyway—a finding that the offender is “irretrievably depraved”—that he’s a lost cause—and we can’t possibly say that about people whose brain is not fully formed or developed at their age. Although science is driving that point home, moreover, we’ve always known from a common-sense standpoint that children are different from adults, even or especially in the case of an irrational, impetuous teenager who kills.

Life is not only imperfect but flawed, messy, and often tragic, but even in the most extreme cases of juvenile violence, we must know in our hearts that we can’t lock up a kid, throw away the key, and say that he or she is beyond all hope or redemption. As if we know. Perhaps because we do know that the heaviest hammers in the world will not deter the most aberrant excesses of adolescents, or perhaps because we know that, in such cases, the world they were brought into shares some of the blame.

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