Innocence, even after “proven” guilty

We need to be sure that every single person we are imprisoning should actually be there. We should not be imprisoning people because they can’t pay a fine or can’t afford adequate representation. And our society certainly shouldn’t be imprisoning innocent people.

A 2014 study published in The Proceedings of the National Academy of Sciences estimated that about 1-4% of U.S. death row inmates are wrongfully convicted.

At least one of its authors believe that this may mean tens of thousands of Americans have also been wrongfully imprisoned on lesser charges.

The average time served for the 1,625 exonerated individuals in the registry is more than nine years.
[…]
How many people are convicted of crimes they did not commit? Last year, a study I co-authored on the issue was published in the Proceedings of the National Academy of Sciences. It shows that 4.1 percent of defendants who are sentenced to death in the United States are later shown to be innocent: 1 in 25.

Death sentences are uniquely well-documented. We don’t know nearly enough about other kinds of criminal cases to estimate the rate of wrongful convictions for those. The rate could be lower than for capital murders, or it could be higher. Of course, in a country with millions of criminal convictions a year and more than 2 million people behind bars, even 1 percent amounts to tens of thousands of tragic errors.

 
While some members of the public may be concerned about the possibility of guilty people walking free, this concern should be addressed by increasing public resources for investigations and prosecutions of unsolved crimes or crimes with insufficient evidence, rather than by erring on the side of wrongful imprisonment.

death-penaltyThere can be no justice in a justice system that frequently imprisons the wrong people because of poor or non-existent representation, racism, or other factors. Nor does wrongful imprisonment keep us safe, given that it may mean a real offender is instead walking free to commit new crimes.

 

December 2, 2015 – Arsenal For Democracy Ep. 152

Posted by Bill on behalf of the team. End notes written by Kelley.

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Topics: Big Ideas for Reforming American Governance — Criminal Justice and Prison Reform. People: Bill, Kelley, Nate. Produced: November 29th, 2015.

NOTE: Our show is now officially on hiatus until September 2016; details at the end of the episode. Thank you all for listening.

Episode 152 (51 min):
AFD 152

Discussion Points:

– Overburdened courts and public defenders
– Systemic, compounding racial bias in the criminal justice system: Arrest, representation, pleas, juries, sentencing, parole
– Mandatory minimums: What went wrong?
– The purpose of prisons: Inmate storage or rehabilitation?
– The economics of prisons: Let’s build local economies not dependent on prisons
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Criminal justice and prison reform

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Prisons, like many institutions under our governance system, should not be privately owned or operated. Corrective rehabilitation or lifetime imprisonment are public functions — the role of society as a whole to be implemented by the instrument of our government. They should not, therefore, be privately handled. I don’t believe we should be introducing private profit motives into public functions. That distorts public policy with the goal of making money off of it, rather than doing it in the best and most responsible manner.

That is particularly vital in the context of our correctional system. We need to be finding ways to reduce revolving-door recidivism and keep people out of our jails and prisons in the first place. That’s much a better course of action than finding ways to make a buck off their internment whether by volume of inmates or cheaper treatment. Part of “doing time” for lower-level offenses should be about learning from mistakes and learning ways to be a more productive and positive citizen. It should not be about getting traumatized and abused (whether publicly or privately) every day for an arbitrary number of years and then turned loose for a brief span before re-arrest.

We also need to be sure that every single person we are imprisoning should actually be there. We should not be imprisoning people because they can’t pay a fine or can’t afford adequate representation, and we certainly shouldn’t be imprisoning innocent people. We need a judicial system that is both speedy and fair to accused and victims alike. We have a fairly adversarial system of criminal law in this country, but we need fair-minded judges who are trying to achieve justice for all — not trying to be “tough on crime” for its own sake. They should be the last line of defense for anyone caught in the middle of a system bigger than themselves.

President Obama stands up for second chances

Last week, on Monday, July 13th, President Obama announced that he would commute the sentence of 46 Federal prisoners, non-violent drug offenders who he believed were serving punishments disproportionate to their crime.

In his Facebook video to explain his decision, the President noted:

“These men and women were not hardened criminals, but the overwhelming majority had been sentenced to at least 20 years.

I believe that at its heart, America is a nation of second chances. And I believe these folks deserve their second chance.”

 

Barack Obama signing clemency grants to convicted non-violent drug offenders with disproportionate sentences, July 2015. (Credit: The White House)

Barack Obama signing clemency grants to convicted non-violent drug offenders with disproportionate sentences, July 2015. (Credit: The White House)

Obama’s decision is not a singular event, but part of a series of events throughout his presidency aimed at bringing awareness to some of the broken parts of the American criminal justice system.

Since taking office, Obama has commuted 89 men and women serving time, 76 of whom were nonviolent drug offenders.

On Tuesday, July 14th, President Obama addressed the NAACP on the need for reform in our criminal justice system.

The Marshall Project notes, “no sitting president has ever publicly spoken at such length and in such detail as Obama now has about the persistent problems of crime and punishment in this country.”

Obama’s no-holds-barred speech touched upon everything from the over-sentencing of non-violent drug offenders to racial injustices in the criminal justice system to the school-to-prison pipeline to the detriments of solitary confinement.

He offered specific and necessary reforms to improve our criminal justice system, such as lowering or eliminating mandatory minimums and addressing crime prevention at the community level. (Check out more details here.)

Then, on Thursday, July 16th, Obama became the first sitting president to ever visit a Federal prison. There, he met with six, non-violent drug offenders who explained their hopes for the future and the obstacles they’ll have to overcome as they eventually re-enter American society.

Obama’s recent push to call attention to the failings of our justice system may just be working.

While there is still a wide divide between philosophies on justice and a general overuse of rhetoric which calls for politicians to be “tough on crime”, there is currently bipartisan support for bills in the House of Representatives and the Senate which would reduce the number of low-level drug offenders in prison by reforming prison sentencing and creating pathways for early release.

During his speech to the NAACP, Obama made an impassioned plea that all Americans should pay attention to if they desire to make common sense changes to make our criminal justice system more fair and effective.

“While the people in our prisons have made some mistakes, and sometimes big mistakes, they are also Americans. And we have to make sure that as they do their time, and pay back their debt to society, that we are increasing the possibility that they can turn their lives around.”

 

Justice Kennedy asks us to rethink U.S. prisons broadly

U.S. Supreme Court Justice Kennedy not only wants the Court to hear a case as soon as possible on the constitutionality of solitary confinement, in the aftermath of the suicide of Kalief Browder, but he wants lawyers to start thinking more seriously about the prison system in general when they’re putting people there:

But Kennedy’s concurrence also seemed to be directed toward the American legal community, whose disengagement from prison issues he has previously lamented. “In law school, I never heard about corrections,” he told a congressional hearing on March 23, two weeks after the Davis oral arguments. “Lawyers are fascinated with the guilt/innocence adjudication process. Once [it] is over, we have no interest in corrections. Doctors and psychiatrists know more about the corrections system than we do.”

Although no one realized it at the time, his brief soliloquy on the crisis of “total incarceration” in March was a preview of today’s concurrence. “Too often, discussion in the legal academy and among practitioners concentrates simply on the adjudication of guilt or innocence,” Kennedy wrote. “Too easily ignored is the question is the question of what comes next. Prisoners are shut away—out of sight, out of mind.” Consideration of these issues, he stated, “is needed.”

 
I’ve been thinking about this (the theme Kennedy highlights in the quotes above) a lot while watching legal dramas. The lawyers on both sides plea-bargain in abstractions with no real sense of what they might be condemning the accused to, even for a few years. I don’t think it’s much different in the real world. Even a year or two in general population, let alone solitary confinement, is a pretty strong punishment, and I suspect many lawyers don’t think too hard about that.

Which is not to say that all prison sentences (or even most) are somehow inherently unjust, but rather that we need serious prison reform to ensure that prisons are actually constructively “correcting” and proportionally punishing criminal actions, without being excessive or abusive. We’ve got a hell of a long road ahead of us considering our society still thinks “prison rape” is a hilarious subject, not a serious problem, or that abuses by guards are irrelevant even when someone is serving time for a very minor offense because prison should be as harsh as possible.

We have a very destructive system that is killing people and destroying lives permanently, even for minor or non-violent crimes, without any consideration toward rehabilitation or even true justice.

In Mass., Goldman wants in on prison profit stream

new-york-stock-exchange-200Recently, in some states, Goldman Sachs has been issuing “social impact bonds,” a new financial instrument that purports to help cure social ills with Wall Street’s “help.”

In this case, they’re loaning $9 million to the state of Massachusetts to help support a Boston organization that tries to help young offenders from bouncing back into prison. (Reducing young recidivism is a good social goal, obviously, and would have a ripple effect on crime prevention.)

If the effort reduces the number of days past inmate spend back in prison — which would save the state money — the savings would go back to Goldman Sachs, up to a million dollars. If the effort really pays off (above and beyond the bond repayment terms), then the state would get to keep the money. Of course, if the effort doesn’t hit the minimum targets needed to generate enough savings, Goldman Sachs would still get interest payments on the bond, but would lose the principal loan ($9 million or however much of it couldn’t be repaid due to insufficient savings).

As private investments in the prison industry go, it’s not the worst thing in the world. At least the profit incentive is toward rehabilitation rather than toward further imprisonment in the way privatized prisons are. But the question is why is it even necessary to involve the private sector middleman in the first place?

The state could pay for the upfront cost of the program through tax revenues (if it were willing to raise taxes, of course), instead of taking a loan, it would keep all the money and not end up paying Wall Street no matter how things turn out. That money could be reinvested into expanding the successful efforts even more, thus benefiting all taxpayers.

In my opinion, the job of corrections and the rehabilitation of young offenders is part of the role of government. The private sector is free to help, but it should be an add-on to the process, not a redundant profit diversion mechanism in the middle.

Moreover, Goldman Sachs has a pretty notorious history of cooking the books (BBC video) to make money while temporarily making their loan recipient governments look like a success story until Goldman’s gotten all its money back.

And that’s not a good track record to have, going into this plan.

 
h/t Universal Hub

Ending solitary confinement

The previous Colorado chief of Corrections was shot and killed in his own home by a former inmate who had spent years confined in solitary confinement (a punishment which is pretty well known at this point to make most people very mentally unstable), after the latter man was released from prison straight out of solitary when his sentence ended.

The victim, ironically, had expressed concern about the state’s excessive use of such treatment (and in particular the habit of releasing people directly without transition like that) and had cut the number of solitary inmates in half before his death.

To me it has long seemed that solitary confinement is probably one of the most heinous practices in the American prison system, and one that should probably be banned at least for general use under the 8th Amendment’s prohibition on “cruel and unusual punishment.” It must be particularly traumatic and damaging for inmates who are serving less than a life sentence and are eventually supposed to be released back into ordinary society.

The new executive director of Corrections, Rick Raemisch, is so opposed to the practice that he is using the job to campaign against it. As he said, “Everything you know about treating human beings, that’s not the way to do it.”

Raemisch even spent 20 hours in solitary himself in January to protest the practice. It’s part of his broader agenda to shake up the state’s correctional system so it might actually rehabilitate people rather than worsening the problem.

All of it calls to mind a biting satirical article from The Onion not long ago, headlined: “15 Years In Environment Of Constant Fear Somehow Fails To Rehabilitate Prisoner.”