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The Misguided Call for Harsher Punishments at the Heart of the Judge Persky Recall Effort

The Misguided Call for Harsher Punishments at the Heart of the Judge Persky Recall Effort

In a series of tweets, New York Senator Kirsten Gillibrand recently praised the recall effort against Judge Aaron Persky, who sentenced Stanford University swimmer Brock Turner to six months in prison after Turner was convicted of sexually assaulting a woman during a college party.

The recall effort is misguided. It’s unlikely to result in the changes its most ardent supporters desire around increased accountability and deterrence for those who commit sexual assault. But it will likely lead to harsher sentences.

Led by Stanford Law Professor Michele Dauber, the recall campaign claimsthat Judge Persky granted leniency to Turner because he was white and privileged. Assuming that’s true, the recall effort doesn’t address that problem. If it did, the campaign would call for Judge Persky to sentence other non-white, less privileged defendants to the same time as Turner.

Nor will the campaign achieve greater accountability. Turner was charged, convicted, and sentenced. As Meaghan Ybos, founder and executive director of People for the Enforcement of Rape Laws, noted, the justice system held him accountable in a way that doesn’t happen in many sexual assault cases.

But the campaign’s main criticism is that Judge Perksy gave Turner “too lenient a sentence.” Arguing that a two-year sentence was appropriate, Professor Dauber faults Judge Persky’s failure to send Turner to prison for an additional 18 months.

The campaign’s message to other judges is that if they sentence too leniently, they will be removed from office. As my colleague Paul Butler noted, when other judges hear that message, it is unlikely the higher sentences will fall on “white boys at frat parties.” When the system becomes more punitive, minorities and the poor usually receive the brunt of it. That’s why 89 law professors, the Santa Clara County District Attorney, and public defenderoppose the recall.

Despite this risk, Professor Dauber leads the campaign because she contends that a two-year sentence would deter other young men from committing sexual assault. In that way, she echoes Attorney General Jeff Sessions’s general view on deterrence: When we punish one person harshly, it deters others. This argument is often used to justify imposing longer sentences on defendants.

But research shows that increasing the length of an individual sentence is unlikely to create an effective deterrent. If the media publicity surrounding Turner’s case, his conviction, and his sentence to life on the sex offender registry don’t deter other students from committing sexual assault, then it’s hard to believe they would be deterred had Turner received another 18 months in prison.

We tend to measure punishment solely by the length of incarceration, and calls for harsher sentencing are rarely accompanied by an appreciation of the full punishment actually imposed.

Turner will be on probation for another three years. If he makes a mistake, he will serve a 14-year prison sentence. Turner will also spend a lifetime on the sex offender registry. His neighbors will be alerted anytime he moves. He can be barred from living near schools, parks, and other public areas. Anytime he travels to another state, he must comply with detailed regulations about how long he can stay.

Turner will face countless collateral consequences, including lawful discrimination in housing and employment. These consequences will continue to apply even if he matures, ages out of crime, and exhibits rehabilitation.

Running an internet search on someone you meet is common in today’s culture. It will be difficult for Turner to have a normal romantic relationship once someone searches his name online. If he is fortunate enough to have children, he will be unable to participate in their afterschool activities, and his kids are likely to be bullied by other kids about their father’s conviction. His actions will continue to haunt him and his family, and the punishment will never end.

Maybe that’s what he had coming. The crime he committed was vile and the victim will continue to suffer the effects of the sexual assault. But the recall campaign isn’t grappling with any of these difficult realities about punishment. Professor Dauber has a personal relationship with the victim and thus her instinct is understandable. The temptation to seek vengeance is one of which we are all guilty; it is also one of the primary drivers of mass incarceration.

If we’re going to impose stiffer sentences, we should consider the full range of punishment. I served almost 11 years in federal prison, a horrible place where the threat of violence or dying from lack of medical care was always present. But if given a choice between serving 18 months in prison or facing the full range of consequences that Turner will endure long after his release, I’d easily choose the 18 months.

Brock Turner will receive a lifetime of punishment. Unhappiness with his prison sentence is not an adequate reason for a crusade that will lead to harsher sentences for others, ultimately falling on the most vulnerable.

When those who know the criminal justice system say this recall campaign will be a net loss for justice, you’d think the recall supporters would reconsider. And if the criminal justice reform community can’t convince a liberal law professor from Stanford and a Democratic senator from New York to reconsider their call for harsher sentences, then we have a long road ahead to convince the rest of America to end practices leading to mass incarceration.

Shon Hopwood is an associate professor of law at Georgetown University Law Center and co-founder of Prison Professors L.L.C.

As New York Decarcerates, The Number of People Under Supervision of Parole Rises

If Donna Hylton were still on parole, it would be a parole violation for her to socialize or speak with Topeka Sam (right, wearing glasses) without prior authorization from her parole officer
Victoria Law

As New York Decarcerates, The Number of People Under Supervision of Parole Rises

Crime in New York City is at historic lows. The overall number of people in the city’s jails recently dipped below 9,000 for the first time since 1982. Yet the number of people locked up for violating the terms of their parole is on the rise.

That is the conclusion of Less is More in New York City, a new report from Columbia University’s Justice Lab about the impact of parole violations on prison and jail populations. Since 2014, the number of people in New York City’s jails, including Rikers Island, has dropped 21 percent. But the population locked up for technical parole violations, such as missing an appointment with a parole officer, associating with people with felony records or failing a drug test, has increased 15 percent.

The report takes a snapshot of a single day to illustrate its point: On November 16, 2017, state parole violations made up 16 percent (or 1,460) of people in the city’s jails. Indeed, parole violators are the only part of the New York City jail population that has increased over the past four years.

“In New York, people released on parole are more likely to return to incarceration not for new convictions, but for violating the conditions of their parole,” the report notes.

At the state level, the report reveals, the number of people returned to prison for parole violations increased 21 percent between 2015 and 2016. For every 10 people who successfully completed their parole in New York State, nine were reincarcerated for parole violations. In 2016, those people made up 29 percent of the state’s prison population. But their violations were not necessarily new crimes; instead, nearly half were technical parole violations.

Chart: “Less is More in New York: An Examination of the Impact of State Parole Violations on Prison and Jail Populations”
Justice Lab — Columbia University

Even New York Governor Andrew Cuomo acknowledged the tremendous impact of parole violations, noting in his 2018 State of the State briefing book that, in 2012, 33 percent of people released from prison were remanded within three years for technical parole violations. “New York jails and prisons should not be filled with people who may have violated the conditions of their parole, but present no danger to our communities,” he stated.

Vincent Schiraldi, the report’s author and a senior research scientist at Columbia University’s Justice Lab, is also a former commissioner of the New York City Department of Probation. He notes that a parole violation generally results in two months in jail while officials hold hearings to determine whether to revoke parole. In other words, people spend an average of two months behind bars waiting to learn whether they will be returned to prison. Schiraldi told In Justice Today that roughly two-thirds end up being sent back to prison; the other one-third are released. But in that time, formerly incarcerated people struggling with reentry can easily lose newly secured jobs or housing.

Author and activist Donna Hylton spent 27 years in prison for kidnapping and murder, followed by five years on parole. She is still in contact with many of the women she was incarcerated with at Bedford Hills Correctional Facility, New York’s women’s maximum-security prison, including those who are now navigating reentry and parole. Two months may be an average, notes Hylton, but she knows of cases in which the jail time stretched even longer. She recounted working with a young woman whose parole violation stemmed from her drug addiction. “She spent almost nine months waiting for a hearing,” Hylton said. Though the woman was ultimately not remanded to prison, those nine months behind bars resulted in her child being placed in foster care. “She’s now trying to put her family back together, put her life together,” Hylton said, “Incarceration and re-incarceration should not be the response to addiction. A lot of technical violations are because of that.”

Vonda Seward, the former statewide director for reentry services for the New York State Division of Parole, agrees. “When we talk about technical violations, most of them are drug-related,” she told In Justice Today. “Going to jail or prison is not the answer to getting high.” But, she noted, parole officers err on the side of caution to avoid risking a future crime. “When you work for parole, you’re only as good as your last successful case.”

“Incarceration and re-incarceration should not be the response to addiction. A lot of technical violations are because of that.”

At the same time, both Schiraldi and Seward note, parole officers have limited ability to help with the plethora of parolees’ pressing needs, such as housing, employment and health care. But that doesn’t mean they won’t threaten parolees with violations for not finding resources on their own.

That’s what happened to Donna Hylton. In January 2012, with her parole officer’s initial approval, Hylton left a transitional program to reconnect with family. When she realized that her family’s home was still unhealthy and that she could not stay with them, she was left without housing. Her parole officer told her that unless she found a homeless shelter or a residence that the parole officer approved, she would be sent back to prison. Fortunately, Sister Mary Nearney, a Roman Catholic nun and founder of numerous programs for incarcerated women, whom Hylton had met while in prison, came to her rescue. In February 2012, Hylton moved in with Sister Nearney until she was able to find her own apartment. “I was an exception,” she notes. “So many other people don’t have that.”

Lack of housing is a common barrier for people returning home from prison, and for those on parole, it can easily become a pathway back to prison. That’s something Topeka Sam, director of the Ladies of Hope Ministries, a faith-based reentry program for women, learned firsthand after establishing Hope House, a transitional home for formerly incarcerated women in the Bronx.

In the fall of 2017, she was prepared to accept the house’s first residents — five women scheduled to be released on parole from the New York state prison system. But then the Department of Corrections and Community Supervision (DOCCS), which operates the state’s prison and parole systems, refused to approve Hope House because Sam herself is formerly incarcerated and currently on federal probation (though her probation officer approved her efforts to create Hope House). Sam told In Justice Today that most of the women whom she is now unable to house went to shelters; one woman remains in prison for lack of approved housing.

The Justice Lab report offers several policy recommendations for decreasing the number of people jailed for parole or probation violations, including shortening parole terms, requiring a hearing before jailing someone for a technical violation, creating a high legal threshold for jailing people for less serious parole violations, and using graduated sanctions and rewards rather than the threat of immediate incarceration.

But, Seward said, these recommendations won’t happen without pressure from Governor Cuomo. “We can continue to show reports and data,” she said, “but if the governor doesn’t put his foot down on what he wants, it’s not going to get done.”

Correction: This story has been edited to note that only the number of people violating the terms of parole, not probation, is on the rise.

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Florida Prisoners are on Strike to Protest Price Gouging and Their ‘Current Slave Arrangement’

Resident gardening in a California prison
Justin Sullivan/Getty

Florida Prisoners are on Strike to Protest Price Gouging and Their ‘Current Slave Arrangement’

Prisoners in Florida are in the midst of a huge and risky protest: They started a strike and boycott on Martin Luther King Jr. Day meant to last through the month.

The protest challenges exorbitant prices at canteens; urges Florida to extend parole, as an incentive for good behavior, to all prisoners; and demands payment for prisoners’ labor. But the tactic has sparked heavy pushback from the Florida Department of Corrections. Prisoners have told outside strike organizers that the department is trying to stifle the strike by retaliating against those who are participating and cutting off their communications with each other and with family and friends on the outside.

In their original statement outlining the motives for the strike, posted on the website of the Incarcerated Workers Organizing Committee, Florida prisoners said they would stop working their prison jobs and boycott the canteens starting January 15 “until the injustice we see facing prisoners in the Florida system is resolved.” That includes what the prisoners describe as the “current slave arrangement,” in which they are made to work without pay.

According to data collected by the Prison Policy Initiative, jobs that support prison facilities in Florida can pay as little as nothing at all; at most, prisoners make 32 cents per hour for work such as laundry, maintenance, or food service, and a high of 55 cents per hour for producing goods, such as sewn products or farm crops, that are sold to government agencies and outside businesses.

Apart from the obvious injustice, prisoners say, empty pockets make reentry difficult. Prisoners who are released are given just $50 and a bus ticket. “[T]he reality is it’s not enough to do anything with!” they argue in their statement. Getting paid for work, on the other hand, would allow them to save up for life after prison.

Prisoners are also protesting marked-up prices at the canteen, where, for example, they say a case of soup costs $17. In a San Francisco Bay View articleabout the action, Kevin “Rashid” Johnson, who is incarcerated at Florida State Prison, wrote that items like a stick of deodorant, toilet paper, and packs of oatmeal cost significantly more in Florida prisons than in the Texas prison system, where he was previously held. According to Johnson, a bottle of water costs more than six times more in Florida than in Texas — 99 cents versus 15 cents.

“Coupled with Florida prisoners receiving no wages, [prisoners] must purchase basic hygiene supplies, seasonal clothing, shoes and supplemental foods and beverages from a grossly overpriced commissary and package system, which weighs heavily on their loved ones,” Johnson wrote. “Otherwise prisoners must do without.”

“We intend to sit down and refuse to work, have an economic protest,” one in-prison organizer said in an audio interview shared with The Nation ahead of the action. “We want to create an environment where someone can do their time, be rehabilitated, and enter into society with some type of hope.”

It’s been difficult for organizers to get a full count, but people confined in at least 14 Florida prisons have participated in the strike, according to Karen Smith of the Incarcerated Workers Organizing Committee, one of the groups that helped organize the strike. “As far how many people are participating, there’s just no way of knowing,” she told In Justice Today. “All we see is the letters we get back.”

Smith’s organization has gotten multiple reports through letters from incarcerated people that the Florida Department of Corrections has taken steps to repress the strike, including putting people in solitary confinementand shutting down phones. Prison officials have even threatened those who communicate with her organization and other outside entities with “Security Threat Group” status, which would label them as part of a gang for the remainder of their sentences, limiting their placements and privileges.

Johnson recently wrote in a second San Francisco Bay View article about a warden “unleash[ing] swift retaliation” against him because of his first article on the strike, which prison officials said in a disciplinary report amounted to “inciting a riot.” Johnson sent a letter to the Abolitionist Law Center saying he was being “literally tortured” by being denied heat in 30-degree weather and given a non-working toilet.

Smith says the crackdown reflects the movement’s increasing power. “Prisoners are just getting organized, so the state is just starting to use these tactics,” Smith said.

In response to an inquiry from In Justice Today about the use of confinement and threats of Security Threat Group status, a spokesperson for the Florida DOC said, “Inmates are rarely put into single man cells. However, inmates will receive a disciplinary report should they refuse to do their assigned work duties.” The spokesperson also asserted, “No Florida inmates participated in work stoppages or strikes. All daily operations are continuing as normal, including inmate phone privileges.” The spokesperson confirmed that prisoners “are not paid” for laundry, cooking, and maintenance duties.

Smith is confident the DOC won’t be able to stop the strike, nor to stem the growing tide of organizing inside prisons. “I don’t think any of their tactics are going to make it impossible for this movement to continue on,” she said. “In recent years, it’s just been growing.”

“We intend to sit down and refuse to work, have an economic protest…. We want to create an environment where someone can do their time, be rehabilitated, and enter into society with some type of hope.”

Even prisoners who have been put on lockdown say they’re still participating in the protest. “We’re getting word back that there’s whole camps on lockdown,” said Smith. “Any amount of lockdown time is a win for a prison strike, because officers are triple-staffed and performing duties that the prisoners would have, and that’s expensive. That’s the whole point of this disruption: to disrupt their business as usual and hurt their profits.”

Prison uprisings have a long history in this country, with a swell of organizing in recent years. In 2016, on the 25th anniversary of the Attica Rebellion, people confined in state and federal prisons in 24 states, including Florida, went on strike to protest what they called slave labor conditions. Prisoners make, on average, just 14 cents to $1.41 an hour across the country, and in many prisons earn nothing at all. In August, in response to organizing for another protest, all of Florida’s prisons were put on lockdown, an unprecedented step.

Smith says one reason the current strike might not be making headlines is that it’s less visible than some other prison protests. “Some actions of the past were really visible because things were literally on fire and there were major physical uprisings, dorms were torn down,” Smith said. The Florida prison strike, by contrast, is harder to track because the prisoners are engaging in non-violent protest. Smith also noted that the DOC can transfer inmates from other locations who may not be part of the strike to have them perform work duties. It’s “a replaceable workforce,” she said. “So it’s a challenge.”

But, she argues, people housed in Florida prisons will continue to fight against exploitative labor practices. Currently, her organization, Support Prisoners And Real Change, and another called the Campaign to Fight Toxic Prisons are working on next steps for the rest of the year. “Right now, the focus is economic,” she said. “The way you do that is with strikes and boycotts.”

“This isn’t a one-and-done, one-day mission accomplished,” she said. “This is going to be a lot of work.”

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