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A Century of Reasons: No More Doziers

By Liz Ryan

A gruesome report  released last month detailed the results of an investigation into the deaths of more than 100 boys buried on the grounds of the Florida State Reform School, also known as the Florida Industrial School for Boys (and more recently as the Arthur G. Dozier School for Boys).

The January 18 report, submitted to the governor of Florida by the Florida Institute for Forensic Anthropology & Applied Sciences at the University of South Florida, underscores a century of reasons why the youth prison model should be dismantled.

Located in Marianna FL, the Dozier School opened in 1900 and finally closed in 2011.  Youth prisons like Dozier have been—and still are---the signature feature of state juvenile justice systems. They consume the lion’s share of state juvenile justice spending and are grounded in an approach that came into existence nearly 200 years ago.

The report makes clear why the youth prison model in juvenile justice, embodied by Dozier, should be replaced with less costly and more effective community-based alternatives to incarceration.

There are many reasons—but one stands out.

It isn’t safe.

Many of the causes of death at Dozier were unknown: Records are missing and location of burials is not known. According to the report, “This absence of record keeping and absence of grave markers suggest intent to obfuscate the true number of burials located at the School and to hinder later potential investigations into the true causes of specific individuals’ deaths.”

The known factors leading to the boys’ deaths were traced to fires, physical trauma, drowning, disease, and deaths following attempted escapes.  Youths were flogged, and placed in isolation, including one instance of a youth dying form being placed in a sweat box.

While the Dozier report details abuse from decades ago, abuse is still all too common today in youth prisons---and it is increasing, according to Maltreatment of Youth in U.S. Juvenile Correctional Facilities.

Young people in youth prisons throughout the U.S. today experience intolerable levels of physical abuse, sexual violence, excessive use of physical and chemical restraints, and overuse of isolation.  They are often subjected to solitary confinement.

Another reason: It isn’t fair.  The youth prison model disproportionately impacts youth of color.

The Dozier report highlights the fact that the vast majority of the boys buried at the school (67 percent) were African American.

The most recent data from the U.S. Department of Justice, as shown on the Haywood Burns Institute’s Unbalanced Justice map, reports that African-American youth are five times more likely to be incarcerated than white youth; Native American youth are more than three times as likely to be incarcerated than white youth; and Latino youth are two times more likely to be incarcerated than white youth.

Reason # 3: It is over-used.

Originally designed to house children with delinquent offenses, Dozier also housed young people for truancy, running away and “incorrigibility.” Children in the child welfare system were also housed there.

According to the latest U.S. Department of Justice data, over two-thirds of individuals held in youth prisons are confined for offenses such as status offenses (running away, skipping school), technical violations, public order, drug, and property offenses. These young people do not pose a risk to public safety and could be more effectively served in the community.

Finally, reason #4: It breaks crucial family ties and penalizes families.

The extent of the loss of family ties for the children at Dozier has yet to be fully told.  The report alludes to the fact that so many of the children couldn’t afford the bus fare home and had to work in labor camps to raise the needed funds to go home, and as we now know, dozens of boys never made it home.

Youth prisons like Dozier are scattered throughout the U.S. and are located in similar places far from youths’ families, with limited access and visits. Families are often excluded from involvement in their children’s treatment plans but assessed the daily cost of incarceration.  (Every state allows, with most requiring, parents to be charged for the cost of their children’s incarceration.)

With the dramatic drop in youth incarceration rates in the last decade, youth prisons are obsolete and should be closed. That would free up millions for community-based alternatives.

Communities can hold youth accountable and help them realize the consequences of their actions without resorting to incarceration in youth prisons, like Dozier, that harm, maim, even kill children.

We can and must do better. No more Doziers. Our children deserve no less.

Liz Ryan is CEO of the Youth First! Initiative and a frequent commentator on TCR. She welcomes comments from readers.

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Police Chiefs Send the Right Signals on Use-of-Force

By Samuel Walker

Who would have thought that American police chiefs would have a better position on officer use-of-force than the U.S. Supreme Court?

Well, it’s happening.

The Police Executive Research Forum (PERF), a professional association of chiefs and police managers, last week  released a policy paper containing 30 “Guiding Principles”  that members should adopt on the use of force, which it said would hold police to a “higher standard” than the legal requirement of the Court’s 1989 ruling in Graham v. Connor.

That ruling, said PERF, “does not provide police with sufficient guidance on use of force.”

More specifically, PERF said police departments should adopt policies and training “based on sound tactics, consideration of whether the use of force was proportional to the threat, and the sanctity of human life.”

The Graham v. Connor decision was more ambiguous.  It held that force is justified when it is “objectively reasonable” under the immediate circumstances. Over the years, courts have consistently interpreted that phrase to give the police officer the benefit of the doubt. If an officer could reasonably see a threat in a situation, force is justified.

Pundits have labeled many force incidents “lawful but awful.”   That is to say, they were justified by the Court, but utterly unreasonable by common-sense standards of decency and proper police conduct.

Lost in the Court’s reasoning is the idea that police use-of-force should be a last resort, justified only in the most extreme situations where there is an imminent threat to the life of the officer or someone else. And it gives no consideration to alternative steps an officer could have taken to resolve the incident without force, or what tactics the officer could have taken earlier in the encounter that might have avoided a confrontation.

The PERF policy paper is a breath of fresh air in the context of the current national police crisis.  It moves police thinking beyond the idea of doing simply what is lawful, and instead aspires to doing the best that is possible—best for the community and best for the police themselves.

And it also makes clear that the first step is up to the police themselves.

In its introduction to the guidelines the paper declares: “The policy changes must be backed up with thorough, integrated retraining of all officers.”

The police chiefs who are members of PERF have been moving in a very positive direction for several years.

PERF issued a challenging critique of police use-of-force training last August. In 2012 it issued an outstanding report on the de-escalation of encounters with citizens.  Meanwhile, the report of the President’s Task Force on 21st Century Policing , released last year,  embraced the same new ideas.

The new PERF policy paper also includes a path-breaking recommendation on the “Duty to Intervene,” declaring that “officers need to prevent other officers from using excessive force.”

In recent years, some police departments have adopted policies requiring officers to report to supervisors uses of force by other officers. That policy has been regarded as perhaps the first significant step toward breaking down the traditional “blue wall” or “code of silence” under which cops never reported on other cops. The requirement that officers act to stop incidents of unnecessary force definitely takes “policing to a higher standard.”

Think about the infamous 1991 beating of Rodney King by Los Angeles police officers. A number of officers were present at that incident, including the four who were eventually charged in connection with the beating (three were acquitted). Not one stepped forward to stop the beating. That included sergeants who have a duty to effectively supervise officers at such incidents and step in stop inappropriate or unlawful conduct.

Since the tragic events surrounding the fatal shooting of Michael Brown in Ferguson, Missouri in August 2014, the country has experienced a seemingly endless serious of police crises involving the deaths of African-Americans at the hands of the police.

The nation is searching for ways to end this crisis. The PERF policy paper, informed by experience and good judgment about policing, is the best roadmap we have.

Samuel Walker is Professor Emeritus of Criminal Justice at the University of Nebraska at Omaha, and the author of 14 books on policing, civil liberties and crime police. He welcomes comments from readers.

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To Change Police Behavior, Start With the Sergeants

By Joseph Gunn

Today there is increased tension between the police and the community served by law enforcement. Compounding the tension is the belief by many in the community that police and prosecutors are incapable of investigating and adjudicating out-of-policy actions by police officers.

Most police administrators have responded to this tension by increasing training, adopting more rigid policies, and by stepping up monitoring of field operations. Such a process, however, amounts to “top-down” change— with chiefs dictating policy and tasking subordinates to carry out their mandate.

But the fact is, any change in police policy or behavior is doomed to fail unless a police department gets the full buy-in and cooperation of its most important rank: The sergeant.

The sergeant is the only ranking officer in the field who exercises hands-on supervision on a continuing basis. It’s the sergeant who decides whether or not a patrol officer is conducting himself in a professional manner. He or she must train, critique and, on occasion, discipline subordinates. And it is the sergeant who ensures that department policy is implemented.

Many sergeants in police agencies around the U.S. are capable of fulfilling this task. However, there are too many who fail. And when they fail, the organization fails.

The sergeant’s importance to the future of police reform has been overlooked too long. Police agencies must take a closer look at the process by which an officer is promoted to this position.

In most jurisdictions, a written and oral examination is conducted in order to establish a promotion pool. The primary factor considered is the applicant’s record and performance as a field patrol officer. Those who excel are given the highest score and, eventually, the promotion.

Does this system guarantee that the new sergeant will be a competent supervisor? Sometimes.

But more often than not, the answer is no.

Many excellent police officers become sergeants for the wrong reasons. Instead of having a desire to lead, they seek promotion to increase their pay. Of course, no would argue with anyone who is seeking more money.  But when I speak with many sergeants, they reveal frankly that they loved their previous assignment as a patrol officer, and would have preferred to stay in that position if not for the additional pressures of family and budget that made them seek a higher income.

Many officers thrust into the sergeant ranks have no desire or inclination to give orders to their previous peers, don’t want to administer discipline, and would prefer to remain popular with their subordinates. As a result, the entire department’s performance and reputation suffers.

One way to address the problem is to establish two hiring tracks in all police departments. One would be for police officers, and the other would be for management, including the ranks of sergeant and above. Such a system, which has been used by the military, would ensure that supervision and management of police officers is executed at the highest level.

Let’s examine the management track first.

Applicants would be selected based on their desire and capability to lead. Training should be extensive, and while the core concepts of field patrol would be taught, a more intensive block of instruction would highlight supervisory and management techniques including leadership, training, discipline, and administrative responsibilities. Successful candidates would immediately begin their employment as a sergeant.

Do Sergeants Need Beat Experience?

Critics  will insist that you cannot be a sergeant without field police officer experience. I disagree. It is not necessary to have the skills of a seasoned patrol officer. It is only necessary to recognize those skills, to be able to supervise by monitoring an officer’s actions, and to offer constructive advice, training and, in some cases, discipline.

Sergeants who excel will then be given the opportunity to rise up through the ranks through competitive examinations. West Point, Annapolis and the Air Force Academy have utilized this system exceptionally well and they graduate only those who desire to lead and serve.

The field patrol officer track must also radically change. It must be greatly enhanced to attract and retain the most qualified officers. A field patrol officer should be able to attain, based on tenure, expertise and competency, a salary which would be on par with a Lieutenant, all without having to leave to leave his or her field assignment.

This will ensure that the best officers remain in the job they love and excel. Officer morale will improve, and the benefit to the department and the community is enormous.

Field patrol officers should also be given an opportunity to join the Management Track if they desire. This would be equivalent to the Army’s Officer Candidate School. A field patrol officer must be motivated to lead and this trait must be recognized by management before they would be allowed to cross over. These officers must attend training to enhance their leadership skills before being allowed to serve in a supervisory position.

My proposal to initiate a two-track system will be expensive. But the cost will be offset by a presumed reduction in the millions of dollars that a city pays out because of police errors or misconduct. Having a trained sergeant in the field should greatly decrease these awards.

More important, how do you measure the contribution that increased police efficiency will make towards strengthening public safety and public confidence?

A two-track system is a radical change, but I'm confident it will elevate the public’s trust. It would represent a clear start towards getting the men and women who not only are best qualified to play a critical role in reducing the tensions between police and communities-—but who really want to be there. 

Joe Gunn is a retired commander of the Los Angeles Police Department. He has also served as former Assistant Deputy Mayor for Law Enforcement Policy, former Executive Director, Los Angeles Police Commission, former Executive Director of the California Corrections Independent Review Panel, and as former Police Commissioner of Burbank, CA. He welcomes comments from readers.

 

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The Court is Right: Children are ‘Constitutionally Different.’

By Jody Kent Lavy

Individuals told as children that they are unworthy of ever living again in a free society have renewed hope this week because of a U.S. Supreme Court decision reaffirming its call to hold young people accountable in age-appropriate ways.

Now it is up to resentencing courts and parole authorities to ensure that happens.

The Supreme Court’s historic ruling, in Montgomery v. Louisiana, held as retroactive its 2012 decision in Miller v. Alabama, which banned mandatory life without parole sentences for children. Montgomery is the fourth decision from our nation’s highest court in just over a decade  establishing that children are “constitutionally different” from adults,  and that their child status is therefore relevant to  sentencing—thereby making them less deserving of our harshest available punishments.

In the 6-3 decision written by Justice Anthony Kennedy, the Court said, “Miller… did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of ‘the distinctive attributes of youth.’”

But the ruling alone does not guarantee that individuals eligible for relief will be granted their due meaningful opportunities for second chances. It is now the responsibility of state decision- makers—namely judges and parole board officials—as they consider the fate of the thousands of individuals granted relief under Montgomery, to focus on the family- and home-life circumstances these individuals encountered as children, and apply current adolescent development research to their assessments.

Most importantly, the Court’s ruling means that authorities  must look beyond the facts of the crimes—even those with the most tragic outcomes—to see the growth and potential for rehabilitation of the individuals before them.

If a child can be rehabilitated, he or she cannot be sentenced to life without parole.

Henry Montgomery, the petitioner in this week's case, was convicted of killing a deputy sheriff in East Baton Rouge, La., in 1963. Montgomery was just 17.

In cases such as his, some resentencing judges or parole boards might be tempted to look only at the facts of Montgomery’s crime from five decades ago and decide that the severity of his actions render him unworthy of a second chance.  Now, doing so would constitute a clear violation of the Court’s decision.

Instead, the re-sentencing court or parole board must consider evidence that demonstrates  Montgomery  has been a role model for fellow inmates.  He was a coach and trainer for a boxing team he established, worked in the prison silk-screening shop, and served  as a counselor to other prisoners. They must consider evidence of his remorsefulness, and his work to rehabilitate himself.

When individuals like Montgomery can show they have been rehabilitated, or have the potential to be rehabilitated, they must be given a new sentence that either ensures a second chance or allows them to earn a second chance. This ruling gives hope to individuals sentenced as children to die in prison—and to their families. Many have been afraid to dream of this new day, because in the four years since the Miller decision, some judges have disregarded the Court’s call to make life-without-parole sentences for children “uncommon.”

Some parole boards have greeted individuals coming up for review with hearings that essentially constituted new trials while denying them the right to counsel and giving weight only to the prosecution’s position.

The acknowledgement that “kids are different”—which forms the very core of the Miller decision and has been embraced by many policy and opinion leaders, including conservative columnist George Will, Pope Francis and President Obama—has been recklessly disregarded.

This week’s ruling makes clear that this must change.

The new standard for reviewing the sentences of those previously condemned as children to die in prison not only inspires hope. It is a strong message to decision-makers charged with reviewing these cases, requiring them to employ a more robust process that includes, among others, the following key elements:

  • Right and access to counsel before judges and parole boards for individuals being resentenced;
  • A qualified defense team trained in representing children and experienced with homicide cases, as articulated in the Campaign for the Fair Sentencing of Youth’s “Trial Defense Guidelines: Representing a Child Facing a Possible Life Sentence ;”
  • Hearings that resemble those in capital cases, where the results of a full investigation of the defendant’s life are presented.

 The fates of thousands of individuals now rest in the hands of these judges and parole boards. Justice and the letter of the law demand that resentencing authorities affirm that children are different from adults and ensure that their reviews of these cases appropriately account for both these differences and for children’s unique capacity for rehabilitation.

As Justice Kennedy concluded in this week’s decision, “In light of what this court has said in Roper, Graham, and Miller about how children are constitutionally different from adults in their level of culpability, … prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.”

Jody Kent Lavy is director and national coordinator at the Campaign for the Fair Sentencing of Youth, the only national organization working exclusively to replace life-without-parole and other extreme sentences for youth with age-appropriate, trauma-informed accountability. She welcomes comments from readers.

 

 

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A Good Week for Juvenile Justice, But the Work Isn’t Done

By Kathy Park

It’s been a big week for young people in the justice system.

The U.S. Supreme Court ruled Monday that those previously sentenced to life without parole as juveniles must have at least a chance at life outside prison walls.

And President Obama’s subsequent ban, announced the same day, on solitary confinement for young people in federal prisons marks another critical acknowledgment of how we need to think about young people in prison. These recognitions—of both science and the human capacity for change—feel like justice. They are steps in the right direction.

Americans have reason to be proud of these changes. Still, I am left wondering why the wise principles that supported these decisions are not in use at every point in our juvenile justice system.

This week’s ruling in Montgomery v. Alabama extended the Court’s holding in Miller v. Alabama, a 2012 decision that established the unconstitutionality of sentencing juveniles to life without parole, applying it retroactively to all people currently imprisoned.

Both these rulings rely on the latest scientific research about how young people mature. Decision-making, judgment, and full comprehension of consequences come gradually, over decades, and the brain itself is not finished developing until around age 25.

It is heartening to see these scientific facts incorporated into a legal framework that now protects juveniles in all but the most extreme cases from a sentence of life without a chance for parole—truly, “cruel and unusual punishment” for any young person.

But what about the rest of the young people who come into contact with the justice system each year for offenses that do not rise to this level?

As reported by the Office of Juvenile Justice and Delinquency Prevention, more than 50,000 young people are in residential placement on any given day. Two-thirds of those are held for nonviolent charges, which include property and drug offenses as well as technical violations and status offenses (acts that are not criminal for those over age 18).

Let’s look at these young people through the prism that the Court applied in Miller and that the President incorporated into his ban on solitary confinement.

Do we believe, as communities—as a society—that more than 30,000 young people, none of whom are charged with an act of violence, should lose their freedom? Does our willingness to accept this as part of our justice system match up with our understanding of science and fair treatment?

And even for young people charged with a violent crime, how much advantage is gained—for anyone—when children not at high risk for committing another crime are held behind bars during critical developmental years?

This is not just about fairness.

It’s about common sense. Many people think that communities are safer if those who have committed crimes are locked up, but this is not the case. Research shows little impact on recidivism when we lock up those at low risk to commit another crime. In fact, all young people who experience confinement face greater challenges to their successful growth and development as well as heightened risks to their safety; and research shows that confinement as a juvenile is correlated with greater likelihood of future crime and return to incarceration, resulting in potential danger to the community.

Importantly, most of those who are confined return to their communities. For better or for worse, they bring their experiences back home with them.

If we are going to incarcerate any young people, we must use the knowledge we have about brain development to ensure safe conditions and appropriate services for those in residential placement. We must also emphasize effective reentry supports so that individuals can find success when they come back to their homes and neighborhoods.

Taking another step backward in the process, our understanding of human development should also impact our legislation. Despite the fact that the highest Court in our land recognizes that people mature around age 25, nine states automatically prosecute 17-year-olds as adults, with two of those also prosecuting 16-year-olds as adults.

These laws put young people in the worst possible situation for tapping into the “capacity for reform” that the Court has recognized as one of their distinguishing qualities: Youth face higher levels of danger and receive less in the way of treatment and education while in the adult system.

This week our President and our highest Court recognized the need for protection of our young people and their constitutional rights, taking important steps toward repairing the cumulative impact of the tough-on-crime approaches that have only served to work against public safety in the long run.

This recognition is due, in no small part, to the collective efforts of our country’s research and advocacy communities; the voices of system-involved young people and their families; and thoughtful government leaders across the political spectrum.

Let’s use this momentum to make equally thrilling new strides toward the creation of a system of justice for young people based on the principles of rehabilitation and transformation. Our next steps should rely on research and empirical evidence to create lasting reform and increased public safety.

They should draw on the strengths of communities in responding to young people and helping them achieve success. Finally, next steps must help achieve equity for youth of color, who are overrepresented at every decision point in the juvenile justice system.

No matter who you are, you can help. Talk to your legislator about raising the age of prosecution. Advocate for local school discipline practices that don’t feed the school-to-prison pipeline. Connect with a reentry organization in your community to offer mentoring or other assistance.

It may not seem as significant as a Supreme Court decision or an executive order, or ever get written up in a national newspaper; but to the young people who must navigate our juvenile justice system every day, you may matter even more.

Kathy Park is the chief executive officer of National Council on Crime & Delinquency. NCCD works to improve outcomes for at-risk children, adults, families, and communities by bringing research and data-driven decision making to the juvenile and adult criminal justice, child welfare, and adult protection systems. Ms. Park welcomes comments from readers. 

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Worried About Guns? Hey, Let’s Arm Everyone

By Robin L. Barton

It’s a melancholy experience for those who read or watch the news to be confronted, seemingly every day, with tales of innocent men, women and children gunned down in schools, malls and workplaces.

I think it’s agreed by all parties that the prodigious number of mass shootings and other violent crimes is deplorable and must be rectified. Thus, whoever could find a fair, easy and effective method of better protecting the citizens of this country would deserve to have a statue raised in her honor for having saved the nation.

Therefore, I shall now humbly propose my own thoughts, which I hope you won’t find objectionable.

Liberals would have you believe the answer to our sad state of affairs is stricter gun control and fewer guns on the streets.

I believe what’s needed is more guns in the hands of good, honest U.S. citizens.

Of course, we’ve already heard that suggestion from the National Rifle Association, but why not go further? Simply loosening the current strict restrictions on gun ownership and use isn’t enough.

People should not just be allowed to carry firearms everywhere—they should be required to do so.

Here’s my Modest Proposal: When all citizens turn 18, they should be required to take a basic weapons class on the safe use of firearms and then issued their first weapon—ideally something simple to use, such as a 9mm handgun. From that day forth, they should be required to carry that weapon on them at all times.

The weapons certification class won’t need to be very intensive. Guns are straightforward and simple to use. Even a child can figure out how to shoot a gun without any training at all. In fact, children as young as two and three years old have proven quite adept as using firearms.

Some of you might think this plan goes too far.  But think again.

First, the mandatory arming of citizens en masse will help prevent violent crimes or at least minimize the damage. Criminals and terrorists will be less likely to attack if they know their potential victims will be armed and ready to fight back.

After all, considering that the NRA and its partisans believe that position to be true, why not take it to its logical conclusion?

The U.S. Census Bureau estimates that, as of July 1, 2015, there were 247,773,709 individuals over the age of 18 in the U.S. If just half of these adults were authorized and required to carry firearms, there would be over 100 million protectors of the realm on our streets.

Don’t you already feel safer, just contemplating the prospect?

Even with the current relatively small number of armed citizens, there have been documented cases of average Joes armed with guns coming to the rescue and stopping criminals in their tracks.

For example, in March 2015, a man with a legal gun permit probably saved lives when he shot and killed a gunman inside a Philadelphia barbershop. The gunman had begun shooting at customers and employees after an argument escalated. At the time, there were children in the shop.

Our hero was outside when he heard the gunfire and ran into harm’s way. He took out his own weapon and fatally shot the gunman once in the chest.

No one else was hurt in that incident. Sure, the Left will argue that having citizens act as “vigilantes” without intense training in handling active shooter and similar situations will result in innocent bystanders getting shot.

However, the fact is that well-trained cops and federal agents also shoot bystanders, so that argument shouldn’t be a deterrent to my proposal. 

Second, mandatory gun ownership will prevent not only mass shootings and violent crimes but also minor offenses.

For example, a brave woman with a concealed gun permit fired on a shoplifter fleeing a Home Depot in Michigan. Tatiana Duva-Rodriguez didn’t successfully stop the thief.

But at least she tried.

However, instead of being honored, Duva-Rodriguez was treated just like the common criminal she was trying to stop and charged with the misdemeanor of reckless use of a firearm. She pleaded no contest; the court sentenced her to probation and revoked her gun permit.

It’s hard to find fault with her response to the whole experience: She vowed to “never help anybody again.”

My modest proposal will ensure that the mindset that produces heroes like Duva-Rodriguez is nurtured—not condemned by soft-minded and elitist Liberals who’ve never seen the inside of a Home Depot.   

When you think about it, we’re almost there. Open carry is already allowed in 45 states. Let’s make it the law of the land and prove that those folks who follow “New York values” (to paraphrase one of our current GOP candidates) are a minority— even, well, in New York. Surely, if potential criminals and terrorists see firearms on the hips of possible victims, they’ll get the message that whatever heinous act they’re considering isn’t likely to turn out as planned.

Ignore those academics who suggest there’s no supporting data.  They don’t shop at Home Depot.

And to be logical, there’s no reason to ban firearms in “soft” targets, such as malls, schools and hospitals. Is there a possibility that innocents might perish during a shoot-out between a gunman and a law-abiding citizen or citizens? Well, maybe. But it seems to me that gun-free zones place even more innocents in danger.

I’m certainly not the first person to make this observation.

Republican congressman Rep. Louie Gohmert of Texas responded to the tragic incident at Sandy Hook Elementary School by calling for more citizens to be armed. Referring to Sandy Hook principal Dawn Hochsprung, who was killed while lunging at the shooter, he wisely observed, “I wish to God she had had an M-4 in her office.”

To those who suggest that arming teachers, principals, security guards and others in schools increases the risk that children could get access to these weapons and inadvertently hurt themselves or others, I offer another modest proposal.

Let’s arm the kids.

The NRA’s highly effective Eddie Eagle gun safety program could be incorporated into elementary school curriculums, along with reading, math and computer skills. Don’t we want our children to learn how to defend themselves in our dangerous world?

And even if arming everyone doesn’t prevent violent or other crimes to a measurable degree, it will, at a minimum, level the playing field when criminals do attack.

Muggers, killers, rapists and the like will no longer be able to pull a gun or knife on an innocent victim with little fear of facing a weapon themselves. When men and women are able to effectively protect themselves and their loved ones, it will  at least be a fair fight.

We shouldn’t have to rely on our overburdened police for protection.

I know that anti-gun fanatics argue that increased gun ownership will result in an increase in the use of firearms in domestic violence situations, and in more gun-related suicides. But no plan is perfect.

Bottom line: For every armed criminal, we need an armed citizen.

My proposal will benefit the economy. Increased gun sales will help our impoverished gun dealers and gun manufacturers, and a national gun plan will mean the industry’s leaders won’t have to keep moving their headquarters from states where they feel unwelcome.

Yes, the government would need to supply 18-year-olds with their first guns, much like it does for members of the military and law enforcement. (How will the government pay for these guns? By eliminating the excessive and completely unnecessary background checks currently required for gun ownership.)

But once citizens get a taste of the pleasures of gun ownership and gun use, I expect that many will want to expand their collections and buy even more guns, maybe venturing beyond a simple handgun to include machine guns and other assault weapons.The economy will also benefit if armed citizens shoot and kill criminals in the middle of committing their crimes, thus eliminating the costs of arresting, jailing and prosecuting them. Everyone agrees that our justice system is already under strain. So my proposal would reduce the burden on our courts and cut our prison populations.

Does anyone have a better and more effective idea to remove the scourge of gun violence from our society? I imagine there are some who might say my Modest Proposal would only create more gun violence. But as I noted above, even a casual glance at the legislation approved by cities and states across the country shows we’re already quite far along the road I’m mapping out.  

I profess, with all sincerity, that I have not the least personal interest in endeavoring to promote this necessary work, having no other motive than protecting the lives of my country’s law-abiding citizens. I would be content with a small statue in recognition of my efforts—or at least a presidential award.

And just to be perfectly clear, any resemblance of my concept to Jonathan Swift’s iconic 18th-century “Modest Proposal” is, well, perfectly intentional.   

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report.  She welcomes readers’ comments.

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Rethinking Criminal Intent: Why 'Mens Rea' Matters

By William Kelly

In order for the government to legally prosecute, convict and punish someone, in most cases it  must prove that the person committed the criminal act (known as actus reus) and that he or she  committed that act with criminal intention (mens rea). There are a variety of terms used to describe mens rea, including moral blameworthiness, a guilty mind, an evil mind, conscious will, or willful action.

Mens rea is a foundational element of American jurisprudence. The U.S. Supreme Court made it quite clear in 2015 in Elonis v. United States that mens rea is what distinguishes wrongful conduct from otherwise innocent conduct.  It determines whom we hold criminally responsible.

While the current focus of federal criminal justice reform is primarily on sentencing, mens rea has recently become linked to the bipartisan bill to overhaul the sentencing system tabled in Congress late last year.  Commenting on the proposed sentencing legislation, House Judiciary Committee Chair Bob Goodlatte (R-VA) said earlier this month in an interview with The Atlantic that, “a deal that does not address [mens rea] is not going anywhere in the House of Representatives.”

The argument is gaining traction in the Senate as well: Senate Judicary Committee Chair Charles Grassley (R-IA) observed this week that “we don’t have a great deal of time to reach a possible compromise” on the issue in order to win passage of the sentencing reform bill this session.

The particular concern Congress has with the current status of criminal intent law is the extent to which average citizens can possibly know all of the 5,000 or so federal crimes and 300,000 federal regulations.  How can one “intend” to commit a crime if he is unaware that his behavior is criminal?

Congressional advocates of mens rea reform, backed by powerful Conservative supporters such as the Koch brothers, argue that the traditional phrase “ignorance of the law is no excuse” is no longer realistic.  They want the government to have to prove that someone knowingly committed a crime before he can be convicted.  Opponents argue that the benefits of such changes could disproportionately accrue to corporations and white-collar offenders.

Regardless of the merits of either argument, I believe the debate has so far sidestepped one of the more troubling impacts of mens rea on our justice system.

I agree that there is a valid question about whether citizens can be aware of all federal crimes. But the problem associated with mens rea is much broader than just the question of whether someone is “knowingly” breaking the law.  My concern is with the psychological, neurological, psychiatric, and intellectual ability or capacity of many offenders to form the required criminal intent.

Criminal intent or criminal responsibility requires awareness, conscious will, volition, and rational decision making. There is a routine presumption, which is rarely challenged, that criminal offenders have the ability to form intent. I challenge that presumption.

Here is why.

Today, 40 percent of individuals in the U.S. criminal justice system (federal and state) have a diagnosable mental illness. Sixty percent of inmates in the nation’s prisons have experienced at least one traumatic brain injury. Nearly 80 percent of justice-involved individuals have a substance abuse problem.  The prevalence in the justice system of individuals with intellectual disabilities is three to five times what it is in the general population. There are substantial numbers of individuals in the justice system with neurodevelopmental and neurocognitive deficits and impairments.

Moreover, there’s overwhelming evidence that many individuals with mental illness, addiction, neurodevelopmental deficiencies, and intellectual deficits lack the ability to form intent as it is defined in the law.  How many lack this ability we don’t really know, because we rarely inquire about intent. But the statistics cited above should raise serious questions about how we go about the business of criminal justice in the U.S.

In the vast majority of state and federal criminal convictions, the government rarely is required to prove intent. That’s because the vast majority of criminal indictments (roughly 95 percent) are resolved through a plea agreement.  If the offender agrees to the terms of the agreement, it’s essentially a done deal. That puts prosecutors in charge of sorting out who is criminally responsible and who is not. At the end of the day, the vast majority are held responsible.

Mens rea is supposed to serve as a gatekeeper at the front door of the justice system, separating innocent from criminal behavior. The reality is that criminal intent is just not much of an issue under current criminal procedure. That in turn has significantly contributed to our incarceration problem by facilitating the punishment of more and more individuals.

It has also contributed to our recidivism problem.

When we punish mentally ill, addicted, intellectually disadvantaged and/or neurocognitively impaired individuals, we tend to return them to the free world in worse shape than when they came in. This is simply more grease for the revolving door.

So, how do we align the intent and reality of mens rea? First, we need to appreciate that mens rea is largely a clinical question. Prosecutors are lawyers—not psychologists or neuroscientists. We should expand the expertise involved in decisions about intent by requiring independent clinical assessment of individuals at the front end of the decision to prosecute.

Second, we need to revise the law of intent by developing alternatives to the simple categories we currently have of determining whether someone is criminally responsible or not. We need to provide options for holding individuals “responsible, ” while diverting them to intervention or treatment rather than just punishment.

This is not “get out of jail free.” Rather, it is an opportunity to divert some individuals who do bad things and utilize evidence-based strategies that have been shown to substantially reduce the likelihood of reoffending.

That is more just. It enhances public safety, and it saves money.

William R. Kelly is a professor of Sociology at the University of Texas at Austin, specializing in criminal justice policy. His first book on criminal justice reform, “Criminal Justice at the Crossroads: Transforming Crime and Punishment,” was published in May 2015 by Columbia University Press. His second book, entitled “The Future of Crime and Punishment: Smart Policies for Reducing Crime and Saving Money,” will be published in July by Rowman and Littlefield.

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‘Coercive Suicide’: Identifying the Suicidal Mass Killer

By Katherine Ramsland

It has become increasingly obvious that suicide and mass killings are intertwined.

Suicide evaluation should become a tool for threat assessment. A brief mnemonic device [see below] can help police and other authorities decide if a person is a danger to himself and others.

A good example is the opportunity that police had in April 2014 when the parents of Elliott Rodger, a 22-year-old California college student, asked for a welfare check. Officers visited his apartment and had a brief conversation with Rodger. They concluded that he seemed stable.

However, police training for such evaluations is superficial. Although these officers did what was required, their resulting judgment was wrong.

Rodger was highly disturbed. Three weeks later, he went on a suicidal murder spree in Isla Vista, California. He killed 6 and injured 14 before killing himself.

His plan had been more ambitious. He wanted to kill all of the young women in a particular University of California-Santa Barbara sorority house. Distressed that he could not attract the type of girlfriend he believed he deserved, he had decided to make them pay for his misery.

Perpetrators of mass murder now often accept—even prefer—suicide as the culmination of their deed.

In light of the suicidal mass-murder incidents over the past few years, it’s time to train officers in better evaluation methods. Should they get the opportunity to check on a potentially dangerous individual, a brief conversation is inadequate. Tools in suicidology are available to help better identify those who show the warning signs, and law enforcement personnel should be trained in their use.

A high percentage of recent mass killers were known to be  depressed, angry, withdrawn, unstable, and unhappy with their lives, or were primed to view suicidal terrorism as a noble cause.

Suicide has increasingly become a part of ideological or punitive mass murder.

I call this "coercive suicide." Some of these killers hope to make a public show of their death as a “lesson,” a religious statement, and/or a way to gain fame. They need to include others in their death plan, often as many as possible, to achieve their goal.

With the exception of suicide for a noble cause (which has a different set of evaluation principles), the signals of a potentially suicidal mass murderer can be linked to a collection of factors that are statistically significant in risk assessments. A fantasy becomes an obsession, mixed with the need for control. When it evolves into a clear and specific plan of action that inspires preparation, violence against others is likely to occur.

If a desire for fame is present, the action will likely target a crowded public place. If such people feel trapped or hopeless, they will more likely kill themselves.

The fantasy often forms early in life, due to a disappointing circumstance. The person grew angry and pondered revenge or punishment, which brought relief, satisfaction and greater control. They felt better blaming others. To maintain the feeling of satisfaction, they developed plans.

Some mass murder fantasies are victim-specific, but others involve a symbolic target, such as a location or an employee in a specific occupation that has drawn their anger. Their behavioral signals leak their intent.

So how can police be better trained in what to look for?

The American Association of Suicidology offers a mnemonic device for performing a quick evaluation of the warning signs. The phrase to remember is this: “IS PATH WARM.” Each letter stands for a specific indicator:


 I  Ideation
S  Substance Abuse

P  Purposelessness
Anxiety
T  Trapped
Hopelessness

Withdrawal
Anger
Recklessness
M  Mood Changes

Those at high risk will often show a number of these indicators, which can be ascertained with a series of questions to friends, coworkers and acquaintances. They might have prior attempts or threats, or talk a lot about suicide. They might increase their alcohol or drug use, be more withdrawn, show a lack of purpose, or talk about feeling trapped with no way out. They have a “game over” mentality and might have trouble sleeping or taking care of themselves. Rage and the desire to punish, when coupled with these other indicators, is particularly alarming, especially with agitation, mood swings and increased recklessness.

The formula provides a deeper evaluation than is currently used by police for the potential to harm oneself and others. It requires doing more than talking to the target individual. Friends, family, and coworkers will have noticed key behaviors. Officers, or a team of risk evaluators, can also look at the person’s online presence. Quite often, they will express their anger, anxiety, depression, and musings about self-destruction. This is called leakage.

Although not meant as a full evaluation, IS PATH WARM does offer information that officers can use to alert the individual’s family or make a referral for intervention.

A quick analysis of Elliott Rodger, which could have been gleaned from his family, his video blog online, and a more structured set of queries, shows “Yes” in 7 of the 10 areas. Despite what he said to reassure officers, the truth lies in his behavior: He was depressed, angry, withdrawn, hopeless, and had made past threats for murder and suicide. His overriding purpose seemed to be rooted in punishing others for having better lives than he did.

His sense of entitlement, evident in his videos, ensured that his anger would burn hot.

In a resolution approved at its 2014 conference, the International Association of Chiefs of Police called for “mandated treatment of the mentally ill.”  At a panel discussion I attended, speakers called on police to make this the decade in which officers must learn more about mental illness and how to better handle such people.

A lesson in suicidology for risk assessment should be part of their training.

Dr. Katherine Ramsland directs the Master of Arts program in criminal justice at DeSales University and is the author of 58 books, including Inside the Minds of Mass Murderers. She writes a blog for Psychology Today at https://www.psychologytoday.com/blog/shadow-boxing. She welcomes readers’ comments.

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Gang Validation, Good-Time Credit & the ExPost Facto Clause in California’s Prison System

By Caleb Mason

The coming year should be a good one for continuing criminal-justice reform in California. For one thing, the prison population is falling, for the first time in recent memory. Proposition 47 (which makes simple possession of any drug a misdemeanor—and which acts retroactively to reduce the sentences of those previously convicted) is gradually removing possession-only offenders from the state prisons, where most drug-policy experts and an increasing number of law-enforcement officials agree they shouldn’t have been in the first place.

And this tectonic policy shift has not, contrary to some alarmist prognostications, driven up crime rates. (The first detailed study of recidivism among inmates released under Prop 47, released in November by Stanford researchers, shows a rate of less than 5 percent.)

Moreover, things are getting better inside California’s prisons as well.  For example, the prison system has drastically reduced and overhauled its once-widespread “contraband watch” policies, under which inmates thought to have swallowed contraband would be shackled hand- and-foot and chained to an iron cot under bright lights under constant observation until they produced three bowel movements.

Under such circumstances, that sometimes took awhile—I had a client years ago who was held for almost a full week in a six-by-eight cell, chained to an iron cot by an ankle chain, with his hands cuffed to a waist chain, and duct-taped (at the wrists, ankles, and neck) into two jumpsuits. He was unable to sleep on bare metal under the constant bright lights, and he was unable to eat because the guards refused to free his hands, instead putting trays of food on the floor and forcing him to each with his face in the tray like a dog.

That’s torture.

But in a deeply disappointing decision authored by Judge Jay Bybee (who prior to his appointment to the bench was the author of the “torture memos” that authorized similar treatment for CIA black-site detainees), the court ruled that the guards were entitled to qualified immunity, because the law was not sufficiently clear to put them on notice that what they were doing was illegal.

But sometimes, even when the courts won’t intervene, state officials do the right thing anyway, and voluntarily renounce a policy despite winning in the courts.  The case got the attention of officials at the Department of Corrections and Rehabilitation, who finally issued comprehensive regulations that, while not abolishing contraband watch entirely, will at least ensure that it doesn’t turn into torture or become an easy vehicle for retaliation against prisoners, as was often alleged.  (There are now strict time limits, and rules requiring periodic loosening of restraints, dimming of lighting, medical monitoring, and personal supervision and authorization by prison command staff.)

The development I’d like to highlight in this column  involves the interaction of prison “good-time credit” and the Ex Post Facto Clause of the Constitution (Article I, Paragraph 10 “No State shall… pass any… ex post facto Law.”)

Here’s how they fit together. The Ex Post Facto Clause says the government can’t retroactively make conduct criminal, or retroactively increase the penalty for criminal conduct. “Good-time credit” is a reduction in sentence length that inmates earn based on time served without any disciplinary issues. 

In California, general population inmates get “one to one” good-time credit, meaning that for each problem-free day they serve, their sentence is reduced by one day.  So best case, if you keep your head down, is to cut your sentence in half.  Until 2010, inmates in Security Housing Units (SHU) (what many places call Ad Seg), got “three to one” credit, meaning one day off their sentences for each three days served.

Then, in response to the very real problem of gang-related violence in the prison system, the legislature changed the Penal Code to take away all good-time credit for any inmates put in the SHU after being “validated” by prison officials as gang members.  “Validated” means that prison officials believe the inmate’s associated with a gang; and the criteria for validation are both capacious and malleable.

Starting on January 25, 2010, “validated” gang members (who were all sent to the SHU) got no more good-time credit whatsoever.  So, say you went to prison in January 2004 on a ten-year sentence. As of January 2010, you had four years left on your sentence. Then you get validated. Prior to the amendment, you’d have done three years in the SHU and been out. But because of the amendment, you now have an extra year to serve.

So what’s your intuition? Can the legislature do that? I’ve talked to a lot of people about this issue since 2010, and I’ve found that many people begin with the intuition that a change in the calculation of good-time credit (leaving aside the merits of the gang “validation” system itself—which are dubious) is qualitatively different from a change in the underlying punishment attached to a particular crime.

Not so. The good-time credit entitlement formula is part of the sentence, ruled the Ninth Circuit in Hinojosa v. Davey, and it can’t be changed retroactively any more than the ultimate sentence length can.

In Hinojosa, the Ninth Circuit held the changes to the good-time regime unconstitutional as applied to all inmates who committed their offenses prior to the amendment. The court’s reasoning is clear and direct: A person is constitutionally entitled to know—at the time he commits his criminal offense—what the maximum possible sentence for that offense is going to be. And that constitutional entitlement includes the formula for earning good-time credits during the sentence.  That is, prior to the 2010 amendments, a potential criminal contemplating his crime (this is the hypothetical scenario we use for ex post facto analyses) would know that his sentence exposure was the statutory max term, minus one-to-one credit for gen-pop time, or three-to-one credit for SHU time. And he had a constitutional right to those predictions remaining stable throughout his sentence.

Such predictability is of both constitutional and practical import.

The court quotes from a 1981 Supreme Court case, Weaver v. Graham, which explained that “a prisoner’s eligibility for reduced imprisonment is a significant factor entering into both the defendant’s decision to plea bargain and the judge’s calculation of the sentence to be imposed,” and that a new law that retroactively “constricts the inmate’s opportunity to earn early release… makes more onerous the punishment for crimes committed before its enactment”—which the Ex Post Facto Clause forbids.

Hinojosa has had an immediate effect. The state, rather than petulantly force every single validated prisoner to file his own individual habeas petition, began the process of going through its records and awarding back good-time credits. I know they’re doing it because I have a former client who, after Hinojosa came out, was given back three years of good-time credit, and then released.

I don’t know how many other inmates have yet been released under Hinojosa, or how much time and effort the CDCR is devoting to good-time credit reviews. But it should hustle: Prison officials have qualified immunity against damages suits for stripping good-time credit for gang-validated inmates—but only up until September 25, 2015, when the decision was issued. Since then the state has been on unambiguous notice that the practice is illegal, so wardens are fully open to damages suits.

Inmates released late could sue for damages for every day they were unconstitutionally held over. (Note-- below) And there wouldn’t be any defense on the merits; the only defense would be that officials were doing their best to comply, but just couldn’t get to everyone fast enough. And that defense is fading: we’re now three months on from the ruling, and some simple math shows real potential exposure if the state is dragging its feet. If a thousand prisoners were held an average of a hundred days too long, then at a very conservative $100 dollar-a-day valuation per person, that’s ten million dollars in damages.

Let me anticipate the objection: Releasing “validated gang members” is a lot more dangerous than releasing possession-only drug offenders, right? Here’s my answer: First: I’d be a lot more worried if the “validation” standards weren’t so capricious and so extraordinarily easy to meet, with so little administrative oversight or judicial review. From the fact that an inmate has been “validated,” it does not follow that he will take up a life of gangbanging upon release.  I hope and expect that the CDCR and academic researchers track the recidivism rates of Hinojosa releases, so we can get some data.

Second: Hinojosa (unlike Prop 47) is not shortening anyone’s sentence or releasing anyone “early”; rather, it’s restoring the sentences they actually received, and releasing them on their actual release dates. And that’s nothing to complain about, not in a society based on the rule of law.

(Note: Another complication arises because of a case called Heck v. Humphrey, which I’ll be happy to discuss further in the comments. Under Heck, prisoners wouldn’t be able to sue for money damages on this theory until after their release. Prior to their release, their only option is habeas, and the only remedy in habeas is release—not money.)

Caleb Mason is an attorney at Brown, White and Newhouse in Los Angeles, and a former federal prosecutor. He welcomes readers’ comments.

 

 

 

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Corrections Reform Isn’t Just About Cutting Prison Populations

By Marc Mauer

Population data just released by the Bureau of Justice Statistics (BJS) show a continued modest decline in the number of people supervised in U.S. correctional systems, averaging a 1 percent decrease annually from 2007 to 2014.

This reduction is somewhat greater than the decline in the prison population for this period, and in large part it reflects changes in the number of people under probation supervision. While in recent years there has been an increasing focus on challenging mass incarceration, less attention has been devoted to  examining corrections populations overall. The new BJS report underscores the importance of adding this dimension to a reform strategy.

The overall decline in corrections populations is encouraging but, as with the prison population figures, it’s clear that the national trends remain quite modest. A  2013 analysis  of The Sentencing Project found that at the previous year’s rate of decarceration, which remains the greatest thus far, it would take 88 years to reduce the prison population down to where it was in 1980.

Similar estimates could be developed for probation and parole today.

The national data are useful, but they also can obscure the variation among the states in corrections policy and allocation of resources. Like incarceration rates, community supervision rates vary widely across the country. The rate of community supervision on probation or parole ranges from a low of 610 per 100,000 in Maine to a high of 3,110 per 100,000 in Idaho. (BJS also reports a dramatic rate of 6,430 in Georgia, but notes that the figure is less precise than in other states due to the possibility of double-counting.)

There are several causes of this variation. A high rate of community supervision can be a function of policy choices to emphasize probation and alternative sentencing over incarceration. For example, Minnesota incarcerates at less than half the national rate, while employing community supervision at a rate one-third greater than average. 

In contrast, policy decisions to produce a “tough” corrections system can result in high rates of supervision across the board. Texas, for example, maintains a rate of incarceration 36 percent above the national average, but also a community supervision rate 33% above average.

A high rate of community supervision can also reflect how probation is structured. In Rhode Island, a state with strong corrections leadership and a commitment to non-incarcerative sentencing, much of the explanation for high supervision rates relates to the length of probation terms. A recent analysis by the Council of State Governments found that individuals leaving a correctional institution in that state are placed on probation terms lasting six years, three times the national average.  Further, 80 percent of the current probation population has been on supervision for more than a year—thus past the point at which recidivism would have been most likely to occur.

The consequences of such policies are quite significant.

First, unnecessarily high rates of community supervision drain resources from where they are most needed. With the aid of risk assessment tools, probation and parole officials are increasingly seeking to target interventions to those individuals at high risk of failure. Such efforts are hampered if supervision resources and services are allocated to probationers who are likely to succeed in any case.

Second, excessive use of probation—placing too many people on probation or for too long—creates a slippery path toward incarceration. As former New York City probation commissioners Vincent Schiraldi and Michael Jacobson have written, probation supervision for low risk people “can serve as a trip wire to unnecessarily revoke and incarcerate.”

Finally, high rates of community supervision often are accompanied by disproportionate racial effects. Criminal justice policies in Rhode Island have created a system in which one of every six adult black men in the state is on probation supervision. Disparities such as these around the nation can have substantial effects on prospects for employment, housing, voting, and other measures necessary for community integration.

Fortunately, the national discussion on addressing mass incarceration is increasingly incorporating a broad examination of correctional supervision, with many leaders in probation and parole seeking to move toward a more focused and effective approach to supervision. In New York City, probation leaders enacted policy changes in recent years that reduced the number of people under supervision with no adverse effects on public safety.

Key elements in this shift included:

  • increasing the early discharge rate from 3 percent to 18 percent;
  • working with the state legislature to enable judges to impose probation terms between 3-5 years for most felonies, rather than being limited to the previous term of 5 years;
  • expanding the use of kiosk reporting for those individuals doing well while under supervision.

Just as it is encouraging to see that a handful of states have reduced their prison populations by more than 20 percent in recent years, so too can we identify jurisdictions which view community supervision populations as a focal point for reform.

Similarly, as the National Research Council concluded that policy changes, not crime rates, were the major factor producing high rates of incarceration, we can also see how this plays out in regard to community supervision populations. As the justice reform movement evolves, we will, hopefully, see increasingly focused attention on the connection between these components of the justice system.

Marc Mauer is the Executive Director of The Sentencing Project and the author of Race to Incarcerate. He welcomes comments from readers.

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