Prison Overcrowding and Reality-Based Thnking

49,993.  That's the number of men and women in Ohio prisons according to Alan Johnson in the Columbus Dispatch.  DRC's latest weekly report put the number at 50,115.  Either way, it's a hell of a lot of people.  And it's somewhere in the vicinity of 30 percent over capacity according to Jim Provance in the Toledo Blade.  And they're also seriously understaffed. 

It is, says a new report from the Ohio Civil Service Employees Association (OCSEA), a recipe for disaster.  We have, OCSEA suggests, been here before.

20 years ago, Easter Sunday 1993, things came to a head at the Southern Ohio Correctional Facility in Lucasville.  By the time the uprising was over 11 days later, one guard and 9 prisoners were dead.  OCSEA says conditions are ripe for another riot.

Maybe.

The inmates who took over a part of the prison at Lucasville didn't act just because they were overcrowded.  Human psychology and behavior isn't so simplistic.  If it were, prisons around the country would be in constant insurrection.  There was at Lucasville anger and frustration at the inmate's treatment by guards, by officials.  There were issues of race and religion.  There were health issues, gang issues, prisoner mistreatment and abuse by corrections officers.  None of that is justification, but it helps explain.

Still, overcrowding and understaffing were real problems.  They contributed.  And they're trouble today. From The Blade.

The union blames overcrowding and correction-officer cutbacks in recent years for an increase in violence at prisons, as well as rising crime by inmates against staff. A recent state report suggested that one in six inmates in the state prison system is a gang member.
. . .
DRC spokesman JoEllen Smith said recent reforms to crack down on prison violence are beginning to have an effect.
“Calendar 2012 was the first full year of our violence reduction reforms being in place, and the data reflects that because of these initiatives, we are beginning to see positive results,” she said. “We have seen a 7.2 percent reduction in total violent rule infractions, and the number of disturbances also decreased.”
Assaults and harassment rule infractions, however, are up and remain an area of focus, she said.

This is, of course, 21st Century America.  Expertise is to be avoided, actual knowledge ignored.  In particular, nuance is to be relegated to some hidden corner where it can remain out of site.  Simplicity and stupidity reign.

And so The Blade offers its readers a chance to vote on the solution to Prison overcrowding.  it's multiple choice, of course, and you can only vote for one of the options.  You know, the one that will solve the problem.  

Before we examine the choices, we need a moment of focus.  The problem at hand is prison overcrowding.  The specifics of what The Blade puts to its readers:
Prison overcrowding is plaguing Ohio, and America.  What's the solution.
Got that?  Good.  Now, a reminder of the Ohio numbers.  Roughly 50,000 inmates.  30% over capacity.  That means that eliminating overcrowding requires either a massive increase in the number of prison facilities (and guards and whatnot) or a decrease of something like 11,500 prisoners.
OK, ready?  Here are the choices The Blade offers.  Remember, you can only pick one.

• Build more privatized prisons.
• Ending non-violent crime incarceration.
• Stopping the treatment of medical issues, such as addiction, as criminal issues.
• Quicker and more frequent capital punishment.
• Better education and values instilled in upcoming generations.

How'd you vote?
652 of The Blade's readers have voted so far.  There's no majority, but here's how the percentages break down.  And think about what they say.

• Build more privatized prisons - 9%
• Ending non-violent crime incarceration - 14%
• Stopping the treatment of medical issues, such as addiction, as criminal issues - 19%
• Quicker and more frequent capital punishment - 38%
• Better education and values instilled in upcoming generations - 20%

 Let's consider for a moment.  We have this immediate, massive, and incredibly dangerous problem of 11,5000 too many prisoners in Ohio.  What to do?

The least popular solution is to provide more cells for them.  Releasing the folks who aren't dangerous appeals to about 1/7 of the voters.  Just under 1 in 5 thinks we should stop locking up people because they're ill (4 out of 5 favor that?  Don't get sick in Ohio, folks.)  About 1 in 5 think the way to end the overcrowding problem now is to instill good values (I suspect most of that means religious ones, though I don't actually know that) in future generations, however one might do that.

And the plurality vote, by a wide margin?  Kill 11,500 inmates.  Oh, sure, there are only 144 or so folks on death row in Ohio.  And there are constitutional constraints on who we can actually execute.  But really, they're all pond scum or they wouldn't be in prison.

OK, I'm being a bit unfair.  A bit.  Still.

Thomas Jefferson said,

I tremble for my country when I reflect that God is just.

The slaveholder was referring to slavery.

Commerce between master and slave is despotism. Nothing is more certainly written in the book of fate than that these people are to be free.

And he added,

Establish a law for educating the common people. This it is the business of the state and on a general plan.

Whatever our view of God, justice, and slavery.  We remain as a people committed to ignoring the merits of education.  You know reality-based decisionmaking.

The lunatics, as they say, are running the asylum.

Sigh.

And throw away the key - Part II

There really are some basic principles on which we can pretty much all agree.

• Crime is bad.
• Preventing crime is good.
• Doing things that will actually prevent crime is better than doing things that only pretend to prevent crime.

Yeah, even that last one. The politicians go for the pretense not because they think it's better to pretend but because it's easier and (politically) safer.

If we accept those principles, then the question is what will actually prevent crime and how do we go about doing those things.

Our basic model, for the past few decades, has been to lock people up and throw away the key. We know, when we care to admit it to ourselves, that it doesn't work, that there are better alternatives. The problem with that approach, as I've said before, is that criminal law comes in on the back end, after the crime. If you want to stop crime, you have to look at prevention along with punishment.

This isn't a new idea, but it's been gathering force. Virginia Senator James Webb has been pushing it in Congress. The Constitution Project coordinated some 25 organizations in putting together a catalogue of suggestions for being Smart on Crime.

Some of what we should do is obvious. Decriminalize some behavior. Shakespeare has it right in Measure for Measure. In the Duke's absence, Angelo has been left in charge of Vienna, and is determined to enforce the law against fornication (and to violate it, since he's a hypocrite, but that's a separate, albeit related, matter). The obvious question comes up from one of the subjects:

Does your worship mean to geld and spay all the youth in the city?

What people will do, regardless, cannot usefully be made criminal. Consider marijuana. The battle is lost. Decriminalize completely. Forget making it only a citable offense. It shouldn't be an offense at all. You can't successfully criminalize behavior that's too widespread and viewed among large percentages of the population as both harmless and desirable.

In any event, it's in this context that Mark Kleiman has been invited to do a week of guest blogging at The Volokh Conspiracy.

Thanks to Eugene’s generosity, I will have access to this space all week to expound what I see as a great moral and practical imperative: to put our new knowledge of what controls crime into use, with the goal of achieving “half and half”: half as much crime and half as many people behind bars in a decade as we have today.

Here's the short version:

The principles of effective deterrence are straightforward, though making actual institutions implement those principles is complex. Punishment should be swift and certain rather than severe; those subject to it should know precisely what actions will lead to punishment; efforts should be concentrated, rather than dispersed, to enjoy the benefit of the positive-feedback process in which reduced offending leads to increased deterrence.

Since punishment is always a cost and not a benefit, we should also be alive to the many possibilities to reduce offending without punishment: everything from a later school day (to shorten the burglary-friendly time period when adolescents are out of school but grown-ups have not returned from work) to removing highly criminogenic environmental lead to sending nurses to visit first-time mothers in need of coaching.

The long version is in his new book. I don't expect to agree with all of it, maybe not even with most of it, but I'm looking forward to reading it.

We cannot lock everyone up. Acknowledge that truth and you have to look at what else is available.

KIDS

The title of this post is the title of the song in Bye Bye Birdie, you know (if you're of a certain age, anyhow), the one Paul Lynde sang on Broadway and in the movies, the one with the questioning refrain, "What's the matter with kids today?" In the musical, it was an expression of parental frustration. The kids were, ultimately, just fine.

Back in the day (almost any day, I suspect), in response to complaints about how terrible our generation was - unlike the decency and respectfulness of our parents' generation, people circulated blocks of quotations (everything from the Bible to Hitler, and I've been looking for the Hitler quote to post a link but haven't found it - please pass it along if you've got it) showing that every generation has said this about the next.

In the 50s, we saw that generation gap reflected odd ways in the popular culture, with young people presented as threatening the safety and social norms of a prior generation in films like The Wild One and in the rise of rock 'n' roll (also racially tinged) and its careful and qualified admission into the mainstream through, for instance, the near censoring of Elvis' hips on The Ed Sullivan Show. In the 70s it was showing up as theme in such television shows as All in the Family. By the 80s, the generation had shifted so that the conservative child in Family Ties
proved the threat to his liberal parents.

And of course it continues today. Sometimes the kids are fine, sometimes they're not. But always there's the threat. "What's the matter with kids today?" And what will we do about it?

One option, one we always turn to when we're scared, is the penal code. So a number of jurisdictions have tried to criminalize sagging pants. Others have brought (or threatened to bring) felony charges for sexting (see here and here and, self-referentially, here, for instance).

And then there's the matter of punishment.

In Roper v. Simmons, the Supreme Court held that because juveniles lack the maturity and self-control of adults, they could not, consistent with the Eighth Amendment be subjected to the death penalty. This coming term, the Court will be looking at two cases from Florida (Graham v. Florida and Sullivan v. Florida that ask whether the Eighth Amendment prohibits a sentence of life without parole for juveniles convicted of non-homicide offenses.

The number of children currently serving LWOP sentences almost defies comprehension. Back in 2006, Doug Berman blogged about the problem (thanking Howard Bashman for a citation to a story in the Philadelphia Daily News which seems no longer to be available). Berman also provided the link to this report from Amensty International and Human Rights Watch. It's chilling.

And now there's the problem of the real kids. A new report issued by The Lyndon Johnson School of Public Affairs at the University of Texas, From Time Out to Hard Time: Young Children in the Adult Criminal Justice System, focusing on children under 13 being tried and sentenced as adults. Yesterday's NY Times carried this editorial urging Congress and the states to enact legislation to restrain the trend. Doug Berman quoted the editorial at length and linked to the report. Arbitrary and Capricious linked to both the editorial and the report. And now I've done it.

I'm not naive. There are kids who've done terrible things. But they're kids. It's the grownups who are supposed to exercise restraint.

So, finally, here's the answer to the question Paul Lynde asked:

What's the matter with kids today?

Adults.

Home Sweet Prison

There was an episode of M*A*S*H in which (and I'm doing this from memory, so I probably have some details wrong) Hawkeye was placed on house arrest in his tent and Frank Burns taunted him until, at the end, Burns was under house arrest with Hawkeye taunting him. What I recall, and why I'm recounting this, is the basic taunt, which (although probably wittier) was something like, "I can go out and I can come in. In/out/in/out/in/out."

This morning's subject is prison. And the central fact of prison is the control. No matter what program and facility is there, no matter what the level of safety and security, no matter what the level of confinement, prison is ultimately about control. Some places are better, some worse. All are bad places to be precisely because inmates have no control. They can't come and go as they wish. Never.

There are other controlling institutional settings, of course. School, the military, the scouts (I quit the cub scouts because I couldn't stand the regimentation). But none of them has the level of absolute control that prisons do. Try to walk away from school and they may drag you back, but they don't shoot you as you go. Even in the military they're not supposed to do that on the spot. But see how the guards react when you try to climb over the concertina wire at a typical prison.

Here in Ohio, the prisons are operated by the Department of Rehabilitation and Correction. But they do little in the way of rehabilitation and correction itself is an iffy thing. Mostly they're about confinement. Put folks away for a time and hope for the best. In an earlier post I looked at some of the problems with that, and an article by Jim Lewis in today's N.Y. Times Magazine leads to a new take.

It takes off from the architecture of a prison in Austria where the prisoners (and they're not just the white collar types who end up at places the public derisevely and false describes as "Club Fed") live

in units called pods — groups of 15 one-person cells with floor-to-ceiling windows, private lavatories and a common space that includes a small kitchen.

The cells, or at least some of them, have balconies. There's green space and openness. It is

a striking building, perched on a slope outside the small Austrian town of Leoben — a sleek structure made of glass, wood and concrete, stately but agile, sure in its rhythms and proportions: each part bears an obvious relationship to the whole. In the daytime, the corridors and rooms are flooded with sunshine. At night, the whole structure glows from within. A markedly well-made building, and what is it? A prison.

Lewis arrives at the prison in the company of Joseph Hohensinn, the architect.

[A]s we approached, the building looked both idle and inviting, like a college library during winter break — or it would have, anyway, were it not for the razor wire coiled along the concrete wall of the yard and the sentence carved below it, a line from the International Covenant on Civil and Political Rights (which the United States signed and ratified) that reads: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

But, and ultimately, it's a prison, a place of punishment. When Lewis asked one of the prisoners if he was surprised at how nice the place was,

he said no; what surprised him was that he’d been caught in the first place.

And that, of course, is the point, or at least one of the points. Prison sucks, even the best prisons. And while prisoners surely prefer being in less horrific places, prison is, ultimately, prison.

Interestingly, the "nice" prison doesn't even cost much more than the traditional concrete and steel bunker model. Why?

[A]s a rule, the more a corrections center bristles with overt security, with cameras, and squads of guards, and isolation cells, the more expensive it’s going to be.

Our approach to prisons is built on one of two assumptions (or maybe both):

1. If you make the place horrific enough, nobody will return.
2. Because prisoners are being punished, it's important that they be deprived of anything marginally decent.

There are two problems with both of these assumptions, as scholars, corrections experts, judges, wardens, and even the line prison guards know

1. The vast majority of the folks in prison will someday be released, and roughly two thirds of those will reoffend. The Torquemada model of prisons doesn't help prevent that - in fact, by breeding violence and turmoil it likely makes it worse.
2. It's easier to maintain control, and therefore safety and security, within prison when you are able to offer reward as well as punishment to the prisoners and when the conditions are not so awful that the threat of worse isn't much of a disincentive.

We may not need to build prisons like the one near Leoben, but as if we're going to continue to lock up a major portion of the population, it's worth thinking hard about how we ought to do it.

And throw away the key

So when it comes right down to it, Americans have decided that they don't like Gitmo, but they like having alleged terrorists and Al Quaeda and Taliban fighters in their local prisons even less.

Unless, as AP reported, they happen to live in Hardin, Montana, where the town built a new jail with the hope that they could rent the bed space out and make it an incarceration hotel. The jail, a medium security facility that the town fathers say can be easily upgraded to maximum, sits empty, the bonds issued to pay for it are in default. Taking in some prisoners would be a boon to the economy, and really, what's to worry. As one local said,

"I'm a lot more worried about some sex offender walking my streets than a guy that's a world-class terrorist. He's not going to escape, pop into the IGA (supermarket), grab a six-pack and go sit in the park."

So the city council voted, without dissent, to take all the prisoners from Guantanamo.

Or unless they live in Florence, Colorado, home of the only federal supermax prison, known as Alcatraz of the Rockies. According to Reuters, The good people of Florence aren't any more concerned than the folks in Hardin. And they know what it's like to have serious bad guys in their local prison. Terry Nichols is there. So is Ted Kaczynski. And 1993 World Trade Center bomber Ramzi Yousef and Zacarias Moussaoui. Oh, the prison is almost full, but they can build an addition or transfer some of the current prisoners.

But as Dahlia Lithwick reminds us, the prisoners at Guantanamo, while perhaps the most attention-grabbing, are really the least of our prison problems. Our real prison problem: We lock up too many people. James Webb, Senator from Virginia, has gathered some of the data. Lithwick summarizes it this way:

The United States, with 5 percent of the world's population, houses nearly 25 percent of the world's prisoners. As Webb has explained it, "Either we're the most evil people on earth, or we're doing something wrong." We incarcerate 756 inmates per 100,000 residents, nearly five times the world average. At this point, approximately one in every 31 adults in the United States is in prison, jail, or on supervised release. Local, state, and federal spending on corrections now amounts to about $70 billion per year and has increased 40 percent over the past 20 years.

You know, that's descriptive, but it doesn't capture just why it's all a problem. Nor does this:

The Justice Department estimates that 16 percent of the adult inmates in American prisons—more than 350,000 of those incarcerated—suffer from mental illness; the percentage among juveniles is even higher. And 2007 Justice statistics showed that nearly 60 percent of the state prisoners serving time for a drug offense had no history of violence and four out of five drug arrests were for drug possession, not sales. Webb also reminds us that while drug use varies little by ethnic group in the United States, African-Americans—estimated at 14 percent of regular drug users—make up 56 percent of those in state prison for drug crimes. We know all of this. The question is how long we want to avoid dealing with it.

I mean, all of that is terrible. The data here show that our approach to crime is almost uniquely punitive, financially wasteful, racist in impact even if not in intent, and senseless. But so what? Is there really any reason we shouldn't lock up non-violent drug offenders?

In fact, there is. Someday we release them. And we've virtually assured that they will not be productive members of society once we do. They'll be unskilled, unemployable, angry. They'll have been trained to lash out at the slightest provocation, to take what they can when they can, to become more dangerous than when they went into prison. And we won't be reducing crime, anyway.

What's that last? Surely if you just lock everyone up forever, crime will go down? I suppose that's true in absolute terms. If you lock up everyone, there'll be nobody left on the outside to commit crimes or be victimized. But we won't do that. And here, from the National Law Journal, is the bottom line. Locking people up isn't the most effective way to reduce crime. Rather, treatment, rehabilitation, and a recognition that some things just can't be well-handled by the criminal justice system.

Look, the criminal courts, the justice system, work on the back end of the problem - after the crime. If you want to stop the crimes from occurring in the first place, you have to go about it differently. You have to look at prevention. You have to provide alternatives to crime. You have to provide education and jobs and hope. You have to change cultures.

They made a lot of fun of it, and it never really happened, but one idea that Bill Clinton had that was clearly right was midnight basketball.