For our last official criminal justice class, we heard from five more teams of students about their research projects. (At the students’ request, we also scheduled an extra evening session to watch the third best movie ever made about the law and lawyers—answer at the end of this post.) Once again, the students worked on a wide range of topics and, once again, I learned from the students. Here are some quick takeaways along with a brief discussion of one of the topics—double jeopardy, or more accurately, the absence of double jeopardy protections in the UK. Continue reading
Tag Archives: prisons
Part 2: Double Jeopardy and Beyond
What do the topics in the title of this blog post have in common? They were the focus of the students’ criminal justice presentations this week. Nine teams of students, two on each team, have been researching and preparing their presentations throughout the semester. Here are some of my takeaways from the first set of presentations. Continue reading →
Last year was a difficult one for North Carolina’s prison system. One correctional officer was killed by an inmate at Bertie Correctional Institution. Four staff members were killed during an attempted escape at Pasquotank. Today’s post summarizes some of the statutory and regulatory changes made in response to those incidents. Continue reading →
Inmates do not forfeit the right to practice their religious faith while they are incarcerated. But of course that right is not unlimited. Officers can impose certain restrictions when an inmate’s religious practices would conflict with the institution’s legitimate interests in safety, security, and good order. There is a lot of case law about those restrictions, both as a constitutional matter under the First Amendment, and under a federal statute, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1(a)(1)–(2)—which is even more protective of inmates’ rights than the Constitution. Continue reading →
Early Medical Release
North Carolina has a law allowing certain prison inmates to be released early for medical reasons. It was passed in 2008, largely in response to concerns that a small number of aging inmates accounted for a sizeable percentage of the system’s medical budget.
The law is similar in concept to compassionate release in the federal system under 18 U.S.C. § 3582(c)(1)(A) (and former § 4205(g)) . The federal law has been criticized for its rarity of use; the average number of prisoners receiving compassionate release annually is less than two dozen. A 2013 U.S. Department of Justice internal review described the program as “poorly managed and implemented inconsistently,” prompting policy changes intended to improve access.
North Carolina’s early release law is similarly rarely used. Each year the legislature directs the Department of Public Safety and the Post-Release Supervision and Parole Commission to prepare a report on the number of inmates proposed for and granted release. That directive was written into G.S. 143B-707.2(b) last year. S.L. 2013-360, sec. 16C.11.(d). The 2012 report showed that 16 inmates were considered for the program in 2011, resulting in 10 releases, 3 denials, 1 release plan that “did not work out,” and 2 inmates who died prior to release. The 2013 report showed 6 proposals resulting in 6 releases in 2012. Media reports have collected anecdotes about some of the participants in the program.
How exactly does North Carolina’s medical release program work? Here is a short summary.
Eligibility. Inmates are eligible to be considered for medical release if the prison system determines that they fall into one of the following categories, each of which is defined in G.S. 15A-1369:
- Permanently and totally disabled, defined as a “permanent and irreversible physical incapacitation” determined by a licensed physician that “render[s] the inmate permanently and totally disabled, such that the inmate does not pose a public safety risk.”
- Terminally ill, defined as “an incurable condition . . . that will likely produce death within six months,” as determined by a licensed physician, that is “so debilitating such that the inmate does not pose a public safety risk.”
- Geriatric, defined as 65 or older and suffering from a “chronic infirmity, illness, or disease related to aging that has progressed such that the inmate is incapacitated to the extent that he or she does not pose a public safety risk.”
Class A, B1, and B2 felons and inmates convicted of reportable sex crimes are not eligible for release. G.S. 15A-1369.2.
Procedure. The process for early release begins with a request or petition from the inmate, the inmate’s attorney, the inmate’s next of kin, or upon a recommendation from medical staff within the prison system. A licensed physician assesses the inmate’s medical condition and prison staff assesses the inmate’s risk for violence and recidivism. These assessments must be completed within 45 days. If they indicate that the inmate meets the criteria for release, the request is referred to the Parole Commission for review. The Parole Commission has has 15 days to make a release determination for terminally ill inmates and 20 days to review referrals of disabled or geriatric inmates. The Commission must provide the inmate’s victims with an opportunity to be heard.
Conditions of medical release. An inmate granted release is subject to conditions of release set by the Parole Commission, including supervision by a Community Corrections officer. The released inmate must comply with a prescribed medical release plan and the requirements of medical providers. A failure to comply can lead to a return to imprisonment. G.S. 15A-1369.4. An inmate must also be reimprisoned if his or her medical status improves to the point that he or she no longer meets one of the eligibility criteria. G.S. 15A-1369.5.
The prison system’s rules and regulations on medical release are available here.
Another possible avenue of release for a sick or dying inmate is the Secretary of Public Safety’s authority to extend an inmate’s limits of confinement under G.S. 148-4. Under that law the Secretary can allow a person to “obtain medical services not otherwise available” or, in listed circumstances, to “receive palliative care.” Prison rules for that type of release are available here.
Options for Pregnant Inmates
One of my colleagues recently tipped me off to a great article in the Journal of the American Medical Association by Dr. Jennifer G. Clarke entitled Perinatal Care for Incarcerated Patients: A 25-Year-Old Woman Pregnant in Jail. 305 JAMA 923 (2011). I wish I could share the full article but it does not appear to be available without a subscription. The abstract, at least, is available here. The article uses the case of a Rhode Island woman sentenced to a 1-year jail term during the second trimester of her pregnancy as a springboard for discussing the issues, benefits, and challenges of caring for an incarcerated pregnant woman. Though its target audience is health care providers the article offers plenty of food for thought for people in the criminal justice system—as well as an opportunity to summarize some related points of North Carolina law.
The article begins with a moving first-person account of the woman’s jail stay. She describes a range of emotions, going from being “glad I came to jail to get cleaned up so my child could be born clean” to “getting really sad because I’m gonna have my baby in jail.” When it came time for her to deliver she was moved to a community hospital where, aside from some minor complications on account of her prior heroin use, everything went smoothly. She was discharged after 36 hours and returned to the jail. Shortly thereafter she was granted some type of parole to a community-based residential parenting program.
The article highlights the many challenges of being pregnant or having a baby while serving an active sentence. Many such pregnancies are complicated even before any imprisonment beings; they are, according to the article, often unplanned and compromised by “variable prenatal care, poor nutrition, domestic violence, illicit drug and alcohol abuse, [and] sexually and parentally transmitted infections.” Once the woman is imprisoned, institutional security requirements impede optimal care. For example, shackling and handcuffs create a hazard due to imbalance and the risk of falls, and officer escort requirements reduce the likelihood of successful breastfeeding after delivery. Faulty assumptions about state and federal privacy laws, such as the Health Insurance Portability and Accountability Act (HIPAA), can frustrate communication at every stage in the process.
In spite of these challenges, though, many studies have paradoxically shown “better outcomes for pregnancies managed behind bars than for women of similar socioeconomic status whose pregnancies are managed in the community.” Some outcome measures actually improve with increasing lengths of incarceration—which is not so much an endorsement of inmate medical care as it is an indictment of a “preincarceration environment . . . characterized by poverty, drugs, chaos, and danger.”
North Carolina law doesn’t say much about pregnant inmates, but there are a few important provisions to note. Jail regulations require jails to have a written medical plan that addresses the handling of emergency medical problems, specifically including emergencies involving pregnancy. 10A NCAC 14J. 1001(b)(5). The regulations also provide that pregnant women must receive four servings from the “milk group” each day instead of the usual two afforded to jail inmates. 10A NCAC 14J .0903(c). For pregnant prison inmates, G.S. 148-4(7) authorizes the Secretary of Correction to put a prisoner on maternity leave for a period not to exceed 60 days. The law says that county departments of social services are “expected to cooperate” with DOC officials to coordinate “prenatal care, financial services, and placement of the child.” DOC’s policy on Inmate Maternity Leave is available here.
Finally, there is a special sentencing option available for certain pregnant women. When a pregnant woman is convicted of a “nonviolent crime,” the court may, under G.S. 15A-1353(a), specify in the order that the date of service of the sentence is not to begin until at least six weeks after the birth of the child or other termination of the pregnancy, unless the defendant requests otherwise (which, given some of the research cited in the JAMA article, a woman might reasonably do). The court is authorized to impose reasonable conditions upon the defendant during the “waiting period” to ensure that the defendant will return to begin serving the sentence.
The issue of inmates with children obviously goes beyond pregnant women. Thousands of inmates—both men and women—are separated from their families while serving time in prison. Some states have programs allowing very young children to live with their mothers in prison (Washington’s program is described in this article). There is no such program in North Carolina, although the N.C. Correctional Institution for Women has long had a program called Mothers and Their Children (MATCH) that provides a home-like space to facilitate enhanced visitation. A nonprofit group called Our Children’s Place has worked to establish a full-time housing unit where women could actually live with their babies or preschoolers, but it is not yet operational. (Several times the General Assembly has asked for information about the program, most recently in section 19.15 of S.L. 2009-451, the 2009 appropriations act.) For defendants eligible for probation, the court might want to consider a residential program like Summit House, which describes itself as a “residential alternative-to-prison program for mothers convicted of a non-violent crime and their minor children.”
On Monday the Supreme Court issued its decision in Brown v. Plata, holding that systemic failures to provide adequate medical and mental health care in the California prison system can only be remedied through judicially-imposed limits on the state’s prison population. In a 5–4 decision, the Court upheld a lower court order requiring California to reduce its prison population to 137.5% of its design capacity within two years. That’s a reduction from about 150,000 inmates to 110,000. In other words, California has been ordered to shed roughly the equivalent of North Carolina’s entire prison system.
The case is the climax (though probably not the culmination) of two decades of litigation. First filed in 1990 by a class of seriously mentally ill inmates, the case has seen multiple court-ordered remedial plans, injunctions, the appointment of a special master and a receiver, and—eventually—the empanelment of a three-judge court, empowered under the Prison Litigation Reform Act of 1995 (PLRA) to order reductions in the prison population. After hearing 14 days of testimony the court did just that, issuing the population-reduction order described above. The order does not require the state to meet the 137.5% target in any particular way, but everyone seems to agree that there is “no realistic possibility that California would be able to build itself out of this crisis.” Slip op. at 30. So, some type of inmate release or transfer will be required.
An order to reduce prison population is an extraordinary remedy, and several preliminary hurdles must be cleared under the PLRA before such an order may issue. First, a court must have previously entered an order for less intrusive relief that has failed despite passage of a reasonable amount of time. Second, such an order may only be issued by a three-judge court convened expressly for that purpose. And third, the three-judge court can only enter a release order if it finds by clear and convincing evidence that “(i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” The relief ordered must be “narrowly drawn” and may “extend no further than necessary to correct the violation” through the “least intrusive means necessary.” Along the way, the court must “give substantial weight to any adverse impact on public safety” caused by any relief ordered. 18 U.S.C. § 3626(a).
After detailing history of the litigation and the exceptional degree of prison overcrowding in California and some of its more disturbing consequences (high suicide rates, interminable waits for medical care, and poor hygiene standards—like 54 inmates to a single toilet), the Court determined that the procedural and substantive prerequisites of the PLRA had been met and that a population-reduction order was authorized and appropriate. Following a familiar pattern of tough cases issued near the end of a term, Justice Kennedy wrote for the Court, joined by the four liberal-leaning Justices.
Justice Scalia, joined by Justice Thomas, dissented. Calling the majority opinion an affirmance of “the most radical injunction issued by a court in our Nation’s history,” he challenged the notion that “systemwide deficiencies” could satisfy PLRA’s threshold requirement that prospective relief be limited to violations of the rights of “a particular plaintiff or plaintiffs.” The relief is not “narrowly tailored,” the dissent argued, when most of the inmates released under the order will likely be prisoners outside the original classes of plaintiffs (those with serious medical conditions or severe mental illness)—indeed, Justice Scalia wrote, “many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.” Justice Alito, joined by the Chief Justice, authored a separate dissent. Like Justice Scalia he questioned whether, in light of generally positive trends in the California system as of late, the court below had actually found an ongoing violation of constitutional rights. He also expressed doubts about whether the three-judge court had taken into account the public safety ramifications of, as he put it, “the premature release of approximately 46,000 criminals—the equivalent of three Army divisions.”
The case has been covered extensively in the media (here, for example) and it will likely stand as one of the blockbusters of the Term. It includes, as others have noted, some “big-time rhetoric” that is worth a read. Interestingly, an appendix to the majority opinion includes three pictures apparently intended to demonstrate the scope of the overcrowding. Slip op. at 51–52. (A video showing more recent footage is available on the California Department of Corrections and Rehabilitation website, here.)
There are a few North Carolina connections to note. First, North Carolina’s prison system is no stranger to intervention by the federal courts on account of overcrowding—although it’s been a while, and most of it predated the PLRA. Much of the history is summed up in Small v. Hunt, 98 F.3d 789 (4th Cir. 1996). In short, rapid prison population growth in the 1980s led to a series of lawsuits and eventually settlements enforced by the courts through consent decree.
Though our prisons are not as severely overcrowded as California’s, it’s worth noting that our current inmate population exceeds the system’s standard operating capacity (SOC) of around 35,000 inmates and hovers right around the system’s “expanded operating capacity” (EOC) of around 41,000 inmates. (EOC is achieved through housing two inmates in a single cell and increasing dormitory populations through varying percentages, not to exceed 130% in any individual facility). Sentencing Commission projections suggest that prison population will exceed EOC by around 3,000 inmates in 2019.
But those projections assume current laws and administrative policies remain static, and that’s not likely to be the case. As I’ve mentioned before, substantial changes to our sentencing laws are in the works (e.g., HB 642, which is worth a look if you haven’t seen it). And DOC is about to implement changes to its sentence credit policy, increasing the rates at which earned time will be awarded by 50% (from 2, 4, or 6 days per month to 3, 6, or 9 days, depending on the type of work performed). Those changes, which have already been distributed to prison officials and all sheriffs, become effective next week. (I’ll provide a link to the new policy when it’s available online.) But even if our inmate population stabilizes or even declines, it’s worth remembering that overcrowding was not, in and of itself, the violation at issue in Plata. It was insufficient medical care and mental health treatment.
There has been an endless parade of relevant news over the past week or so.
First, Justice Sonia Sotomayor was confirmed by the Senate and sworn in. This New York Times story about her confirmation gives you the basics if you’ve been living under a rock.
Second, I’ve just come back from a week of vacation in Canada. The locals were complaining about the brutal temperatures, which regularly pushed into the — gasp! — high 70s. Anyhow, reading the Toronto papers was an eye-opener, especially this article about an infamous white-collar criminal who fleeced innocent investors through a multi-million dollar accounting fraud. Sound like someone else who’s been in the news recently? Well, in Canada, such shenanigans will earn you a hefty sentence of . . . seven years. But you don’t start serving it until after your appeals are exhausted. And because of generous parole rules, you may be released in 14 months. And you may serve your time at a prison with an “executive golf course.” Sounds pretty brutal.
Third, a number of interesting items have cropped up in connection with sex offenders, including two articles (here and here) from The Economist, generally arguing that America’s sex offender registration regimes are too extensive, and a remarkable comment by a federal circuit court about a long sentence for a first offender in a child pornography case. A few tidbits on the lighter side of a serious subject include this story about an iPhone app for tracking sex offenders and, perhaps my favorite, this story about a man who claimed that his cat downloaded child pornography behind his back.
Fourth, another cluster of stories has come out, this one about prisons. There was a massive race riot at a California prison, which some have suggested may be due to a Supreme Court decision rejecting California’s previous practice of racial segregation in prison, and others have suggested may be connected to the state’s prison overcrowding. But no matter how bad the situation in California may be, it pales in comparison to the situation in Mexico, where complete corruption is the rule. The New York Times reports that “[w]hen life inside, with its pizza deliveries, prostitutes and binges on drugs and alcohol, becomes too confining, prisoners sometimes pay off the guards for a furlough or an outright jailbreak.”
Finally, the General Assembly is supposed to be winding down, but it is still cranking out bills, from the Racial Justice Act, which allows statistical evidence of racial discrimination to be introduced in capital cases (and which Governor Perdue reportedly will sign today), to a bill prohibiting “cyberbullying,” to bills that change the structured sentencing grid to the net modest benefit of defendants. I’ll try to do a more systematic analysis of the legislative session once it is complete.
Proposed Changes to Sentencing Laws
With the growing prison population and the shrinking budget, there’s some talk of changes to North Carolina’s sentencing laws. An article in the paper last week made general reference to sentencing alternatives proposed by the Sentencing and Policy Advisory Commission. I thought people might be interested in knowing a little more about the specifics of those proposals.
In 2001, the General Assembly asked the Sentencing Commission to “study and review the State’s sentencing laws in view of the projected growth in the prison population by 2010” and “develop alternatives that appropriately penalize offenders . . . while identifying inconsistencies in the structured sentencing law or in its application.” S.L. 2001-424. The alternatives set out in the report included:
- Punishing habitual felons three classes higher than the offense classification of the substantive offense, but in no case higher than Class C.
- Including defendants with one or perhaps two prior record points in Prior Record Level I.
- Making the increase in sentence lengths between prior record levels proportionate by using a set percentage increment (15%).
- Reallocating three months from the minimum sentences of Class B1 through E felonies to the maximum, while increasing the period of post release supervision from nine months to twelve months.
At the time they were proposed, the alternatives would have resulted in about 5,500 fewer prison beds needed in the 10 years after enactment. I’m not sure how many beds they would save if enacted today, but it appears they alone wouldn’t quite bridge the projected shortfall of about 7,000 beds by 2018.
I’m curious to know what people think of the proposed alternatives. There are those who say you can’t build your way out of a prison bed shortage, and tinkering with the grid is a political football. We already started to see a limited reemergence of parole last year, with new early release programs for the terminally ill and disabled and for certain deportable inmates. Let us know what you think.