Mar 18, 2019

What you’ll read today

  • Spotlight: When we look at recidivism rates to evaluate reforms, we are looking for—and funding—the wrong things

  • Bronx DA says she wants to reduce overdose deaths, but opposes a program that can help

  • DA runs for judgeship, requires all employees to sign confidentiality agreements

  • Delaware attorney general reforms policies on prosecution

  • The argument that the Green New Deal is a public health program

  • Letter to the Editor: Describing California’s death penalty moratorium as ‘undemocratic’ ignores shifting public opinion

In the Spotlight

Spotlight: When we look at recidivism rates to evaluate reforms, we are looking for the wrong things

The First Step Act has been in the news, three months after it was signed into law in December. Last week, both NPR and the Houston Chronicle reported on the release of a seriously ill man from federal prison in Louisiana under the compassionate-release provisions of the law. Also last week, however, the Marshall Project reported that President Trump’s 2020 budget calls for only $14 million in funds in 2020 for the “new and innovative pilot programs” of the First Step Act that are meant to prepare incarcerated people for release. This was after no money was explicitly allocated for funding the law in 2019. TMP reports, “While nothing has been written in stone, Trump’s plan indicates what the White House considers important, and it may foretell political fights to come over empowering the law or leaving it toothless.”

The First Step Act sharply divided criminal justice advocates. Criticisms of the law have been of two major varieties. The first is that the law, after getting so much attention and energy as the first major attempt at decarceration and overhauling prison conditions in the federal system in decades, was ultimately extremely modest in its reforms—its sentencing reforms are not retroactive and contain numerous carve outs that left whole groups unable to benefit from early release. Worse still, it may have closed the door to other, more ambitions reforms that could have happened in its stead. Furthermore, the improvements in prison conditions that it mandated were for the most part, already in place as regulations for the Bureau of Prisons. The second major criticism is that the law actively harms by entrenching flawed and racially biased risk assessment tools. [Marie Gottschalk / Jacobin]

In Jacobin, Marie Gottschalk, a professor at the University of Pennsylvania and author of “Caught: The Prison State and the Lockdown of American Politics,” took a close look at the First Step Act last week. In Gottschalk’s view, “The greatest sins of the First Step Act are not its modesty.” Rather, “the legislation nicks the edges of the carceral state while bolstering disturbing trends in criminal justice reform.” While Van Jones described the law as the “rare clean bill” that “does no harm,” Gottschalk was adamant that this is far from the case: “Jones is wrong,” she said, “it does much harm.” [Marie Gottschalk / Jacobin]

Among Gottschalk’s concerns was that the First Step Act reforms “risked “embedding deep racial and class bias” into early-release decisions in the federal prison system,” as civil rights organizations put it before the bill’s passage last year. Specifically, Gottschalk focused on how the “First Step Act’s preoccupation with risk assessment bolsters a disturbing tendency to valorize recidivism rates as the key indicator of what the government and the public are receiving in return for the $172 billion” spent on the criminal legal system each year. Recidivism, Gottschalk elaborated, is a flawed and incomplete measure and focusing on it leads to focusing on—and funding—the wrong things. [Marie Gottschalk / Jacobin]

Gottschalk looked at the problems of recidivism as a public safety measure and measure of justice reforms’ effectiveness. “Recidivism is a notoriously slippery concept,” she wrote. There are a few significant problems with using recidivism as the measure of justice reform effectiveness. [Marie Gottschalk / Jacobin]

First, recidivism data are both under inclusive and skewed. In 2018, researchers Jeffrey A. Butts and Vincent Schiraldi looked at how a focus on recidivism undermined the purpose of community corrections systems i.e. probation and parole. As a measure, they wrote, recidivism is “a complex, bureaucratic indicator of system decision-making,” not a “a simple measure of individual behavior and rehabilitation.” It is “at least in part a gauge of police activity and enforcement emphasis and, because of differential policing practices in minority communities, using recidivism as a key measurement may disadvantage communities of color.” [Jeffrey A. Butts and Vincent Schiraldi / Harvard Kennedy School Program in Criminal Justice Policy and Management]

Recidivism is also an unsophisticated measure. It defines any criminal activity as a failure when the reality is that, for example, someone with a long history of committing burglaries could desist from that thanks to interventions that provide stability in housing, employment, or education. But if she were arrested for drug possession, that might be considered an example of recidivism when, in fact, it is better understand as part of a pattern of desistance. Sometimes recidivism data even includes rearrests or reincarceration for violations of probation or parole conditions—which can fall well below the threshold of criminal activity. [Jeffrey Butts and Vincent Schiraldi / Harvard Kennedy School Program in Criminal Justice Policy and Management]

What is the alternative? Butts and Schiraldi urged policymakers to instead use “measures focused on social development and community wellbeing” that “are more useful for evaluating the effects of justice interventions, and they are less likely to distort policy discussions.” In a piece discussing their research in the Marshall Project last year, they wrote that rather than asking about recidivism rates in the wake of reform efforts, “we should ask an entirely different set of questions about justice interventions.” These include: “Are we really helping people convicted of crimes to form better relationships with their families and their law-abiding friends? Are we helping them to advance their educational goals? Are they more likely to develop the skills and abilities required for stable employment? Are we helping them to respect others and to participate positively in the civic and cultural life of their communities?” [Jeffrey A. Butts and Vincent Schiraldi / The Marshall Project]

These questions look beyond the negative preoccupations of recidivism to consider the broader picture of how an individual with past criminal justice system involvement is now living her life. In doing so, they elevate that person’s potential, growth, and contributions over the ways they might fall afoul of unequally enforced laws. And in so doing, Butts and Schiraldi write, “they look beyond the “yes or no” of recidivism and focus on factors that we know moderate criminal behavior—social bonds, education attainment, employment.” [Jeffrey A. Butts and Vincent Schiraldi / Harvard Kennedy School Program in Criminal Justice Policy and Management]

Gottschalk pointed to the specific programs that focus on those, more positive factors, but are chronically underfunded, whether inside prisons or for when people return home. “Opportunities to participate in meaningful employment, education, and self-improvement programs,” she wrote, “foster safer, more humane, and less degrading prisons.” Those programs “are a public acknowledgment that people who are incarcerated are still citizens who do not deserve to be warehoused in degrading, abusive environments.” Yet they are chronically underfunded “thanks to the obsession with recidivism rates.” Similarly, the focus on recidivism and risk assessment, makes the First Step Act “more about catching a person doing something wrong” rather than guaranteeing the housing, health care, and other supports people need to “successfully return to their communities.” [Marie Gottschalk / Jacobin]

Stories From The Appeal


Bronx DA’s website

Bronx DA Says She Wants to Reduce Overdose Deaths, But Opposes A Program That Can Help. Darcel Clark’s approach to overdose deaths continue the criminalization of drug users and put her on the wrong side of history, advocates say. [Raven Rakia]

Stories From Around the Country

DA runs for judgeship, requires all employees to sign confidentiality agreements: District Attorney Craig Stedman of Lancaster County, Pennsylvania, has mandated that all employees of his office sign “a confidentiality agreement that prohibits them from speaking to the public and media,” reports LancasterOnline. Stedman is running unopposed, with the endorsement of the Republican Party, for a seat on the county Court of Common Pleas. The prohibition on employees’ speech was circulated in February, and suggests, according to the website, that Stedman has become “increasingly concerned about his reputation amid growing scrutiny over his handling of personnel matters, allegations he tried to engineer the Republican endorsement process and his use of at least $21,000 in drug forfeiture money to lease a 2016 Toyota Highlander.” The ACLU of Pennsylvania reviewed a copy of the agreement provided by LancasterOnline and said that requiring government employees to sign it violates both the First Amendment and state’s Whistleblower Law. [Paula Knudsen and Carter Walker / LancasterOnline]

Delaware attorney general reforms policies on prosecution: Attorney General Kathleen Jennings, who oversees the state’s prosecutors in an unusual arrangement, issued new policies aimed at curbing the incarceration and recidivism rate. She instructed prosecutors to pursue more diversion, to reduce the use of cash bail, and to limit the number of charges and the length of incarceration or probation, among a range of reforms. But state advocates told The Appeal: Political Report of obstacles ahead, most notably the fact that the attorney general proposed many of those reforms in the form of “presumptive guidelines,” and that their implementation will depend on deputy prosecutors’ interest in reform. [Daniel Nichanian / The Appeal: Political Report]

The argument that the Green New Deal is a public health program: The Philadelphia Inquirer’s Abraham Gutman describes the Green New Deal as “a public health program that will save hundreds of thousands of lives.” He points out that “More than 70,000 people in the U.S. died of an overdose in 2017—and about half a million died in the past decade … By setting the agenda on the root causes of addiction, the Green New Deal is the ambitious plan we need.” Gutman traces the link between hopelessness and drug dependence and abuse. He quotes Jeffrey, a homeless man in Philadelphia who spoke with the journalist Chris Moraff for the podcast Narcotica: “It’s like [people in addiction] do wanna stop, but when they stop they have nothing to look forward to—no jobs, no housing, no normal friends as you call them.” This is what the Green New Deal, with its ambitious vision for saving the planet and ensuring health care, housing, and food, offers, Gutman contends. [Abraham Gutman / Philadelphia Inquirer]

Letter to the Editor: Describing California’s death penalty moratorium as ‘undemocratic’ ignores shifting public opinion: It’s not surprising that execution proponents immediately claimed that [Governor Gavin] Newsom’s announcement was “undemocratic” and pointed to recent elections [as] evidence. It’s an obvious messaging strategy for them: the California voters are firmly on one side of the issue, and Newsom is foisting his personal agenda on them in spite of it.

But not only were the votes reasonably close in the last initiative campaigns, the electorate is shifting—becoming younger, less white, and more informed about the damage mass incarceration policies (and by extension the death penalty) have caused.

Moreover, death penalty proponents might want to show a little humility about their victory in 2016. Their initiative only passed by 1%, and it was written with unconstitutional components to provide better talking points in the short term, even if those elements would be struck down later.—David Crawford, director of community outreach and education, Death Penalty Focus

Thanks for reading. We’ll see you tomorrow.

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