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To fix the justice system, shrink and reform community supervision

To fix the justice system, shrink and reform community supervision

Over the past decade, the U.S. embarked on an unprecedented jail and prison building campaign, reaching a peak of 2.3 million people incarcerated in adult facilities in 2008. While this meteoric rise of mass imprisonment has been increasingly scrutinized, it is less well known that the number of individuals under supervision on community supervision rose even more dramatically. While community supervision (especially probation) was initially intended as an “alternative” sanction, in recent decades it ballooned alongside imprisonment.

Between 1980 and its peak in 2007, the number of adults under probation supervision in the United States grew from 1.1 to 4.3 million. Adding parole populations brings the total to 5.1 million under supervision. While these numbers have declined since their peak, there are still more than 4.6 million adults under community supervision in 2015, compared to the 2.2 million behind bars. Rather than choosing probation or prison, we have increasingly chosen all of the above, despite sustained declines in crime rates since the 1990s.

Not only are probation and parole additional forms of state control with onerous restrictions and obligations, but they also contribute to prison expansion. When probationers and parolees fail at the overwhelming list of limitations and demands placed on their behavior, they can be revoked to jail or prison — in the most extreme cases, for the entire original sentence. In forthcoming research, I show that 33% of jail inmates and 23% of prison inmates in the mid-2000s were on probation at the time of arrest. Roughly a quarter of these men and women were incarcerated for nothing more serious that violating supervision conditions (for things like failure to report, dirty drug tests, and nonpayment of fines and fees). Compared to probationers in the community, those revoked to jail or prison were disproportionately young men of color. The statistics are just as dire for failed parolees, who made up 12% of the jail population and 18% of prisoners, and for whom roughly one fifth were incarcerated for technical violations (excluding new arrests).

As some states start to scale back their prison populations, reformers increasingly are turning their attention to this hidden form of criminal justice control. From 2013 to 2016, a group of probation officers, sheriffs, corrections executives, prosecutors, judges, policy-makers, reformers, and academics convened through the Harvard Kennedy School’s Executive Session on Community Corrections.

In an unusual development, the group was in such clear agreement about the direction needed for community corrections, they published a consensus document signed by the entire team. Drawing from the U.S.’s foundation principles and values — including life, liberty, and equality before the law — they call for a vision of community corrections that departs significantly from today’s practices. The paper lays out four bold principles to guide the future of community supervision, including:

1. To promote the well-being and safety of communities;

2. To use the capacity to arrest, discipline, and incarcerate parsimoniously;

3. To recognize the worth of justice-involved individuals; and

4. To promote the rule of law, respecting the human dignity of people under supervision and treating them as citizens in a democratic society.

To implement this new vision, the Executive Session members call for a number of paradigm shifts. Perhaps most importantly, the paper advocates moving from “mass supervision to focused supervision” — making probation and parole a targeted and strategic use of resources rather than default supervision status for a massive number of adults. The authors call for the end of probation for low-level offenses that never would have been punished 40 years ago with formal supervision. In addition, they propose a radical rethinking of how individuals are treated on community supervision, with a new emphasis on promoting success, providing meaningful assistance, and emphasizing dignity and respect.

While the brief consensus document leaves much to be worked out in terms of implementation — both at the level of legal changes necessary and the tougher work of changing the daily operations of prosecutors, judges, and probation and parole officers throughout the country — it is a notable accomplishment. Bringing community supervision out of the shadows and centered in criminal justice reform is critical if we are to dramatically reduce the scale of imprisonment without transferring those populations onto community supervision. In addition, such an upheaval of the justice system has the potential to bring real improvements to the lives of families in distressed communities, where criminal justice control has been far too extensive and repressive.

Court holds that retroactive extension of sex offender registration is punitive

Court holds that retroactive extension of sex offender registration is punitive

Last week, the Pennsylvania Supreme Court held that some applications of the state’s sex offender registration law violate the state constitution. The decision represents an important step toward increasing constitutional scrutiny of sweeping laws that make it nearly impossible for convicted sex offenders to reintegrate into society after serving time in prison.

Jose Muniz was convicted in 2007 of indecent assault. At the time, the law required him to register as a sex offender for a 10-year period. Mr. Muniz fled before his sentencing; he was apprehended in 2014 and brought before the court for sentencing. While Mr. Muniz was on the run, the Pennsylvania legislature passed a new Sex Offender Registration and Notification Act (“SORNA”), which added even more onerous registration requirements. At Mr. Muniz’s sentencing, one of these new requirements was applied: he was ordered to comply with the new lifetime registration requirement instead of the 10-year requirement that had been in effect at the time of his conviction. Mr. Muniz appealed the application of the new lifetime registration requirement, asserting that the retroactive application of SORNA violates the ex post facto clause of the U.S. Constitution and the Pennsylvania Constitution.

The courts below had rejected Mr. Muniz’s argument by determining that SORNA’s registration provisions were not punishment at all; they were, instead, civil and nonpunitive. Accordingly, the ex post facto clause did not apply.

The Pennsylvania Supreme Court disagreed and struck down Mr. Muniz’s registration requirement as unconstitutional. Three of the five justices in the majority wrote an opinion stating that the retroactive application of SORNA violated both the U.S Constitution and the state constitution; two concurringjustices joined in finding a violation of the state constitution. One justice dissented. (Only six justices took part in the decision.)

The key finding in the majority’s opinion in Commonwealth of Pennsylvania v. Muniz is that SORNA is punitive in nature. Although sex offender registration might otherwise appear to be clearly punitive in both operation and intent, courts have historically deferred to state legislatures who claim that the primary purpose of such laws is regulatory in nature, and not to punish sex offenders. Indeed, the Pennsylvania General Assembly explicitly wrote that SORNA “provides a mechanism for the Commonwealth to increase its regulation of sexual offenders in a manner which is nonpunitive but offers an increased measure of protection to the citizens of this Commonwealth.”

Because Pennsylvania claimed that SORNA was not punitive, the court then undertook a review of a variety of factors to see whether implementation of the statutory scheme had punitive effects. After a lengthy discussion of the factors that help courts determine whether a civil scheme is punitive (set out by the U.S. Supreme Court in the case Kennedy v. Mendoza-Martinez), the three-justice lead opinion concluded that “SORNA involves affirmative disabilities or restraints, its sanctions have been historically regarded as punishment, its operation promotes the traditional aims of punishment, including deterrence and retribution, and its registration requirements are excessive in relation to its stated nonpunitive purpose.” The two-justice concurrence agreed with the Mendoza-Martinez findings, and agreed that SORNA’s retroactive application violates the Pennsylvania constitutional protection against ex post facto laws under Article 1, Section 17. (The two opinions disagreed about whether the Pennsylvania Constitution offered more robust ex post facto protections than the U.S. Constitution, which is why no single majority opinion came through.)

Several other courts around the country have found that sex offender laws have punitive effects, including those in MarylandIndiana, and Alaska. And, in a high profile case that is currently pending consideration before the U.S. Supreme Court, the U.S. Court of Appeals for the Sixth Circuit determinedthat Michigan’s retroactive application of its registration requirements was punitive. While the State of Michigan has asked the Supreme Court to reverse that finding, the U.S. Solicitor General somewhat surprisingly urged the Courtto deny the State’s request and leave the Sixth Circuit opinion undisturbed.

The Pennsylvania decision may be an additional signal that the tide is slowly turning against a widespread hyper-punitive approach to managing sex offenders. In an important First Amendment decision issued near the end of its most recent term, the U.S. Supreme Court also hinted that some justices are concerned that these laws have gone too far. As I wrote in a post for the ACSblog:

“Even setting aside this serious problem of the legal conflation of child molesters with teenage pranksters — a problem that poses a real public safety concern by undermining the utility of registries — state laws dealing with sex offenders who have already served time curtail liberty to an extreme degree. A subset of these offenders are subjected to civil commitment, meaning the state detains them in prison-like conditions (where they are theoretically treated for mental health problems that make them dangerous). In several states, this involuntary detention is indefinite. These people will die in state custody. Many states and localities also impose severe residency and travel restrictions on released sex offenders, making it so difficult to find living arrangements in some places that affected citizens are forced to live on the streets and under bridges. Research suggests that such laws may actually increase the odds that these individuals will commit crimes again.”

While challenges to such laws will continue to percolate across the country, the Muniz decision raises a number of pressing questions in Pennsylvania. The Cumberland County District Attorney, on the losing side of Muniz, got it right when he told the Post-Gazette that: “The finding by the court, that essentially the whole scheme is punitive, calls the entire statute into question.”

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Why is Portland’s mayor considering a domestic abuser for police chief?

Why is Portland’s mayor considering a domestic abuser for police chief?

Earlier this week, the Oregonian newspaper reported that Ted Wheeler, the Mayor of Portland, Oregon had narrowed the field of candidates for Portland police chief to four candidates.

The decision of whom to make the next police chief is of some significance for a department that the Los Angeles Times recently characterized as a force “in disarray.” The last police chief retired abruptly after the Oregonian reportedthat he had shot a friend, apparently by mistake, while hunting in rural Oregon. The chief, who may have been drinking at the time, then falsely suggested to the local sheriff’s office that his friend’s injury was self-inflicted.

Portland’s police department also suffers from what one might reasonably characterize as wildly racially disparate law enforcement. Black people are charged with low-level cocaine offenses at a rate 30 times that of white people. They are also charged more for small broken windows type offenses—for example, black people are charged 15 times more than white people for failing to cross the street at a right angle.

Mayor Wheeler ran on what he described as a “platform of police accountability.” Yet, since becoming mayor he has been, at best, ineffectual. He stood idly by as Portland police violently attacked anti-Trump protestors, even injuring innocent bystanders. He had little substantive to say when a Portland police officer shot and killed a 17-year-old African American boy, Quanice Hayes, who, the officer said, was reaching for his waist band. (Though a fake gun was later found near Hayes’ body, the officer conceded that he did not see a gun before shooting Hayes.) Mayor Wheeler also had little to say as Portland police shot and killed Terrell Johnson, a mentally ill black man who “displayed” a knife, even though it is far from clear that the shooting, whether criminal or not, was necessary.

Similarly damning, Mayor Wheeler had little to say when it was revealed that, although his police have a gang database that targets racial minorities because of their peer groups and social networks, the police had not seen fit to include in the database a well-known white supremacist with a violent criminal history and a pattern of threatening racial minorities. When that white supremacist went on to shout racist hate speech at two young girls of color on a MAX train and then violently murdered two good Samaritans who came to the girls’ defenseCarimah Townes asked in Slate, “Why wasn’t this known white supremacist, who was a clear danger to civilians and law enforcement, included in the database? Because he is white.”

In this increasingly divided city, Mayor Wheeler offers little more than bromides. “[Portland] has a long history of being open and welcoming and inclusive,” he says, which is not accurate. Portland has a well-known history as a KKK stronghold during 1920s and is the largest city in a state that once banned the settlement of black people.

Given all of this, it’s unclear why Mayor Wheeler named the current, temporary chief Mike Marshman, a 26-year veteran of the department, as one of the four finalists for police chief.

Marshman became chief when the prior chief left abruptly under a cloud of scandal. However, he is weighed down by a scandal of his own — one the that the city and its political leadership has never fully confronted. As Marshman himself admits, he once engaged in a domestic violence incident — which is to say, Marshman “grabbed” his teenage stepson “around the neck” and “shoved his [stepson’s] head into the wall.” The incident first came to the attention of Portland police via an anonymous letter, more than a decade ago, when Marshman was a sergeant. Police also received photographs of the incident that revealed “hand and thumbprints around the stepson’s neck and two dents in the wall of the home.” And this was apparently not an isolated incident. Marshman’s ex-wife also described to police an earlier incident in which Marshman hit her son when he was nine years old. Notwithstanding the apparent evidence, Marshman was never prosecuted. He was never even arrested.

Though it gets far less attention than concerns like terrorism or gang violence, domestic violence is a common, harmful and underreported source of physical insecurity in American society. The United States Department of Justice estimates that more than a million incidents of domestic violence occur in America each year, and 21% of all violent crime is domestic in nature. Notwithstanding the fact that many Americans imagine a stranger as the primary source of criminal danger in their lives, when it comes to homicide, American women are more than three times as likely to be killed as part of a domestic violence incident than by someone they do not know. Domestic violence ends in 100,000s of visits to hospital emergency rooms and 100,000 visits to mental health service providers each year. In other words, domestic violence is, relatively speaking, hidden in our culture. It is far more common and far more serious than our abbreviated public dialogue about it would suggest.

Hearing Marshman’s ex-wife, Stacy Cole, describe the events she and her stepson experienced highlights the conspiracy of silence that too often surrounds domestic violence. As the Oregonian reported, Cole said she didn’t report the incident at the time, because she “fear[ed] what would happen to Marshman’s police career.” A picture was placed over the dents to the wall of the home, covering but not repairing the damage. The silence even extended to counselling: though “the three went to counselling… no one talked about the altercation.” Cole later expressed regret, suggesting that she “was writing a letter to her son apologizing for not having done more to protect him.”

The silence extends beyond Marshman’s family to his colleagues. Even once the police department became aware of the allegations, they dithered and never opened a full investigation. When asked about the incident, the prior mayor, Charlie Hales, said he “stands by [Marshman] and appreciates Marshman’s willingness to make his record and this investigation public.” Mayor Wheeler has made no public comment at all about Marshman’s violent past — though naming Marshman a finalist for the permanent job speaks volumes about Wheeler’s lack of concern about the incident.

Similarly, Portland’s other ostensibly progressive elected leaders have not publicly pushed back against hiring a domestic abuser to be the police chief. Portland’s City Council and the all-female Multnomah County Board of Commissioners have been conspicuously silent on the question. Despite the Oregonian’s initial aggressive reporting of the incident, they, as well as Oregon Public Broadcasting and other local news sources, have omitted all reference to the incident from their reporting on the search for a new police chief. In doing so, they too have seemingly concluded that domestic violence is not relevant to Marshman’s job as chief law enforcement officer. (On the other hand, in a profile of one of the finalists for the police chief position, the Oregonian saw fit to mention that one candidate works as a college basketball referee in his spare time.)

I believe in redemption, that people are more than their worst act, and that, over time, people generally ought to be given the chance to move past the mistakes that they have made. At the same time, it’s hard not to notice how harshly and indiscriminately our society sometimes punishes people with less power and influence than Marshman. Furthermore, in Marshman’s case, his apparent crime was covered over by other powerful people. He never was forced to account for the violence he perpetrated.

Regardless of how Mayor Wheeler feels about redemption generally, it is a different sort of question when the perpetrator seeks a position of awesome power and authority like police chief. Should a man who committed a violent act of domestic abuse be given a gun by the city of Portland and empowered to make decisions about when violence justly can be used against others? At minimum, that question should be the subject of some sort of civic dialogue.

So far, in Portland, Mayor Wheeler — and, quite frankly, all the public officials — have shown only cowardice in the face of that question. They have responded with the same fearful silence that so often enables domestic abusers and ensures that domestic abuse remains hidden in the shadows.

The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

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