Chapter 17 
1. How is supermax confinement defined?
2. What is the primary purpose of supermax prisons under the “new penology” thesis?
3. What are the key differences between Alcatraz Penitentiary and Marion Penitentiary?
4. What does the facilitation argument posit?
Chapter 18
1. In Furman v. Georgia (1972), Furman argued that two of his rights were being violated. Identify the constitutional amendments.
2. What are the two forms of the new death penalty law?
3. What did the mandatory death penalty statute obligate the states to do?
4. What did the guided discretion death penalty statute obligate the states to do?
Chapter 19
1. What do community service officers do?
2. What is the conservative perspective of reentry?
3. What is the liberal perspective of reentry?
4. Why are risk assessment tools important?
Chapter 20 
1. What did the U.S. Supreme Court rule in Cooper v. Pate (1964)?
2. What is realignment?
3. What did the Public Safety Realignment Act of 2011 do?
4. What is the purpose of the executive committee that was created by the county?
Inmates housed in supermax confinement are typically locked down in single cells for 23-hours a day and provided limited opportunities to shower and exercise (Haney, 2003; Richards, 2008). A National Institute of Corrections report published in 1997 noted differences in supermax units across state, federal, and Canadian prison systems. The report indicated that 22 of 34 Departments of Corrections (DOCs) that operated a supermax facility permitted inmates to be released directly to the community following super-max confinement. Twenty-three DOCs had a transitional process where prisoners could earn transfer from the supermax to less secure facilities. Sixteen permitted inmate-to-inmate contact in a supermax, and 13 offered supermax prisoners program opportunities outside their cells. Supermax inmates were provided library services in 25 DOCs, education programs in 21, anger management training in 12, and substances abuse training in 9 DOCs.
Supermax prisons have ignited controversy in academic and correctional discourse due to thenature of supermax confinement, but isolating inmates who pose safety and security risks from the general prison population to minimize institutional disturbances is not a new idea. Institutional segregation has existed for decades in most high-security prisons in the United States. At its roots, the modern supermax is a segregation unit. What makes supermax confinement different from other institutional segregation units is that it typically involves long-term placement and supermax prisons may exist as stand-alone institutions rather than one part of an existing prison (Riveland, 1999; Stickrath & Bucholtz, 2003).
The supermax continues an impressive trend of U.S. contributions to correctional history. Similar to other American penal innovations, such as probation and the reformatory prison, the supermax has its champions and critics. This chapter describes the rise of the supermax from its early beginnings at Alcatraz and Marion federal prisons. We critically examine justifications for supermax confinementand explore its financial and legal implications. The chapter concludes with recommendations for improving supermax policy and guiding research on this controversial practice.
The Back Story: The Rise of Supermax Confinement
Although the widespread use of supermax confinement is a relatively recent phenomenon, early American prison administrators frequently used solitary confinement, a technique that supermax prisons employ today. In the 1700s and early 1800s, prison administrators often housed inmates in single cells in order to isolate them from the ills of society and all forms of human contact (Pizarro, Stenius, & Pratt, 2006; Stickrath & Bucholtz, 2003; Toch, 2001). In the mid to late 1800s, prison administrators limited the use of solitary confinement due to the harsh effects isolation had on inmates (e.g., development of mental illnesses) (Pizarro & Stenius, 2013; Toch, 2003). Scholars remain divided about which prison constitutes the first true supermax facility. Chase Riveland (1999) and Ward and Werlich (2003) suggested that the Alcatraz penitentiary, located outside San Francisco, California, was the first supermax prison, while Stephen Richards (2008) and R. D. King (1999) argued that the federal penitentiary at Marion, Illinois, was the first long-term lockdown facility.
Alcatraz was opened by the Federal Bureau of Prisons in 1934, and it operated for 29 years (Riveland,1999). During its operation, Alcatraz housed some of the most notorious offenders (e.g., Al Capone) in the United States (Ward & Werlich, 2003). However, there are several key differences between Alcatraz and modern supermax facilities (King, 1999; Ward & Werlich, 2003). For instance, Alcatraz did not house problematic inmates who violated institutional rules, but instead imprisoned hardened criminals and escape risk inmates (Ward & Werlich, 2003). The rules at Alcatraz also allowed inmates to work outside their cells and spend time in the exercise yard with other inmates. Many modern supermax facilities do not permit inmates outside of their cells for work or allow them to interact with other inmates (King, 1999). However, the rules at Alcatraz were strict and vigorously enforced (Ward & Werlich, 2003). Primarily due to the cost of operating Alcatraz, the facility was closed in 1963.
The federal penitentiary at Marion, Illinois, opened in 1963 and was designed to replace Alcatraz. Similar to Alcatraz, inmates housed in Marion were designated as unfit or too dangerous to be housed in general population prisons. Initially, inmates housed in Marion spent most of their time in solitary confinement, but they also participated in some rehabilitative programming. In the 1970s, administrators at Marion began using blocks of control unit cells, where inmates would spend 23 hours locked down in single cells (Ward & Werlich, 2003). In 1983, however, two correctional officers at Marion were murdered, which resulted in a significant increase in security. Marion became the first prolonged lockdown prison in the United States (King, 1999; Richards, 2008). The strict long-term lockdown status lasted 24 years, and effectively transformed Marion into a control unit, or what is currently referred to as a supermax prison (Richards, 2008). A description of life inside Marion following the elevation to supermax status can be described as follows:
Even under these restraints, no inmate was to be moved from his cell for any reason without a supervisor and several officers to escort him. Basic law libraries were installed in each unit to reduce the opportunity for inmates to pass messages and contraband from unit to unit, hidden in legal papers and law books. Weightlifting and bodybuilding equipment was removed and exercise was limited to walking or jogging in a very small area, calisthenics, and the use of a chin-up bar. (Ward & Werlich, 2003, p. 58)
Marion was downgraded to a medium security prison in 2007, but it still serves as a model supermax facility for the states (Richards, 2008).
Drawing from the ideas applied in the federal system at Alcatraz and Marion, many states constructed supermax prisons during the 1980s and 1990s in an effort to separate, isolate, and control problematic inmates (Mears & Castro, 2006). In many respects, the rise of supermax prisons reflect an outgrowth of what Feeley and Simon (1992) termed the “new penology” (see also Pizarro et al., 2006; Ward & Werlich, 2003; Wells, Johnson, & Henningsen, 2002). According to Feeley and Simon (1992), the primary goal of imprisonment evolved during the 1980s from a focus on individual considerations (e.g., rehabilitation) into the management or control of large offender populations with a heavier focus on risk assessment and custodial classification. Supermax prisons embody the new penology in that their primary purpose is to physically separate the highest-risk inmates, or so called “worst of the worst,” from the general inmate population. These high-risk inmates are then managed by restricting their opportunities for deviance through separation and isolation.
In 1984, only one prison in the United States fit the description of a supermax prison (National Institute of Correction, 1997). By 1999, however, approximately two-thirds of the states had supermax prisons and approximately 20,000 inmates were housed in supermax confinement (King, 1999). By 2005, the number of states operating a supermax prison had increased to 44 and roughly 25,000 inmates were confined in supermax housing (Mears, 2006). With the expansion of supermax prisons in the United States, these facilities largely remain an American solution for handling high risk offenders (King, 1999).
The Current State of the Policy: Is the Supermax a “Good” Correctional Practice?
Supermax prisons are tasked with achieving multiple goals (Mears & Watson, 2006). Mears and Castro’s (2006) national survey of prison wardens revealed that over 95% of wardens agree that supermax prisons should strive to increase safety, order, and control throughout the prison system as well as segregate violent and disruptive inmates. Wardens overwhelmingly advocated using supermax confinement to improve inmate conduct (84%), decrease prison riots (82%), reduce prison gang influence (79%), and prevent inmate escapes (72%). The main arguments for supermax confinement attaining these goals are grounded in incapacitation and deterrence theories. This section of our chapter breaks down these arguments, provides an overview of supermax research, and discusses relevant financial and legal issues.
Incapacitation refers to isolating harmful people to increase the safety of others by reducing opportunities for victimization. The existence of prison systems, not just supermax units, is justified in part because of this premise. In fact, the astronomical growth in U.S. prisons since the mid-1970s was fueled largely by a belief in the potential of incapacitation (Garland, 2001; Zimring & Hawkins, 1995). Supermax prisons are used to incapacitate within prison systems by segregating the highest risk inmates, making them physically incapable of committing offenses directly within the general prisoner population. Supermax units also pursue broader incapacitative goals for society by enhancing physical security over problematic and escape-prone inmates (Mears, 2006). Very few escapes from supermax facilities have been documented, although these observations must be tempered by the fact that there have been very few escapes from prisons of any security level.
The incapacitation justification for reducing system-wide violence and disorder is also tied to the notion that people sent to supermax units are not just perpetrators of prison disruption, but that they have a facilitation effect on institutional violence and disorder (Mears & Reisig, 2006). The facilitation argument maintains that certain inmates influence the actions of others. For example, a number of correctional departments experience gang-related problems in their prison systems. Some gangs, such as the Aryan Brotherhood and Mexican Mafia, demonstrate a vertical organizational structure, which implies that the actions of ground-level “soldiers” are inspired and directed by gang leaders (Seiter, 2005). If the leadership is disbanded through supermax segregation, one potential outcome is that the lower-ranking members become less active without orders from the gang leaders (Mears & Reisig, 2006).
Another argument is that removing troublesome inmates from the general population creates a better environment throughout the general population facilities. Even though prisons house people regarded as hostile, unruly, dangerous, and difficult, our correctional institutions are not erupting in riots on a daily basis. Rather, American prisons typically appear quite orderly, which has been attributed in part to an embedded and self-imposed inmate code of conduct (Bottoms, 1999; Crouch & Marquart, 1990; Engel & Rothman, 1983). A key aspect of this conduct code that generates order is the recognition that extreme rule violations by one or a few people, such as stabbings and massive destruction of property, can result in uncomfortable living arrangements for all inmates, including complete lockdowns in housing units (Johnson, 2002; Useem & Kimball, 1989). If a few “bad apples” are acting out and multiple inmates are feeding into the behavior, then the removal of those nonconforming inmates could normalize the prison environment and lead to more orderly behavior in observance of the inmate code (Kurki & Morris, 2001; Mears & Reisig, 2006; Ward & Werlich, 2003). With fewer problem inmates within the general inmate population, inmate programs, such as education classes, vocational training, and cognitive therapy, should function more efficiently (Mears & Reisig, 2006). This latter result is a critical benefit as the integration of inmate programs in prisons is related to greater order and less violence (Byrne & Hummer, 2008a).
There are several counterarguments that question the utility of the incapacitation strategy. One key assumption of the incapacitation argument is that the inmates who are the most likely to habitually commit extreme acts of violence and disruption can be identified (Mears & Reisig, 2006). In other words, the incapacitation position hinges on being able to predict the future behavior of troublesome inmates (Walker, 2011). It is one thing to place a disruptive inmate in lockdown; it is another to be certain that the isolated inmate would continue his or her disruptive path if given alternative sanctions and left in the general population. Although past behavior is one of the best predictors of future behavior offender risk assessment instruments have been shown to over or under classify a notable percentage of the inmate population (Wright, Clear, & Dickson, 1984). While segregating problem inmates from the rest of the prison population keeps them from personally injuring staff and inmates in the general population, we simply do not know how much direct harm is prevented.
Supermax prisons could increase violence and disruptive behavior by placing staff and inmates in environments (i.e., supermax units) with higher concentrations of serious and violent offenders in relatively small locations. In effect, the supermax itself might create a “hot spot” of institutional violence and disorder. The number of prison assaults are greater in higher security facilities than in lower security institutions (Byrne & Hummer, 2008b), but no studies have made comparisons specifically with supermax facilities. Supermax prisons may create “self-fulfilling” prophecies among inmates, where inmates accept the violent, “worst of the worst” label and proceed to act accordingly (King, Steiner, & Breach, 2008).
Questions also exist regarding how effectively supermax placements can reduce the influence of supermax-confined inmates, especially inmates affiliated with prison gangs and security threat groups. Incarcerated gang leaders have ordered acts of violence and controlled street gang activities outside the prison. Supermax inmates can also send messages through other inmates and staff to direct violence and other illegal activities like drug distribution in the general population. Well-developed coding schemes have been constructed by prison gangs to issue commands and avoid detection from institutional authorities (Mears & Reisig, 2006). Unfortunately, the success of message communication from supermax prisoners to general population inmates has not been empirically examined.
Removing gang leaders from the general population also has the potential to create power vacuums that encourage violent encounters. Layered organizational structures can sometimes serve to constrain the aggressive and unruly tendencies of members (McAdam, 1986; McCauley & Segal, 1987; Piven & Cloward, 1977; Smith, 1994). Those in charge have an interest in reigning in disorderly behavior so that the group’s plans are not exposed and administrative surveillance is not increased. When the leadership unravels, the organizational constraints loosen and members begin questioning who is in charge. This outcome can set the stage for physical confrontations to fill vacant leadership roles. Additionally, those engaging in prohibited activities, such as extortion and drug distribution, whether individually or in small groups may become emboldened and consequently more active in their misconduct due to the absence of a control-oriented leadership structure (Decker, Bynum, & Weisel, 1998; Jankowski, 1991; Shelden, Tracy, & Brown, 2004)
Another possibility that may decrease the impact of the supermax incapacitation strategy relates to the realities of prison gang organizational structure. The counterarguments above assume that gangs are well organized in prisons. While hierarchical structures can exist in street and prison gangs, many gangs are not highly organized (Decker et al., 1998). In less organized gangs, leadership is transitory and members are less inclined to act on the instructions of a leader (Shelden et al., 2004; Jankowski, 1991). For these types of gangs in prisons, placing the current leader in isolation may have limited influence on gang member behavior.
Inmates not affiliated with gangs are also capable of creating problems within prisons. One example is an inmate resistant to institutional control who takes every opportunity to destroy property and harass staff, such as tearing out sinks and toilets from walls and throwing fecal matter from cells at officers. The typical correctional response to this destructive behavior is placement in a segregation unit. However, if inmates engaging in such behavior are released from segregation only to continue the misconduct, the general prisoner population might interpret this as indicating that prison authorities and staff are unable to adequately handle such problems. Therefore, other inmates could be encouraged to defy prison authority merely from the example set by the unruly prisoner, and not from any specific orders or directions. These types of situations involving inmates who appear undeterred by prison authority are cited when analyzing the initial stages of prison riots (Useem & Kimball, 1989). Unfortunately, it is difficult to assess inmate perceptions and responses to high profile displays of defiance. This lack of knowledge makes it difficult to assess the incapacitative value of supermax placements for undeterred inmates similar to the one described. In all, if extremely troublesome inmates are removed from the general population and there is no appreciable influence on levels of inmate misconduct, the argument regarding the normalization of the prison environment through the segregation of the “worst of the worst” is difficult to justify (Mears & Reisig, 2006).
Deterrence can be divided into two types: general and specific. Regarding supermax prisons, general deterrence refers to discouraging general population inmates from engaging in seriously disruptivebehavior due to the threat of placement in supermax confinement. Specific deterrence refers to the actual experience of supermax confinement discouraging future deviance among inmates who are placed there. For deterrence to work, it was theorized long ago that the punishment associated with a criminal act or prison violation must be swift, certain, and proportionate to the offense committed (Beccaria, 1986).
The criminal justice system is often portrayed as incapable of achieving or sustaining deterrent out-comes for a variety of reasons, such as an overburdened court system that delays punishment and extensive plea bargaining which dilutes the punitiveness of criminal sanctions. However, the prison disciplinary system is quite different from the criminal justice system. One fundamental difference is that punishment for prison rule violations is more swiftly imposed than in the criminal justice system. Prisoners are afforded limited due process protections when misconduct is reported. In addition, conduct adjustment boards are not as backlogged as the criminal courts. Accordingly, it is likely that judgments regarding misconduct that might result in supermax housing are quickly determined.
Research suggests that the certainty of punishment is the most critical component for achieving effective deterrence (Wright, 2010). It is here that the deterrent power of supermax prisons must be questioned. King’s (2005) interviews with supermax prisoners in Minnesota and Colorado revealed that supermax placements were perceived by inmates to be arbitrary and the duration of confinement far too discretionary. This is not a surprising discovery as it fits with Samuel Walker’s (2011) law of criminal justice thermodynamics. That is, increasing the severity of a penalty leads to less frequent application, and, when applied less often, its use becomes more arbitrary.
From a general deterrence perspective, if prisoners perceive a weak probability of going to the super-max for committing a serious rule violation, the certainty aspect is not fulfilled. An equally important consideration is that getting caught committing a violation that can incur supermax placement might seem unlikely to inmates. For example, a predatory inmate rapist may be confident that fellow offenders will uphold the code against snitching and not report sexual assaults (Fleisher & Krienert, 2009). Kingpins in the underground drug economy of prisons may see little chance of authorities identifying them as major drug distributors. Research suggests general deterrence may not be effective because so few inmates are sent to supermax prisons, approximately 2% of the inmate population (Mears & Reisig, 2006; Riveland, 1999).
The impact of the potential consequences of supermax in the general population is one aspect to consider, but actually experiencing supermax confinement (i.e. specific deterrence) brings its own unique considerations. Serving time in the isolated confines of a supermax unit is typically portrayed as a severely unpleasant experience. The supermax represents the pinnacle of incarceration deprivations, which have long been associated with the term “pains of imprisonment” (Johnson, 2002; Sykes, 1958). Supermax confinement encapsulates deprivation by restricting physical movement and removing social contact, such as phone and visitation privileges. Psychological effects from extreme and prolonged isolation are regarded as the most challenging part of supermax confinement (King et al., 2008; Mears & Watson, 2006; Pizarro & Stenius, 2013). Scientifically based studies on the specific impact of isolation in a supermax on a prisoner’s mental state have not yet materialized. Nonetheless, scholars are quick to point out that solitary confinement in any form produces psychological consequences, such as cognitive disruption, memory decay, heightened anxiety, depression, and suicidal ideation (Grassian, 1983; Haney, 2003, 2008; Kupers, 1996; Rhodes, 2005). A study of Washington state inmates assigned to a supermax unit indicated that one out of every four to five residents experienced mental health issues during their confinement; however, the findings do not identify if these symptoms were attributable to supermax conditions or prior psychological impairments (Cloyes, Lovell, Allen, & Rhodes, 2006; Lovell, Cloyes, Allen, & Rhodes, 2000).
Due to the harsh environment of supermax confinement, it may be expected that inmates will abstain from institutional misconduct to prevent returning to segregation. However, the unpleasant aspects of supermax confinement that are designed to deter misbehavior could also serve to increase misbehavior. If inmates do not believe that supermax classification decisions were just, they might react with defiance (Ward & Werlich, 2003). This emotional discontent could elevate hostility against the prison system, resulting in increased violence and disruption (King, 2005). Supermax confinement may also increase mental deterioration among inmates, which can result in loss of self-control and higher levels of impulsivity (Haney, 2003).
What Research has Taught Us: The Impact of Supermax Prisons
A few studies assessed whether supermax facilities contribute to decreases in violence and disorder. Ward and Werlich (2003) examined records of inmates who were either confined in Alcatraz or Marion to evaluate the effects of supermax confinement. Ward and Werlich found that 3% of Alcatraz inmates who were recirculated into the federal prison system returned to Alcatraz for disciplinary problems. Approximately 50% of Alcatraz inmates avoided returning to prison after their release, compared to 37% of maximum-security inmates confined in Leavenworth Federal Penitentiary. Roughly 16% of prisoners housed in Marion returned to Marion following their transfer to a different facility. The re-imprisonment rate for Marion inmates was 49%, nearly the same as the rate among Alcatraz inmates.
Ward and Werlich (2003) arrived at the following conclusion:
-release measures for the Alcatraz prisoners, the decline in misconduct, which allowed more than 80% of the Marion prisoners to remain in lower custody institutions to which they were transferred, and the ability of half of the Marion cohort to stay out of prison to date provide evidence, albeit tentative, that the predictions of destructive behavioral consequences, namely violence, resulting from long-term incarceration in supermax prisons do not appear to hold true for most of the men in these populations of federal prisoners. (p. 64)
Although the prisoners at Leavenworth returned to prison at lower rates than Alcatraz inmates, Ward and Werlich emphasized that the expectation would be that there were much higher return rates for supermax inmates, if significant psychological damage was inflicted in the supermax units.
Briggs, Sundt, and Castellano (2003) examined the impact of the implementation of supermax facilities on inmate-on-inmate and inmate-on-staff violence in three state prison systems: Arizona, Illinois, and Minnesota. Specifically, these researchers examined whether system-wide violence decreased after the supermax units were opened. Briggs and colleagues found no statistically significant decreases in inmate-on-inmate violence that could be attributed to the implementation of a supermax unit in any state. Mixed results emerged from the analysis of inmate-on-staff violence. In the periods following the implementation of supermax units, assaults against staff decreased in Illinois, increased temporarily in Arizona, and stayed the same in Minnesota.
Lovell, Johnson, and Cain (2007) examined the effects on recidivism of exposure to supermax confinement in Washington state, while Mears and Bales (2009) conducted a similar study with data collected from inmates confined in Florida. In general, both studies revealed that the odds of recidivism were the same between offenders exposed to supermax confinement and offenders not exposed to supermax confinement. However, Lovell et al. (2007) observed that offenders released directly from a supermax prison were more likely to reoffend than offenders directly released from another prison. Mears and Bales (2009) found that offenders exposed to supermax confinement were more likely to recidivate via violent offenses than offenders who were not confined in a supermax prison.
These four studies have broken fresh ground in the supermax literature, but additional research is needed. Researchers Ward and Werlich and Briggs and colleagues examined whether supermax prisons achieve their top goal, which is reducing inmate violence and disorder. Unfortunately, both studies have methodological limitations which limit strong conclusions. For example, Ward and Werlich’s approach to examine inmate returns to supermax prisons after recirculation into the general population does not measure system-wide impact, and studying Alcatraz as a supermax prison is highly questionable. Briggs and colleagues examined how levels of violence fluctuated before and after implementation of a super-max prison, but did not consider other variables which might simultaneously affect prison violence. For example, changes in staff-inmate ratios, prison policy, management style, officer training, access to rehabilitation programs, physical security and inmate monitoring technology all could influence prison violence. In addition, Briggs et al. acknowledge potential problems with incorporating the Minnesota supermax into their study, because of its description as a podular-design unit providing extensive opportunities for educational and rehabilitative programming. The Lovell, Johnson, and Cain research in 2007 and the Mears and Bales studies in 2009 focused on recidivism effects from supermax confinement, notwithstanding the statistic that only 24% of prison wardens feel that lowering crime levels should be a supermax goal (Mears & Castro, 2006). The ultimate conclusion from the research thus far is that the question of whether supermax incarceration is a good correctional policy is far from answerable, necessitating more sophisticated studies.
Race, Class, and Gender Implications
Mass incarceration, which began in the 1980s, has contributed to the disproportionate imprisonment of racial and ethnic minorities (Alexander, 2012; Travis, 2005), as well as notable increases in the rate of imprisonment among women relative to men (Beck & Harrison, 2001; Guerino et al., 2011). Estimates suggest that approximately one in three Black males and one in six Hispanic males will be incarcerated during their lifetime, compared to only one in 17 White males (e.g., Bonczar & Beck, 2003). Similarly, although the odds of imprisonment are still much higher for men relative to women, the gender gap has closed considerably over the past 30 years (Guerino et al., 2011). The overall growth in prison populations has provided new challenges to correctional administrators, including managing increasingly heterogeneous populations of inmates. Correctional administrators have used supermax facilities to manage some of the problems resulting from the increases in the prison population, such as reducing gang influence, increasing public safety, and punishing violent inmates (Mears & Watson, 2006). Yet, little is known about the race, class, and gender composition of inmates in supermax confinement.
The limited knowledge concerning female inmates and supermax confinement is probably attributable to the fact that women are rarely (if ever) placed in supermax confinement. For instance, Mears and Bales (2009) reported that only nine women released from prison between 1996 and 2001 in the state of Florida had served time in supermax confinement. Lovell et al. (2007) observed that Washington state’s supermax program was only used for men. Women respond differently to incarceration than men, and female inmates are less likely than men to engage in the type of violent behaviors that result in supermax placement (Lord, 2008). Thus, supermax confinement for female inmates may simply not be needed in most states.
Social class is a difficult concept to study among prison inmates because nearly all inmates are drawn from lower socioeconomic strata. Prison inmates are also drawn disproportionately from disadvantaged neighborhoods (Rose & Clear, 1998; Sampson & Loeffler, 2010). Perhaps for this reason, no studies have examined the link between social class and supermax placement. Closely tied to class, however, is race and ethnicity. Black individuals, for example, are much more likely than White individuals to reside in disadvantaged areas, and this has been the case for a number of generations (Sharkey, 2008; Wilson, 2010). Further, compared to residents of disadvantaged White neighborhoods, residents of disadvantaged Black neighborhoods experience greater levels of social isolation and disadvantage (Krivo & Peterson 1996; Sampson & Bean, 2006). Evidence also suggests that other ethnic minority groups (e.g., Hispanics) might also experience greater disadvantage compared to Whites (Sampson & Bean, 2006).
Regarding race and ethnicity, some researchers observed that minority inmates are more likely to experience supermax confinement than Whites (Lowen & Isaacs, 2012; Mears & Bales, 2009; O’Keefe, 2008; Reiter, 2012). For instance, researchers found that Hispanic inmates were more likely to experience supermax confinement than White inmates or Black inmates in California, Colorado, and Arizona (see Lowen & Isaacs, 2012; O’Keefe, 2008; Reiter, 2012). In California, approximately 56% of all inmates released from supermax confinement in 2007 were Hispanic, compared to 42% who were Black or White (Reiter, 2012). Similar trends were found between 1997 and 2007, and Hispanic inmates also served longer periods of time in supermax units, compared to other racial/ethnic groups (Reiter, 2012). O’Keefe (2008) also found that Hispanic inmates were overrepresented in Colorado’s administrative segregation units and in supermax admissions, compared to Whites or Blacks. Mears and Bales (2009) reported that 75% of their sample of inmates released from prison between 1996 and 2001 who were housed in supermax confinement were Black, while 5% were Hispanic, and 20% were White. By contrast, Lovell et al. (2007) reported that only 35% of their sample of supermax inmates in Washington state were nonwhite.
It is important to note that none of the studies discussed above focused specifically on understanding whether race or ethnicity influenced supermax placement. Since inmates are typically placed in supermax confinement for disruptive behavior, researchers inferred that the overrepresentation of minority offenders in supermax confinement is attributable to potential affiliations with gangs, such as the dominance of Latino affiliated gangs in California and Arizona (Lowen & Isaacs, 2012; Reiter, 2012), or that minority inmates are more likely to commit rule infractions, which could lead to supermax placement. An inmate’s race or ethnicity is often used as one identifying characteristic of membership in a gang or security threat group because prison gangs are often racially divided (Gaes, Wallace, Gilman, Klein-Saffran, & Suppa, 2002; Goodman, 2008). Evidence concerning the link between race and ethnicity and prison misconduct is mixed (Bottoms, 1999; Camp, Gaes, Langan, & Saylor, 2003; Griffin & Hepburn, 2006; Morris, Longmire, Buffington-Vollum, & Vollum, 2010; Sorensen, Cunningham, Vigen, & Woods, 2011; Steiner & Wooldredge, 2009a; 2009b; Wooldredge, 1991), although a meta-analysis did find an overall positive effect of minority status on rule violations (Gendreau, Goggin, & Law, 1997). Some researchers observed that Black or Hispanic inmates are more likely than other inmates to commit violent misconduct (e.g., assaults on inmates) (see, e.g., Berg & DeLisi, 2006; Gaes et al., 2002; Harer & Steffensmeier, 1996; Huebner, 2003; Sorensen, Wrinkle, & Gutierrez, 1998; Steiner & Wooldredge, 2009a; 2009b; Wooldredge, 1994), although the evidence is certainly not conclusive (Camp et al., 2003; Griffin & Hepburn, 2006; Wright & Goodstein, 1989). If minority inmates are more likely to be involved in prison gangs or commit violent rule infractions, then it stands to reason that they would also be more likely to “earn” a placement in supermax confinement.
Given the evidence presented above, the disparate confinement of minority groups in supermax custody does present an important avenue for future study. More research is clearly needed to assess the extent to which supermax length of stay, treatment, and programming amenities differentiate between minority and White inmates.
Financial Costs
While the intent of this chapter is not to pit benefits against costs, it is important to recognize the substantial financial investments required to build and sustain a supermax. Supermax prisons are expensive due to the retrofitting of cells or construction of new facilities that are designed to house violent, disruptive, and problematic inmates in prolonged solitary confinement (Riveland, 1999). These institutions require architectural designs and numerous technological devices that add to operational expenses. Steel-frame doors, single-cells with electronically controlled doors, and recording monitors represent a few of the technological advances used to enhance security within these facilities. The Tamms penitentiary in Illinois cost taxpayers roughly 75 million dollars to construct (Kurki & Morris, 2001), while construction of the Pelican Bay State prison in California cost over 250 million dollars (King et al., 2008).
In addition to the costs associated with constructing and maintaining supermax facilities, staffing and training costs are considerably higher for supermax facilities (Riveland, 1999). It is not uncommon for policies pertaining to supermax confinement to dictate that all inmates housed in supermax housing need to be escorted in shackles by more than one officer each time they exit their cell (see, e.g., King et al., 2008). Policies like these, along with the extra security required in facilities that house a state’s highest risk inmates, demand a higher number of allocated staff for these facilities compared to lower security facilities. For example, the Ohio Department of Rehabilitation and Correction allocates approximately one security staff member for every two inmates housed in its supermax facility compared to a ratio of nearly three to one at Ohio’s maximum security facility, and ratios of six or seven to one at close security facilities in that state. All of this translates into higher costs associated with operating supermax facilities compared to lower security facilities. Each prisoner housed in the Tamms Penitentiary costs the state of Illinois $36,000 annually, which is nearly double the cost associated with housing an inmate in a maximum security facility in that state (Kurki & Morris, 2001). The cost of housing a supermax inmate in Colorado is $32,000 per year or close to $90 per day, compared to $18,500 per year and just over $50 a day at a maximum security institution in that state (Pizarro & Stenius, 2013). The daily cost of housing an inmate in Ohio’s supermax facility is 50% higher than the comparable cost at Ohio’s maximum security facility and roughly 100% higher than the comparable cost at Ohio’s close security facilities.
Legal Issues
Determining the wisdom of a criminal justice policy is not simply a question of whether it provides desired results, but also whether the policy can withstand constitutional scrutiny. The isolated conditions of supermax confinement along with due process considerations related to supermax placement and review hearings have generated considerable legal debate (Goode, 2012; Haney, 2003; Matthews, 2010). Most suits filed on behalf of inmates have challenged the conditions of supermax confinement (King et al., 2008; Madrid v. Gomez, 1995). These suits allege that supermax confinement or aspects of supermax confinement violate inmates’ right to protection from cruel and unusual punishment guaranteed under the Eighth Amendment to the U.S. Constitution. Although some suits filed on inmates’ behalf have been successful, the use of solitary confinement has typically been found constitutional (e.g., Ford v. Bd. of Managers of N.J. State Prison, 1969; Madrid v. Gomez, 1995). However, courts have not providedunconditional support for the use of supermax facilities, but instead tried to balance needs pertaining to institutional security alongside protecting inmates rights, specifically the mentally ill (Haney, 2003).
With regard to objective conditions of confinement (e.g., exercise, clothing), the courts have often evaluated the constitutionality of supermax confinement by applying the “evolving standards of decency” test, which states a community’s “broad and idealistic concepts of dignity, civilized standards, humanity, and decency are useful and useable” (Jackson v. Bishop, 1968, p. 404). Under the evolving standard of decency test, the legality of supermax confinement rests, in part, with the public’s standard of what constitutes acceptable punishment (Toch, 2001). Courts have also wrestled with the degree of psychological deterioration that constitutes a violation of the Eighth Amendment because harms associated with psychological punishment are more difficult to define and quantify than injuries suffered from corporal punishment. The standard by which courts have evaluated psychological punishment and corresponding medical care is the deliberate indifference test, or whether the conditions harm the inmate or present a serious risk of substantial harm, and whether the officials are intentionally or purposefully indifferent to that risk (Wilson v. Seiter, 1991).
Inmate lawsuits have argued conditions of confinement worsen an individual’s mental state (Goode, 2012; Madrid v. Gomez, 1995, Ruiz v. Johnson, 1999). Specifically, these suits have alleged that prolonged exposure to supermax confinement results in sensory deprivation that contributes to psychological deterioration that inhibits inmates’ ability to function during and after incarceration (Grassian & Friedman, 1986; Haney, 2003). Some suits challenging the constitutionality of supermax confinement have argued that sensory deprivation in conjunction with preexisting mental disorders worsens the mental state of inmates in supermax confinement (see Madrid v. Gomez, 1995; Ruiz v. Johnson, 1999). In Ruiz v. Johnson (1999), the Supreme Court held that prison administrators acted in deliberate indifference inhandling supermax inmates with mental illnesses. Other cases pertaining to the conditions associated with supermax confinement that were decided on behalf of inmates include Madrid v. Gomez (1995), Taifa v. Bayh (1994), and Jones ‘El v. Berge (2001). Taken together, these decisions state that althoughthe use of supermax confinement may not directly violate the constitution, its practice and implementation require prison administrators to closely monitor inmates suitable for placement.
The process by which inmates are placed in supermax confinement has also been subject to litigation. For example, an inmate entering prison may sometimes move directly to supermax confinement simply due to the nature of their committing offense or gang membership. A study of Mississippi State Penitentiary’s supermax unit (Unit 32) revealed approximately 800 inmates were indiscriminately classified, such as admitting non-violent inmates, confining inmates for their criminal offense, and placing protective custody inmates in Unit 32 (Kupers et al., 2009). In response to a suit alleging cruel and unusual punishment and violations of due process rights, the Mississippi Department of Corrections agreed to reevaluate their inmate classification process, which ultimately led to the transfer of 800 inmates from supermax confinement. Specifically, revisions to the classification process required that inmates engage in unambiguous behaviors that constitute a threat to the institution before they could be housed in supermax confinement (Kupers et al., 2009).
In 2005, the U.S. Supreme Court’s unanimous decision in Wilkinson v. Austin further clarified the admission requirements for supermax confinement. Current and former inmates of the Ohio State Penitentiary filed suit against the Ohio Department of Rehabilitation and Corrections in reference to the Department’s policy governing inmate admissions to supermax confinement. The suit alleged that the policy violated inmates’ due process rights as applied by the Fourteenth Amendment.
After the suit was filed, the Department implemented a new policy governing the admission process for supermax confinement. Under the new policy, inmates were provided a presentation of the facts leading to placement in supermax confinement and an opportunity to contest allegations or placement decisions. If a classification reviewer overturned a placement decision or a reviewer disagreed with a placement decision, then the placement process was to be terminated. The policy also stated that inmates housed in supermax confinement would be reviewed within the first 30 days of confinement and annually thereafter. In addition to the procedures regarding admission to supermax confinement outlined in the new policy, in 2004, the Sixth Circuit Court went one step further when they ruled that the Department must document specific behaviors to be considered during the decision. However, the Supreme Court reversed the Sixth Circuit Court’s decision stating that Ohio’s new policy was compliant with the Fourteenth Amendment’s procedural due process requirement. Among other things, the Court stated that the provision of “notice of the factual basis for a decision and a fair opportunity for rebuttal are among the most important procedural mechanisms for purposes of avoiding erroneous deprivations” (p. 183).
In the Wilkinson v. Austin decision, the Court acknowledged that Ohio has a vested interest in the use and implementation of supermax units to prevent gang violence and disorderly inmates from harming others. However, the Court did confirm the Sixth Circuit Court’s ruling that placement in supermax units triggers a “liberty” interest, which means inmates should not be indiscriminately admitted to supermax units without adequate due process. This is because the restrictive and “atypical” conditions of confinement in supermax units should be used in circumstances where an inmate poses a consistent or serious problem to correctional administrators. More recently, the U.S. District Court for the Northern District of California also held that due process applies during inmate transfer proceedings. Specifically, the court held inmates are guaranteed minimal procedural protections, such as the ability to defend oneself prior to supermax confinement, a hearing within a reasonable time following admission to segregation, a notice of charges that led to supermax placement, and an opportunity to represent oneself during classification reviews (Lira v. California Director of Corrections, 2008).
Classification reviews decide whether continual placement in supermax confinement is necessary. In most states, internal administrative review committees oversee the length of stay, appeals, and progress inmates make within supermax confinement. Critics of these processes argue that determining inmate progress may be problematic because inmates have few opportunities to show behavioral change within supermax cells due to lack of available programming and inability to engage in social interactions with others (Haney, 2003).
In a national study of supermax prisons, Riveland (1999) concluded that the review process for inmates in administrative segregation is largely indeterminate, and an inmate’s chance of classification review is predicated by his or her threat to the institution. Determination of the threat an inmate poses to the institution is a subjective process, but most states define a list of inmate behaviors perceived as threats to the safety and security of the institution. For instance, Kurki and Morris (2001) found inmates in Tamms Penitentiary, Illinois undergo a placement review before the transfer committee every ninety days. Transfer can be denied if the inmate is affiliated with a gang or is believed to pose a considerable threat (e.g., behavior that endangers inmates or staff) to institutional safety. Inmates only go before the transfer committee themselves on an annual basis, and this meeting can occur at the inmate’s cell door. Based on the court’s decision in Lira v. California Director of Corrections (2008), however, it appears that courts require that some basic due process protections are afforded to inmates at review hearings, such as an opportunity to represent themselves during classification reviews.
How do We Fix It? The Future of the Supermax
Although the literature is inconclusive regarding the importance of supermax prisons, the tone in the scholarly literature is decidedly negative. Supermax confinement is described as creating monsters (King et al., 2008) and the correctional equivalent of “waste management” (Pizzaro & Narag, 2008). Suspicion regarding supermax prisons seems related to the negative connotations attached to solitary confinement. It is important to reiterate here that supermax prisons are simply an extension of institutional segregation, which is a staple of American corrections (Pizarro et al., 2006). What makes super-max confinement different is the extended amount of confinement in isolated settings. With so little concrete research on supermax facilities, it is hard to understand why people would strongly support or strongly oppose this practice. It may be that deeper philosophical orientations are at work in shaping perspectives on the supermax. The supermax could be viewed as a microcosm of the broader “get tough” incarceration movement of the past few decades. Consequently, a lack of faith in the supermax could be tied to dissatisfaction with this larger movement, whereas support could be linked to acceptance of tougher imprisonment policies. One thing is unquestionable: Supermax units are now embedded across the U.S. correctional landscape. Recognizing that an empirically based judgment of the supermax is not yet possible, this final section offers some tentative suggestions for operating and researching supermax facilities.
Recommendation #1: Require a Careful Evaluation by State and Federal Policy Makers and Practitioners in Correctional Fields to Determine the Need for Supermax Units
As an extension of institutional segregation practices, there seems little need for separate supermax units or entire supermax prisons if existing prison segregation units are able to effectively meet the demand (Mears, 2006). Adding a supermax prison unnecessarily to the existing bureaucracy increases strain on correctional administrators for operating an efficient and cost effective prison system.
Evaluating the need for supermax prisons must take into account alternative strategies for responding to highly dangerous and disruptive inmates. Riveland (1999) notes that the supermax is essentially a concentration approach to dealing with severe prisoner misconduct. The supermax provides one centralized location where the most problematic prisoners can be monitored in a setting designed to house high-risk offenders. Prior to the implementation of supermax facilities, a dispersion strategy was popular in state prison systems and this strategy continues to be the norm in many other Western countries (King, 1999). The dispersion strategy relocates the most troublesome inmates to other prison units which, in theory, prevents difficult offenders from bonding and offers staff directly supervising them some relief. The real question is whether modern American prison systems, many of which are overcrowded and receiving more gang members, have the capacity to effectively disperse problem offenders.
The need for supermax prisons may be offset by decreasing the number of eligible candidates for super-max confinement through readjusting the correctional environment. Some initiatives have been launched to improve correctional staff culture in the hope that positive effects will follow for inmates. A correctional staff culture that is less tolerant of staff-inmate harassment and achieves a greater “buy in” to programmatic efforts might engender a safer prison environment (Byrne, Hummer, & Taxman, 2008; Crawley & Crawley, 2008). Despite these efforts, it is reasonable to assume that acts of extreme violence and disorder will nonetheless remain part of prison life. The question becomes whether changes in the institutional environment can have sufficient impact so that existing institutional segregation units and non-isolation disciplinary measures can control disorderly inmates without the necessity of supermax classification.
Assessing the need of supermax facilities also requires careful consideration of net-widening effects. Net widening, within this context, refers to the process of admitting inmates to supermax custody because of available unit space, not necessarily due to misconduct (King, 2005). Many inmates engage in assaults and disruptive behaviors during their commitment periods, but supermax confinement is meant for the highest risk inmates. If “nuisance” inmates are sent to a supermax prison, supermax prisons are not serving their intended goals and net widening occurs. This phenomenon also has negative cost implications because less restrictive environments are cheaper than supermax confinement.
Recommendation #2: Identify Clear Goals for the Supermax and Closely Monitor Progress toward Achievement of these Goals
Mears and Watson (2006) list a number of goals pursuable by supermax prisons, including increasing institutional safety, increasing order and control throughout prison systems, reducing gang influence, punishing dangerous and disruptive inmates, enhancing public safety, and improving operational efficiency (2006, p. 242). The authors specify concrete performance measures which correspond to a specific goal. For example, the number of murders and assaults of staff and prisoners can measure the goal of increasing prison safety, the number of attempted and successful escapes can measure the goal of increasing public safety, and the proportion of inmates identified as gang members and the number of intimidation incidents by gang members can measure the goal of reducing prison gang influence.
Correctional officials and administrators should be cautious in developing goals for supermax prisons because heralding the supermax as a panacea for all correctional ills is a recipe for failure. A supermax unit typically contains a very small proportion of the overall prisoner population, sometimes less than 2% (King, 1999). It is hard to imagine how interventions affecting such small numbers can achieve multiple goals and produce substantial systemwide impacts. The supermax facility might best be conceived as a unit strictly for (a) containing inmates who engaged in or established plans to enact the most extreme acts of violence, such as conspiring to lead a prison takeover, or brutally assaulting a correctional officer or inmate, and (b) preventing inmates from escaping who have attempted or succeeded at escape in the past. Before creating goals pertaining to controlling gang influence and presence, each prison system should carefully analyze the extent and organizational structure and activities of prison gangs. As noted earlier in the chapter, supermax confinement may be ineffective at preventing or disrupting gang ties and behavior.
It is important to also recognize the limitations of performance measures for a single intervention like a supermax prison. Performance measures can be affected by a wide variety of institutional, managerial, and social forces, and separating the individual contributions of these factors is a complex task. The difficulty in evaluating a supermax from an academic standpoint is that it is virtually impossible, if not highly unethical, to place equivalent offender groups randomly into a supermax unit or another maximum-security, but less restrictive setting. Evaluations of how effectively a supermax pursues its goals are likely to compare inmate conduct among offenders who pose different levels of risk to the public and prison system.
The Back Story
Despite its ban by several states, a successful challenge to capital punishment’s constitutionality did not occur until the 1960s. Led by the American Civil Liberties Union (ACLU) and, especially, the NAACP Legal Defense and Educational Fund (LDF), neither of which was a death penalty abolitionist organization, the challenge to capital punishment has been referred to as the “final act of the [black] Civil Rights movement” (Bedau, 2009, p. 617; Haines, 1996, p. 43). LDF lawyers turned their attention to the death penalty in the 1960s primarily because of the racially discriminatory way it was being administered. A series of cases (and defeats for the LDF lawyers) set the stage for what would turn out to be the landmark case of Furman v. Georgia, decided by the U.S. Supreme Court (the “Court”) on January 29, 1972.
Furman’s lawyers argued to the Supreme Court that unfettered jury discretion in imposing death for murder resulted in arbitrary or capricious sentencing in violation of their client’s Fourteenth Amendment right to due process and his Eighth Amendment right not to be subjected to cruel and unusual punishment. In a 5 to 4 decision, the Court ruled in favor of Furman and set aside death sentences for the first time in its history. It is important to note that the Court did not declare the death penalty itself unconstitutional; it held as unconstitutional only the statutes under which the death penalty was then being administered.
The backlash against the Furman decision was immediate and widespread. Many people, including those who had never given the death penalty issue much thought, were incensed at what they perceived as the Supreme Court’s arrogance in ignoring the will of the majority and its elected representatives. They clamored to have the penalty restored. Obliging their constituents, the elected representatives of 35 states proceeded to adopt new death penalty statutes designed to meet the Court’s objections (Lain, 2007). The new death penalty laws took two forms. Twenty-two states removed all discretion from the process by mandating capital punishment on conviction for certain crimes (“mandatory” death penalty statutes). Other states provided specific guidelines that judges and juries were to use in deciding if death wasthe appropriate sentence in a particular case, known as”guided discretion” death penalty statutes (Bowers & Steiner, 1999).
The constitutionality of the new death penalty statutes was quickly challenged, and on July 2, 1976, the Supreme Court announced its rulings in five test cases. In Woodson v. North Carolina and Roberts v. Louisiana the Court rejected, by a vote of 5 to 4, mandatory statutes that automatically imposed deathsentences for defined capital crimes. Justice Potter Stewart explained why the Court rejected the mandatory statutes. According to Stewart, to impose the same penalty on all convicted murderers, even though all defendants are different, is just as capricious as imposing a penalty randomly (Woodward & Armstrong, 1979). To alleviate this problem, some sentencing guidelines were necessary. Thus, in Gregg v. Georgia, Jurek v. Texas, and Proffitt v. Florida (hereafter referred to as the Gregg decision), the Court, by a voteof 7 to 2, approved guided discretion statutes that set standards for juries and judges to use when deciding whether to impose the death penalty. With the Gregg decision, executions in the United States resumed the following year with the execution of Gary Gilmore by firing squad in Utah. Gilmore’s execution was the first execution in the United States in a decade. In those jurisdictions that administer it, guided discretion statutes govern the death penalty today.
The Current State of the Policy
In Gregg, the Court’s majority concluded that the guided discretion statutes struck a reasonable balance between giving the jury some direction and allowing it to consider the defendant’s background and character and the circumstances of the crime. In doing so, they respected the defendant’s basic human dignity, as required by the Eighth Amendment, and, as an added bonus, prevented jury nullification (Acker, 1996). Jury nullification refers to a jury’s knowing and deliberate refusal to apply the law, because in this case, a mandatory death sentence was considered contrary to the jury’s sense of justice, morality, or fairness (Garner, 2000). In most death penalty states, guided discretion statutes list aggravating factors and, at least in some of those states, mitigating factors. Aggravating factors are facts or situations that increase the blameworthiness for a criminal act (for example, creating a great risk of death to many persons, or committing a capital felony that is especially heinous, atrocious, or cruel). Mitigating factors are facts or situations that do not justify or excuse a criminal act, but reduce the degree of blameworthiness and thus may reduce the punishment (for example, having no significant history of prior criminal activity, or being under a certain age at the time of the crime). Whether listed in the statute or not, the Court has ruled that judges and juries must consider any mitigating factors proffered by the defense, as long as they are supported by evidence. Generally, aggravating factors are weighed against mitigating factors. If aggravating factors out-weigh mitigating factors, then the appropriate sentence is death. On the other hand, if mitigating factors outweigh aggravating factors, then the appropriate sentence in most death penalty states is life imprisonment without opportunity of parole (LWOP).
The Court also approved three other major procedural reforms in Gregg decision: bifurcated trials; automatic appellate review of convictions and sentences, usually by a state’s highest appellatecourt; and proportionality review. A bifurcated trial is a two-stage trial—unlike the one-stage trial in other felony cases—consisting of a guilt phase and a separate penalty phase (the presentation of aggravating and mitigating factors occurs during the penalty phase). Proportionality review is a process whereby state appellate courts compare the sentence in the case before it with sentences imposed in similar cases in the state. Its purpose is to identify sentencing disparities and aid in their elimination. Although the Court considers them desirable, neither automatic appellate review nor proportionality review is constitutionally required. In addition to automatic appellate review, defendants sentenced to death also have a dual system of collateral review, that is, they may challenge their convictions and/or sentences through both state postconviction proceedings and federal habeas corpus petitions. The procedures that govern capital punishment today are referred to as “super due process” (Radin, 1980).
What Research has Taught Us
The Court’s majority believed that the new procedural safeguards approved in Gregg would rid the death penalty of the problems cited in Furman. This leap of faith on the Court’s part was not based on any evidence, because there was none. No jurisdiction in the United States had ever used all of the elements of super due process. However, now, more than 35 years later, it is possible to determine whether the Court’s faith in the new death penalty process was justified. The evidence shows that super due process has not met the Court’s expectations, especially at the trialcourt level. As a result of the review process, a large number of convictions and/or sentences in death penalty cases have been reversed—a reversal rate many times higher than in noncapital cases. The errors discovered, moreover, are not insignificant legal technicalities, but are the result of violations of fundamental constitutional protections (e.g., ineffective assistance of counsel, prosecutor misconduct, unconstitutional jury instructions, and judge/jury bias). From 1976 through May 2012, 140 inmates in 26 states have been released from death row because of evidence of their innocence (Death Penalty Information Center, 2012a). Not known is the number of death row inmates still awaiting their executions despite their innocence or the number of innocent inmates who already were executed.
Regardless, innocence was not the reason the Court invalidated death penalty statutes in Furman. Nor, for that matter, were the issues of cost or general deterrence. The reason for the Court’s landmark decision was that unfettered jury discretion resulted in an arbitrary and discriminatory application of the penalty. In Gregg, as noted, the Court was optimistic that super due process would significantly reduce or eliminate the problem. Below, evidence of arbitrary application of the death penalty under super due process is examined, followed by recent evidence on cost and general deterrence. Although the latter two issues were not the focus of the Furman Court, they currently are important to both sides of the death penalty debate. The issue of discriminatory application of the death penalty is examined in the next major section on race, gender, and class implications of the policy.
Arbitrary Application
To apply the death penalty arbitrarily or capriciously is to administer it randomly. Capital punishment in the United States today is a lottery where an unlucky few death-eligible offenders are executed, while the vast majority of death-eligible offenders are not. Only about 1% of all death–eligible offenders were executed under super due process, and there is no meaningful way to distinguish between the eligible offenders who have been executed and those who have not (see Dieter, 2011). One might assume that the few death-eligible offenders who have been executed represent the “worst of the worst,” but the “worst of the worst” sometimes escape execution, while murderers who clearly are not among the “worst of the worst” do not. An example of the first category is serial killer Gary Ridgway, the so-called “Green River Killer,” who, in 2003, admitted to killing 48 women during a span of two decades. Ridgeway was not sentenced to death, but to consecutive LWOP sentences for each murder.
Arbitrariness is also evident in the way the death penalty is applied across jurisdictions and overtime. Thirty-five separate jurisdictions in the United States have capital punishment statutes (33 states, the federal government, and the U.S. military), while 18 jurisdictions do not (17 states and the District of Columbia). So, whether a killer (only murderers have been executed post-Gregg) receives the death penalty depends on the jurisdiction where the death-eligible murder was committed. A murderer who kills his victim in Missouri may be sentenced to death, while a murderer who kills his victim in Illinois—perhaps less than a mile away from the Missouri killing—could not be sentenced to death today, but could have been sentenced to death before 2011—the year Illinois abolished its death penalty. Some people may argue that the preceding example is not evidence of arbitrary application, but, instead, is a function of the United States’ federal system of government. Perhaps. But, the federal system of government cannot explain county-level variation within death penalty states.
A recent study found that only 15 of 3,148 counties in the United States (less than 1%) accounted for 30% of all executions since 1976; nine of those 15 counties were in Texas (Baumgartner, 2012). Another recent study discovered that only 10% of U.S. counties accounted for all death sentences imposed between 2004 and 2009, and only 5% of U.S. counties accounted for all death sentences imposed between 2007 and 2009 (Smith, 2010). The researchers reported that the concentration of death sentences in those counties was not a function of the heinousness of the murders committed, or the incorrigibility of the offenders. Rather, in some counties prosecutors sought the death penalty, and in other counties in the same state they did not, even for the same or more aggravated death-eligible murders.
Data of county-level variation within states indicate that greater numbers of death-eligible homicides do not increase the overall probability of a death sentence, as one might expect. Rather, the data show that the odds of being sentenced to death are either greater in counties with fewer death-eligible homicides, or not related to the number of death-eligible homicides at all. It may be that where capital murders are few, those that are committed receive harsher punishment. Another explanation has to do with the costs of capital punishment. Counties that can afford it may seek the death penalty in all cases that warrant it, while poor counties may have to pick and choose among death-eligible cases, pursuing the death penalty in only some cases, or not at all. Poor counties simply may not be able to afford the death penalty (Dieter, 2005). Regardless of the reason, the result is arbitrary application.
Under super due process, although the actual procedures used to cause death may be relatively inexpensive, the process of getting to that point is quite costly. Capital punishment is so expensive that some states have decided to abolish the death penalty altogether (e.g., New Jersey in 2007 and New Mexico in 2009), while some counties, as noted above, elected not to pursue the death penalty in death-eligible cases.
In 2000, the average cost per execution in the United States (i.e., the entire process) was estimated to range from about $2.5 million to $5 million (see Cook & Slawson, 1993; Dieter, 1992; Liebman, Fagan, & West, 2000; NJADP, 2005; Roman, Chalfin, & Knight, 2009; Spangenberg & Walsh, 1989). Extraordinary cases can cost more. For example, the state of Florida reportedly spent $10 million to execute serial murderer Ted Bundy in 1989 (Muwakkil, 1989), and the federal government spent more than $100 million to execute mass murderer Timothy McVeigh in 2001 (Michel & Herbeck, 2001).
The average cost of a LWOP sentence is much less. For example, California spends approximately $137 million a year on the death penalty, whereas a comparable system that sentences the same inmates to LWOP costs only about $11.5 million per year (Dieter, 2009). The death penalty cost New Jersey taxpayers approximately $11 million a year between 1983 and the end of 2005, even though New Jersey did not execute anyone during that period. That is $253 million “over and above the costs that would have been incurred had the state utilized a sentence of life without parole instead of death” (NJADP, 2005). As noted previously, New Jersey abolished its death penalty in 2007.
The costs of a death sentence will probably always be more expensive than the costs of an LWOP sentence because super due process is required only in capital cases (see Harmelin v. Michigan, 1991). Another consideration is that
death penalty costs are accrued upfront, especially at trial and for the early appeals, while life-in-prison costs are spread out over many decades. A million dollars spent today is a lot more costly to the state than a million dollars that can be paid gradually over 40 years. (Dieter, 2005)
It should also be remembered that whenever a capital trial does not result in a death sentence and execution, the added costs associated with the death penalty process were incurred without any “return” on the state’s investment of resources. In other words, the enormous costs of capital punishment are not a product of the number of executions, but rather the number of people that death penalty jurisdictions attempted to execute (Haines, 1996). Consequently, since 1977, California has executed only 13 people, making the cost of each execution more than $250 million (Dieter, 2009). Between 1978 and 1999, Maryland executed only 5 people at a cost of about $37 million per execution (Dieter, 2009). And, as noted above, between 1983 and the end of 2005, New Jersey spent $253 million on its death penalty, even though it executed no one during that period (NJADP, 2005).
As the evidence shows, capital punishment in the United States is much more expensive than alternative noncapital punishments, including LWOP. Perhaps this added expense could be justified if it could be shown that a capital punishment sentence saves more lives than a noncapital punishment sentence, that is, if capital punishment has a marginal deterrent effect. That possibility is examined next.
General Deterrence
In the context of capital punishment, the broad deterrence question is whether or not executions prevent people other than the person executed from committing capital crimes. Despite decades of research, there is no evidence that capital punishment has a marginal deterrent effect, or that it deters more effectively than an alternative noncapital punishment, such as LWOP.
Until 1975, there were no scientific data showing that capital punishment had a significant (or greater than a chance) effect on homicide or murder rates. Despite more than 40 years of research and dozens of studies, this finding was sustained. In 1975, economics professor Isaac Ehrlich published the first scientific study to report a deterrent effect for capital punishment (Ehrlich, 1975). Ehrlich examined the simultaneous effect of several variables on homicide rates during the years 1933 to 1969. He found that “an additional execution per year over the period in question may have resulted, on average, in seven or eight fewer murders” (Ehrlich, 1975, p. 414).
Ehrlich’s findings drew considerable attention. Most of the attention was critical, and numerous methodological flaws with his research were cited. Dozens of studies were subsequently conducted, and most of them failed to find a deterrent effect for the death penalty. In fact, some of them discovered a counterdeterrent or brutalization effect (that is, executions may cause murders rather than deter them). Recently, a new wave of deterrence studies, many of them conducted by economists like Ehrlich, found a deterrent effect for capital punishment.
In response to these studies, Yang and Lester (2008) conducted a meta-analysis of 104 studies of the deterrent effect of capital punishment published in peer-reviewed journals after 1975. A meta-analysis is the statistical analysis of a large collection of analysis results for the purpose of integrating the findings. Of the 104 deterrence studies, only 95 had adequate data that allowed the researchers to report an effect size. Yang and Lester reported that 60 of the studies found a deterrent effect, while 35 of the studies discovered a counterdeterrent or brutalization effect.
Critical analyses of the newer econometric studies faulted them for some of the same problems that invalidated Ehrlich’s earlier research, plus some new ones. Among the long list of criticisms is that none of the studies determines the marginal effect of executions. Furthermore, the dramatic recent decrease in homicide rates in New York, Texas, and California seems to demonstrate the deterrent superiority of LWOP over executions because in capital cases LWOP sentences are more frequently given than death sentences (Fagan, 2005; also see Berk, 2005).
In 1989, following a comprehensive review of death penalty research by a panel of distinguished scholars, the American Society of Criminology—the largest association of criminologists in the nation— passed a resolution condemning capital punishment and calling for its abolition. Among the reasons for the Society’s position was the absence of “consistent evidence of crime deterrence through execution” (Petersilia, 1990). Also, a 1996 survey of 67 current and past presidents of the top three criminology professional organizations—the American Society of Criminology, the Academy of Criminal Justice Sciences, and the Law and Society Association—found that about “80% of them believe that the death penalty is no greater a deterrent to homicide than long imprisonment” (Radelet & Akers, 1996).
Race, Gender, and Class Implications of the Policy
As noted previously, the Gregg Court believed that super due process would eliminate (or at least dramatically reduce) discriminatory application of the death penalty. It has not. Capital punishment in the United States continues to be plagued by discrimination based on race, gender, and class.
Justice William O. Douglas wrote in his Furman decision, “One searches our chronicles in vain for the execution of any member of the affluent strata of this society” (Furman v. Georgia, 1972, pp. 251–252), and attorney Bryan Stevenson observed that capital punishment really means “them without the capital gets the punishment” (Stevenson, 2004, p. 95). A major reason wealth matters is that the wealthy are able to hire the best attorneys. In many capital cases, the outcome depends more on an attorney’s skill than what actually happened (Dow, 2005).
That the wealthy are practically immune to the death penalty is supported by a recent study of 504 adult defendants indicted for capital murder in Harris County (Houston), Texas, from 1992 to 1999 (Phillips, 2009). Harris County, Texas, is notorious for being the capital punishment capital of the United States. If Harris County were a state, it would rank second only to Texas as the state with the most post-Gregg executions. Harris County also is noteworthy because it does not have a public defender system. Allcriminal defendants are represented by privately retained lawyers or appointed counsel. The study found that all but one of the 504 defendants were poor (based on the median household income of the defendant’s neighborhood, i.e., census block group). The one exception was multimillionaire Robert Angelton, who was accused of hiring his brother to kill his wife. Not surprisingly, Angelton was acquitted of the capital murder at trial.
In another study using the same Harris County data, the victim’s social class or social status was discovered to frequently determine whether the prosecutor sought, and the jury imposed, the death penalty (Phillips, 2010). Prosecutors were more likely to seek the death penalty and juries were more likely to impose the death penalty in cases of high-status victims than in cases of low-status victims. High-status victims were defined as wealthy (based on median household income in victim’s residential neighborhood), integrated (married or widowed), sophisticated (college degree), conventional (White or Hispanic), and respectable (clean criminal record). Low-status victims, on the other hand, were poor, marginal (separated, divorced, or single), unsophisticated (no college degree), unconventional (Black or Asian), and disrespectable (prior criminal record). Thus, not only does the offender’s social status determine death eligibility, but also so does the victim’s social status.
The death penalty is rarely inflicted on women, even though women commit roughly one in ten criminal homicides where the gender of the offender is known (Federal Bureau of Investigation, 2010b). (The percentage of women who commit death-eligible homicides is unknown.) Approximately 20,000 people have been legally executed in the United States since 1608, and about 3% (approximately 569) of those have been women; most of them (nearly 90%) were executed prior to 1866 (Schneider & Smykla, 1991).
It is estimated that under current death penalty laws, if women and men were treated equally and no factor other than offense was considered, then women would receive between 4% and 6% of all death sentences (Rapaport, 1993). Under post–Furman statutes, however, women have received about 2% of all death sentences—2 to 8 death sentences a year—167 total between January 1, 1973, and late 2010 (Streib, 2010). Only 12 women have been executed under super due process as of this writing (Death Penalty Information Center, 2012b). The reason is that from arrest through execution, women are filtered from the process.
Streib (1993) identified two principal sources of this gender discrimination: (a) the conscious or sub–conscious attitudes of key actors in the criminal justice process and (b) death penalty laws, themselves. Streib contends that the aggravating and mitigating circumstances enumerated in death penalty laws bias the application of the death penalty in favor of women. For example, among aggravating factors that generally advantage women over men charged with capital crimes are those that pertain to (a) previous criminal record (women are less likely than men to have one), (b) premeditation (homicides by women tend to be unplanned and sudden acts), and (c) felony–murders (women are rarely involved in them) (Streib, 1993). Mitigating factors that tend to advantage women involve: (a) committing a capital crime while under extreme mental or emotional disturbance (female murderers are perceived to be more emotionally disturbed than male murderers) and (b) acting under the substantial domination of another person (when both women and men are involved in a capital crime, the man is generally considered the principal actor) (Streib, 1993).
As for the key actors in the criminal justice process, judges (who are predominately male) admit that, in general, they tend to be more lenient toward female offenders. They also tend to believe that women are better candidates for rehabilitation than are men. Jurors also tend to be more lenient toward female offenders, particularly in cases of serious crimes (Streib 1993).
Super due process also fails to end racial discrimination in the imposition of the death penalty. According to an “evaluation synthesis” of 28 post–Furman studies prepared by the U.S. General Accounting Office (GAO) and published in 1990,
more than half of the studies found that race of defendant influenced the likelihood of being charged with a capital crime or receiving the death penalty … [and in] more than three-fourths of the studies that identified a race-of-defendant effect … black defendants were more likely to receive the death penalty. (U.S. General Accounting Office, 1990, p. 6)
An update of the GAO study prepared for the American Bar Association (ABA) showed that in nearly half of the death penalty states, race of defendant was a significant predictor of who would receive a death sentence. In all but two of those states (Florida and Tennessee), Black defendants were more likely to receive a death sentence (Baldus & Woodworth, 1997). Likewise, a 1994 study by the Houston Post found that in Harris County, Texas (Houston), Blacks were sentenced to death twice as often as Whites (Bright, 1997a, p. 4). A more recent study of Harris County, Texas, published in 2008 found that death sentences were still more likely to be imposed on Black defendants than on White defendants (Phillips, 2008). Another study examined a sample of death-eligible murderers in Philadelphia, Pennsylvania, between 1983 and 1993 (Baldus, Woodworth, Zuckerman, Weiner, & Broffitt, 1998). African Americans were found to have a nearly four times greater chance of receiving a death sentence than similarly situated defendants, even after controlling for a variety of factors, including severity of offense and background of defendant. Also discovered was that race made the most difference in the “mid–range” of severity or aggravation cases in which prosecutors and jurors exercise the most discretion in seeking and imposing the death penalty.
Available evidence indicates that super due process has not eliminated a second, less obvious form of racial discrimination: victim-based racial discrimination. Whether the death penalty is imposed continues to depend on the race of the victim. Research shows that the killers of Whites, regardless of their race, are much more likely to be sentenced to death than are the killers of non-Whites.
The ABA study discussed previously found evidence of race-of-victim disparities in 93% of death penalty states, and in all but one of those states (Delaware) White–victim cases were more likely to receive death sentences (Baldus & Woodworth, 1997). The GAO evaluation synthesis further revealed that in 82 percent of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty…. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques. (U.S. General Accounting Office, 1990, p. 5)
The report also noted that “the race of victim influence was stronger for the earlier stages of the judicial process (e.g., prosecutorial decision to charge defendant with a capital offense, decision to proceed to trial rather than plea bargain) than in later stages” (U.S. General Accounting Office, 1990, p. 5).
More recent data do not indicate any change in the situation. As of January 1, 2010, about 80% of the victims of those persons executed under post–Furman statutes have been White, and only about 13% have been Black. Yet, 56% of defendants executed have been White, while 35% have been black (Criminal Justice Project, 2010). Discrimination seems apparent because, historically, capital crimes were generally intraracial (see Zahn, 1989). For example, in 2009, White offenders murdered 84% of white victims, and Black offenders murdered 91% of Black victims (when race of victim and offender were known) (Federal Bureau of Investigation, 2010a). Still, uncertainty remains about whether the data show discrimination because only about 20% of murders and nonnegligent manslaughters are capital crimes. It seems likely that the percentage of interracial murders may be somewhat greater for capital murders than it is for noncapital murders.
Studies found that the source of racial disparity/discrimination under super due process is located predominately in the discretionary actions of prosecutors and, to a lesser extent, juries. (Evidence suggests that prosecutors and juries are also sources of arbitrariness in the death penalty’s application.) Baldus and his colleagues declare that “the exercise of prosecutorial discretion [in seeking a death sentence] is the principal source of the race-of-victim disparities observed in the system” (Baldus, Woodworth, & Pulaski, 1990, p. 403). In Georgia (and in other states) a capital sentencing hearing is a preliminary stage in the process that leads to a capital trial. Under Georgia’s post–Furman statute, Black defendants whose victims were White were advanced to a capital sentencing hearing by prosecutors at a rate nearly five times that of Black defendants whose victims were Black, and more than three times the rate of White defendants whose victims were Black (Baldus, Pulaski, & Woodworth, 1983). Other research found that prosecutors sought the death penalty in 70% of cases involving Black defendants and White victims and in only 35% of the cases involving other racial combinations (Bright, 1997b). A study of Maryland’s death penalty found that, after controlling for relevant case characteristics, the killers of White victims, especially if they were Black, were substantially more likely than the killers of non-whites to be charged by prosecutors with a capital crime and for the charge to “stick,” that is, not be withdrawn by the prosecutor once the death notification was filed (Paternoster & Brame, 2003).
In Florida, prosecutors have “upgraded” and “downgraded” potential capital cases under super due process by alleging aggravating circumstances, charging defendants with an accompanying felony, ignoring evidence in police reports, and withholding an accompanying charge depending on the race of the offender and of the victim (Bowers, 1984; Radelet, 1981; Radelet & Pierce, 1985). Radelet and Pierce (1985) report that “cases in which blacks were accused of killing whites were the most likely to be upgraded and least likely to be downgraded” (p. 6). Prosecutors also have reduced death-eligible cases with White defendant or Black victim to noncapital ones through plea bargaining, or they have foregone a penalty trial and thus waived the death penalty, even when a defendant was convicted by a jury of a capital offense (Baldus et al., 1990). Prosecutors engaged in similar actions in other states (Baldus et al., 1990; Gross & Mauro, 1989; Sorensen & Wallace, 1999).
How do We Fix It? Suggestions for Reform
After more than 35 years of the Court’s “tinkering with the machinery of death,” to use former Justice Harry Blackmun’s evocative phrase (Callins v. Collins, 1994), it may be impossible to fix capital punishment in the United States, if “fixing” it means substantially reducing the problems of arbitrary and discriminatory application, and especially the problems of wrongful convictions and executions. Thus, the only way to fix the problems with capital punishment is to abolish it. However, short of total abolition there are numerous reforms that proponents of the penalty hope will make the capital punishment process less egregious. The problem with reform is that capital punishment, like any other sanction, invariably is imposed arbitrarily and too often in a discriminatory way. In addition, errors and mistakes are made by all of its participants and continue to plague the entire capital punishment process. To err is human. The problems are individual and structural, intentional and accidental. After 35 years of trying, further reform efforts are probably a fool’s errand.
Good Defense Attorneys Can Make a Difference1
1 Space limitations preclude a detailed discussion of possible reforms; the interested reader should consult the following sources: Scheck, Neufeld, and Dwyer, 2001; State of Illinois, 2002; and The Constitution Project, 2005. Unless indicated otherwise, the information presented below is from these sources.
The quality of legal representation is arguably the most critical problem with the current capital punishment process. Unfortunately, most capital defendants are indigent and are not represented by privately retained defense counsel skilled in the complexities of capital jurisprudence, but instead are represented by court-appointed lawyers or public defenders who are inexperienced, overworked, understaffed, unprepared, less resourceful, less independent, poorly compensated, and, in some cases, have been reprimanded, disciplined, or subsequently disbarred (Bedau, 1982; Bowers, 1984; Coyle, Strasser, & Lavelle, 1990; Dow, 2002, 2005; Mello & Perkins, 1998).
In 2003, the American Bar Association’s House of Delegates approved a revised edition of its 1989 guidelines for the appointment and performance of defense counsel in death penalty cases. The revised edition was created because of deficiencies in the older guidelines. However, as of May 2012, only three death penalty states—Kansas, Kentucky, and Oregon—explicitly follow the ABA guidelines (National Center for State Courts, 2012). The reason is twofold. First, according to critics of the guidelines, they are too expensive to implement (Post, 2004). Second, the Supreme Court has not required them. In fact, in Strickland v. Washington (1984), the case that provided a test for determining when counsel is ineffective, the Court adamantly refused to adopt performance guidelines for evaluating counsel in capital cases (Williams, 2005). It gave three reasons for its position. First, the Court pointed out the purpose of the effective assistance guarantee was “not to improve the quality of legal representation” (Strickland v. Washington, 1984, p. 699). Second, the Court opined that “no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant” (pp. 708–709). Third, the Court was concerned that the adoption of specific standards would encourage ineffectiveness claims, which would discourage many attorneys from representing defendants in capital cases.
As of May 23, 2012, only three death penalty states adopted the 2003 ABA guidelines; however, 28 of the 33 death penalty states adopted their own minimum guidelines or standards for the appointment of counsel at either the trial or appellate level, or both in capital cases (National Center for State Courts, 2012). The only death penalty states that have not yet adopted any minimum guidelines or standards are Delaware, Mississippi, New Hampshire, Ohio, South Dakota, and Wyoming. Clearly, these standards are better than no standards at all, but none of them can be considered particularly rigorous; they are truly minimum standards.
In addition, defense counsel in capital cases (including those in states with guidelines or standards) rarely has the resources necessary to mount an effective defense. It is not unusual for attorneys in capital cases to be compensated at less than minimum wage, and states have been known to appoint attorneys in capital cases who submitted the lowest bids (Bright, 1997b).
Punish the Misconduct of Defense Attorneys
Most acts of misconduct by defense attorneys in capital cases should result in the attorney being disciplined by the state bar association. Where applicable, such disciplined attorneys should be removed from the roster of attorneys eligible to handle death penalty cases. For egregious cases of misconduct, defense attorneys should be disbarred.
Improve Police Investigations, Interrogations, and the Handling of Evidence
Police should keep an open and objective mind during investigations. They should investigate crimes rather than trying to build a case against a likely suspect. Once a suspect has been identified, the police should continue to pursue all reasonable leads, whether they point toward or away from the suspect.
To reduce the number of false confessions, defense counsel should be provided to indigent suspects during police interrogation in potential death penalty cases. When there is doubt about whether the suspect is indigent, defense counsel should be provided. Police should also make a reasonable attempt to determine if a suspect is mentally retarded. If the suspect is deemed mentally retarded, the police should not ask leading questions (mentally retarded suspects are inclined to agree with the police version of events) and/or suggest that they believe the suspect is guilty.
In potential death penalty cases, the entire police custodial interrogation should be videorecorded to help validate the interrogation and confessions. Where videorecording is not feasible, audiorecording should be substituted. Interviews with significant witnesses in homicide cases should also be electronically recorded.
To make certain that the police provide all the evidence in their possession to the prosecution (a) all relevant evidence, including exculpatory evidence and its location, should be listed on schedules by the police, (b) specific police officers or employees should be assigned recordkeeping responsibility, and (c) prosecutors should be given certified written copies of the evidence schedules by the police.
Improve Eyewitness Identification Techniques and Procedures
Experts agree that the accuracy of eyewitness identifications could be greatly improved if several policy reforms were adopted in all jurisdictions, including the videotaping of all lineups, photo spreads, and other identification processes so that later any biases, suggestions, or hints that infected the process could be exposed and evaluated. In addition, convictions for murder based on the testimony of a single eyewitness or accomplice, without any other corroboration, should never be eligible for the death penalty.
Punish Police Misconduct
Depending on the seriousness of the misconduct, offending police officers should be reprimanded, suspended without pay, decertified (if applicable), or terminated. Particularly serious misconduct by police officers should be prosecuted in the federal courts.
Improve the Work and Credibility of Crime Lab Technicians
To promote greater credibility in the work of crime lab technicians, such labs and their budgets should be independent and not under the supervision of a police department or prosecutor’s office, as is typically the case. Crime labs should also be accredited by professional organizations and subject to regulatory oversight and external blind proficiency testing (in which samples are sent in as ordinary evidence to corroborate the validity of results). Agent technicians who make mistakes should be disciplined.
Require DNA Testing
DNA testing should be required in cases in which DNA evidence is available and there is a reasonable probability that the DNA results could exonerate the defendant
Set Rigorous Standards for Jailhouse Snitches/Informants
Before allowing a jailhouse snitch/informant to testify, a committee of prosecutors should be able to provide satisfactory answers to the following questions: (a) Is there corroborating evidence to support their statement, other than the testimony of another snitch? (b) Does the statement provide details of the crime, or lead to evidence that could only be known by the perpetrator? (c) Could the incriminating evidence have been obtained from a source other than the accused, such as press accounts or legal proceedings? (d) Does the snitch/informant have a reputation for being dishonest? And (e) Does the snitch/ informant regularly provide incriminating evidence? There should be a presumption that the testimony of a jailhouse snitch/informant is unreliable, and the prosecutor should be required to overcome that presumption before a jury is allowed to hear the evidence. Any deal that police officers or prosecutors make with a snitch/informant should be recorded, preferably videotaped. Finally, the uncorroborated testimony of a jailhouse snitch/informant witness about the confession or admission of the defendant should never be the sole basis for imposition of a death penalty.
Guide Prosecutors’ Decisions to Seek the Death Penalty
Statewide written protocols should be developed to guide county prosecutors in making death penalty determinations. The guidelines should include the requirement that each county prosecutor establish within his or her office a committee to review homicide cases where the death penalty may be sought in order to assist the prosecutor in making the decision. Prior to trial, the governor should appoint a state-wide committee to review death eligibility decisions made by prosecutors. When the committee decides that death is not the appropriate sentence in the case, the prosecutor should not be authorized to overrule and to seek the death penalty. Committee authorization of the death penalty should become mandatory and required by statute.
Improve Disclosure Requirements
The prosecutor should be required to file a certificate with the court at least 14 days before the date set for the trial guaranteeing that all material that is required to be disclosed to the defense has been disclosed. Following conviction, the prosecutor should have a continuing obligation to make timely disclosure to the defendant’s counsel, or the defendant if not represented by counsel, of the existence of evidence known to the prosecutor that tends to negate the guilt of the defendant or mitigate the defendant’s capital sentence.
Punish Prosecutor Misconduct
For extreme misconduct, prosecutors should be criminally prosecuted. At the least, statutes should be narrowed that grant prosecutors broad immunity from civil suits in cases of intentional misconduct. For egregious cases of misconduct, prosecutors should be disbarred.
Better Training and Certification of Trial Judges in Capital Cases
Capital case training should be provided for all trial judges who preside over capital cases. The training should be required before a judge hears a capital case. A statewide bench manual covering capital cases should also be developed and used. Trial judges should be certified to hear capital cases by the state supreme court or the chief judges of judicial circuits. Certification should be based on experience and training. Only certified judges should hear capital cases.
Give Trial Judges Veto Power
The trial judge should have to indicate on the record whether he or she agrees with the jury’s sentence of death. When the judge does not agree with the jury’s death sentence, the defendant must not be sentenced to death.
Eliminate Time Limits and Other Constraints on Claims of Actual Innocence
Claims of actual innocence in capital cases based on newly discovered evidence should be heard by a court of record any time after conviction, without regard for other post–conviction matters or timing. Also, state “closed discovery” laws should be repealed. Those laws prevent defense attorneys or journalists from reviewing evidence following a conviction, thus making the detection of miscarriages of justice even more difficult.
Improve the Clemency Process
To make officials more accountable in their decision making, clemency boards should hold public hearings to determine their recommendations to the governor. Governors should meet personally with attorneys and should be required to provide the public with an explanation of their clemency decisions. Better yet, to depoliticize the process, clemency decisions should not be made by governors, but, instead by respected three-judge panels.
Short of total abolition, some observers, including some respected individuals who support the death penalty in principle, have called for a moratorium on executions until some of the more egregious problems with its administration are fixed.
Currently, the United States is one of only 57 countries in the world to retain the death penalty; more than 70% of the world’s nations have abolished it in law or in practice (Amnesty International, 2012). As noted previously, 35 jurisdictions in the United States have capital punishment statutes; 18 jurisdictions do not. In 19 of those 35 jurisdictions, fewer than 10 inmates have been executed since 1976. Three of those 19 jurisdictions—Kansas, New Hampshire, and the U.S. military—have not executed anyone since at least 1976. On the other hand, five death penalty jurisdictions have executed nearly two-thirds of the inmates executed since 1976: Texas, Virginia, Oklahoma, Florida, and Missouri. Texas, alone, accounts for 37% of all executions in the United States since 1976. Thus, except for fewer than 30% of the world’s countries, a handful of states in the United States, and a few counties in those states, the death penalty is a dying practice. Clearly, those countries and states without a death penalty (or without imposing the death penalty) are able to administer justice and avoid calamities without capital punishment.
Reentry to the community from prison is a process that poses many challenges both to the ex-offender experiencing the transition and the professionals tasked with managing the process. For the ex-offender it means reengaging with family, friends, work, and treatment while navigating the pitfalls of encountering criminal peers, living in high-risk neighborhoods, and managing impulsive behaviors. For the community corrections officer it means working with the offender to monitor compliance with court-ordered conditions; guiding ex-offenders through legal, economic, emotional, and social challenges; and managing the multiple criminal justice, social services, and public health partnerships necessary to effectively transition ex-offenders into the community. Therefore, community corrections is one of the most important components of the criminal justice system because it has the power tointervene on multiple levels over time to influence positive outcomes for the individual, the community, and the system. Although community corrections is extremely important to the overall success of the criminal justice system, it has not generally garnered the respect that it deserves.
Since the demise of the rehabilitative ideal beginning in the 1970s, community corrections was often criticized for being “soft on crime” and ineffective in keeping the community safe from dangerous offenders released from prison. In recent decades, community corrections experienced somewhat of an identity crisis: trying to adhere to its rehabilitative origins (designed to engage the ex-offender in the reentry process), while attempting to achieve contemporary legitimacy within a crime control era focused on strict monitoring, rule enforcement, and sanctioning noncompliance. This has caused an ideological debate within the profession about whether community corrections should provide rehabilitation or punishment, support or accountability, guidance or coercion, social work or law enforcement. Ironically, this conflict often leaves community corrections vulnerable to being ineffective at both meeting the individual needs of the ex-offender and the safety needs of the community.
In this chapter, we argue that it is time for community corrections to move beyond oversimplistic ideologically defined approaches to supervision, and resolve the rehabilitation or punishment debate by implementing balanced, evidence-based interventions designed to reduce recidivism and improve long-term reintegration. First, we place community corrections and prisoner reentry into a political, economic, and social context as it relates to contemporary circumstances that pose serious challenges to community corrections and successful reentry. Second, we present what is known about effective strategies to reduce recidivism and achieve reintegration at both the individual level of intervention and at the agency level of operation. Finally, we recommend strategies that can be implemented by policy makers as they take responsibility for supporting and intelligently guiding the future of community corrections.
As a brief review of the current political, economic, and social context of community corrections shows, there are serious challenges confronting community corrections due to an ongoing political emphasis on narrowly defined punitive policies, the contemporary fiscal crises, and the existence of distressed communities attempting to absorb ex-offenders. It is within this reality that community corrections exists and must be managed to achieve success.
The Back Story: The Political, Economic, and Social Context of Community Corrections
Until recently, the corrections system of the United States was driven by a philosophy of offender reform and rehabilitation. Community supervision became institutionalized during the Progressive Era (1900–1920) with the establishment of the indeterminate sentence to accommodate individual differences in reform and the early release of “cured” inmates from prisons by parole boards. Ex-prisoners, once reformed in the prison, needed the assistance of parole officers to achieve full reintegration into the community (Pisciotta, 1994). Rehabilitation continued to dominate corrections until the 1970s when major social and political upheaval caused both liberals and conservatives alike to question the integrity and effectiveness of the rehabilitative model as the core philosophy guiding corrections (Cullen & Jonson, 2012).
The political unrest of the 1960s, including several prison riots and increasing crime rates, attracted scrutiny to many criminal justice practices (see Cullen & Jonson, 2012; Garland, 2001). Liberals questioned the power of the state concluding that rehabilitation was never truly implemented and indeterminate sentences allowed for discriminatory practices resulting in longer and harsher punishments for the poor and racial minorities. Conservatives argued that the social unrest and rising crime rates were due to a weakened police force, lenient judges, and permissive parole boards. Many contended, however, that the total demise of rehabilitation was completed with the publication of the Martinson Report (Martinson, 1974).
Martinson (1974) reviewed 231 studies of correctional interventions and reported that one could not reliably conclude what works in correctional rehabilitation because of the broad array of programs and the poor quality of many of the studies. The timing of his report leant strong support for the critics of rehabilitation, and the results were rapidly translated into “nothing works” in correctional rehabilitation. Although the Martinson study was almost immediately rebutted by Palmer (1975) and by Martinson (1979) himself. After reassessing his own data, Martinson determined that programs that were theoretically informed and targeted appropriate populations did indeed work; however, the damage had been done and the momentum opposing rehabilitation was too strong to be altered.
The agreement between liberals and conservatives also ended with the belief that rehabilitation should be abandoned, and their disagreement began with a fury about what should be the guiding philosophy of the criminal justice system, and specifically corrections, into the future (see Cullen & Jonson, 2012). Liberals argued for restricting discretion in order to limit state power and to implement due process protections to rid the system of abuse and discrimination against poor and minority offenders. Conservatives argued to limit the discretion of lenient judges and to get tough on crime through more punitive crime control measures to ensure the rights of victims and to provide for safer communities. In the end, the conservative crime control model, steeped in deterrence and retribution, directed the criminal justice system and each of its institutions. The initiation of the “war on crime,” followed by the “war on drugs,” had a dramatic impact, not only on the criminal justice system and corrections, but also on our communities. The full impact of these philosophical changes from rehabilitation to crime control, retribution, and deterrence and the practical impact of the resulting policies on corrections, offenders, and communities would not become fully understood until much later (Clear, 2007; Cullen & Jonson, 2012; Garland, 2001; Mele & Miller, 2005; Petersilia, 2003; Travis, 2005).
Beginning in the 1970s, the punitive shift in the political environment of the United States led to increases in prison admissions, longer sentences, mandatory minimum sentences, reductions in prison programs, and laws restricting publicly funded social support for convicted felons (Garland, 2001; Mele & Miller, 2005; Petersilia, 2003). Cumulatively, these policies led to a dramatic increase in our prison and jail populations with approximately 2.5 million people incarcerated and as a result, approximately 740,000 inmates released from prison each year. Combined with those persons who are already under supervision, approximately 5 million people are under some form of state control while living in the community (The Pew Center on the States, 2009). This increase in the corrections population created a significant burden for state and county governments, the prison system, community corrections, and the communities affected by the return of the offenders.
The economic burden caused by the institutional expansion of corrections caused severe limits on state and local governments’ ability to invest in cost effective and successful prevention programs, public health, education, and other social services that are related to easing the pains of poverty and other conditions highly correlated with crime. For instance, many states during the 1980s and 1990s responded to increasing prison populations by attempting to build their way out of the crisis by spending an estimated $47 billion on prison construction nationally, then followed by billions spent annually to operate existing prisons (SCJS, Sourcebook of Criminal Justice Statistics, 2006; The Pew Center on the States, 2009). Interestingly, the recent recession has forced many states to cut education, public health, and social service budgets in order to sustain corrections expenditures (Grattet, Petersilia, Lin, & Beckman, 2009; Hughes, 2006; Petersilia, 2003).1
1 For instance, spending on corrections increased 1,173% from 1997 to 2003 compared to 505% for education, 572% for hospitals and health care, 577% for interest on debt, and 766% for public welfare (Hughes, 2006, p. 4).
In spite of the fact that most of the corrections population resides within community corrections, in many jurisdictions there are competing needs and political pressure to favor prisons over community corrections (Lehman & Labecki, 1998). Therefore, since the late 1970s community corrections spending stagnated (Petersilia, 2002). The disproportionate spending on prisons is evident with only 32% of the correctional population incarcerated, yet that same population consumes 88% of correctional costs (The Pew Center on the States, 2009). Within prison spending, most of the resources are directed toward labor costs, maintaining the physical plant, and goods and services with many state and federal corrections systems cutting education and vocational programs, substance abuse and mental health counseling, and life skills courses designed to engage inmates in prosocial activities and reduce recidivism (Petersilia, 2003). Even though prisons have become more expensive, inmates today are much less likely than those in the past to participate in programs to alleviate the personal and situational conditions that originally brought them to prison.
The Current State of Prison Reentry
Many of the life situations of those released from prison are stark, and the individual challenges they confront in order to become successfully reintegrated are many. The average parolee is male (93%), under the age of 34 (50%), undereducated and oftentimes functionally illiterate (33% < high school diploma), and a racial or ethnic minority (38% Black, 20% Hispanic) (Clear, 2007; Petersilia, 2003; Sabol, West, & Cooper, 2009, pp. 2, 36; Government Accounting Office, 2000). Parolees are also more likely than the general population to suffer from poor mental health, physical health, substance abuse, co-occurring disorders, infectious diseases, learning disabilities, homelessness, and violent victimization (Deadman & MacDonald, 2004; Falshaw, 2005; Petersilia, 2003; Roman & Travis, 2006).
The quality of the prison experiences also affects reentry. Recent research shows that victimization in prison is common with 22% of maximum security federal inmates, 35% of male state inmates, and 24% of female state inmates reporting physical victimization by either staff or other inmates (Listwan, Colvin, Hanley, & Flannery, 2010). Research shows that the harsher the prison environment the more difficult it is to cope with the transition to the community and living in unsafe neighborhoods often results in a persistent and heightened awareness to avoid victimization and a sense of isolation, fear, distrust, learned helplessness, and the perception that one is alone to deal with psychological distress (see Lutze & Kigerl, 2013).
The communities that offenders are most often released to are stressed neighborhoods. Poor communities often have fewer resources available from private sector businesses resulting in few if any places to purchase basic goods, such as food, clothing, or other life staples (Clear, 2007; Rank, 2004). Public institutions, although present, are also limited and represented by failing public schools, overcrowded medical clinics with little to offer in preventative care, and social service agencies that are often perceived by residents as controlling versus empowering (Jones, 2010; Raphael, 2000). The cumulative effect of limited private services and underresourced and overburdened public sector services results in greater distances to travel for jobs, fewer businesses to purchase goods and services, less education, poorer health, and higher odds of early death (Rank, 2004).
Yet, it is within this political, economic, and social context that ex-offenders and community corrections professionals are expected to succeed. Community corrections is given the responsibility of successfully managing ex-offenders at the end of a cross-systems journey (i.e., public education, public health, social services, and criminal justice) made by offenders that has not prepared them, either before or during prison, for reentry into a community context that is diminished in its capacity to support successful reentry. We argue, however, that even within these very challenging circumstances, we know how to bring about effective change that will enhance successful reintegration, reduce recidivism, and bring the role of community corrections within reasonable expectations for achieving success. Understanding the conditions and experiences of those involved in reentry leads to a clearer understanding of why some correctional programs work to reduce recidivism and why so many fail.
Race, Gender, and Class Implications of the Policy
It is also clear that poor and minority Americans, especially African Americans and Latinos, painfully experience more than others the effects of punitive crime control policies (Unnever & Cullen, 2010; Lutze, 2006; Reiman, 2004). This is evident in that 1 in 45 Whites, 1 in 27 Hispanics, and 1 in 11 Blacks are under some form of state control (The Pew Center on the States, 2009). When race, sex, and social economic class are combined, the statistics are alarming, with young, poor, Black males being incarcerated far more than any other group (The Pew Center on the States, 2009; Travis, Solomon, & Waul, 2001). In poor, urban neighborhoods it is not unusual for 1 in 3 young Black men to be under some form of state control. Black men in general have a 29% lifetime chance of serving at least one year in prison, compared to 16% of Hispanic males (any race), and 5% of White males (Travis, Solomon, & Waul, 2001, p. 12). Poor and minority women have not escaped harsh crime control policies either. As a result of harsh drug laws and mandatory minimums, the number of women in prison has dramatically increased since 1990, especially for young Black women (Sabol, West, & Cooper, 2009; SCJS, 2008). The effects are dire when recognition is given to the fact that these women are also much more likely to have custody of their minor children than are males.
It can also be argued that the economic burden caused by prison expansion has a disproportionate effect on poor communities that the rest of society does not directly experience (Clear, 2007). Due to the fact that poverty is not randomly distributed in the United States, but is often concentrated in urban minority communities, the cost of incarceration does not affect everyone equally (Clear, 2007; Petersilia, 2003; Rank, 2004). Given that most offenders processed by the criminal justice system are poor, and public money has shifted away from education, health, and social services to support our prison system instead, poor communities experience both the disproportionate loss of citizens (primarily young males) due to incarceration and the loss of valuable public services due to the costs of prisons. These sentencing and monetary policies remove productive young males from the general population and away from supporting their families, through both legal and illegal means, while at the same time diminishing public support networks that would traditionally help to fill in the gap. Due to the effects of incarceration, these young men often remain out of productive labor long after release from prison.
The removal of so many young men and increasing numbers of women from communities where incarceration is concentrated creates conditions that are not easily addressed by community corrections, even when possible. There is also a strongly held myth by many politicians and their constituents that the majority of offenders, especially those living in poor communities, can easily or successfully overcome the challenges confronting them on reentry, if only they worked harder (conservative perspective) or greater opportunities were provided to them (liberal perspective) (Rank, 2004). There is a failure by both political camps to understand how the structural inequality that leads to concentrated poverty and incarceration also sabotages an individual’s ability to work harder or to take advantage of opportunities, if they should exist. Ongoing structural inequality during both good and bad times creates a climate where state institutions, including social services, police, and corrections, are perceived as intrusive, controlling, and not to be trusted (Clear, 2007; Jones, 2010; Mele & Miller, 2005; Petersilia, 2003; Rank, 2004; Raphael, 2000). Therefore, a willingness for citizens to work with the very agencies and professionals designated to support reentry efforts, whether community corrections or social services, is diminished.
What Research has Taught Us: Evidence-Based Practices and Reentry
The multiple problems confronted by those individuals who are released from prison clearly demonstrate that punitive measures alone will not result in long-term change. Ex-offenders need assistance in dealing with educational and skill deficits, mental health problems, substance abuse, housing, employment, and reintegration with family. They also must change their antisocial attitudes and behaviors that increase their risk to recidivate and threaten community safety. Many new approaches to reentry have emerged based on a greater understanding of the conditions that contribute to reentry failure and an onslaught of methodologically strong research showing that correctional programs work to reduce recidivism. Recent reentry initiatives focus on coordinating services across systems, utilizing evidence-based programs, increasing contact with offenders, providing structure, and holding offenders accountable for their behavior.
What Works to Enhance Success in Community Corrections
Research clearly shows that correctional programs are effective in decreasing recidivism when they are theoretically informed, targeted toward high-risk and high-need offenders, and implemented with structural integrity according to the model’s intended design (Andrews & Bonta, 2010; Cullen & Jonson, 2012; MacKenzie, 2006). Evidence-based practice refers to the implementation of programs proven to increase intended outcomes as a result of rigorous scientific evaluation. The most relevant findings related to evidence-based practices in correctional interventions are (a) the development of reliable and valid risk assessment tools, (b) the risk, need, and responsivity (RNR) model of correctional interventions, (c) cognitive-behavioral treatment programs (CBT), (d) singular interventions that focus on offender needs, (e) the integration of cultural competency into interventions, and (f) planned and coordinated responses to reentry.
Risk Assessment Tools
An important development related to correctional treatment in the last 30 years is the improvement of risk and need assessments (Andrews & Bonta, 2010). Risk assessments are important because they allow for the classification of offenders into low, moderate, and high-risk groups that guide correction’s personnel to determine what level of control and treatment are necessary to have the greatest effect on outcomes. Risk assessment tools allow corrections to move beyond anecdotal and clinical perceptions about what appears to work toward the ability to more accurately specify who is at greatest risk of failure and to target those in the greatest need of services (Andrews & Bonta, 2010).
Risk, Need, and Responsivity
Programs that target offender risks, needs, and responsivity (RNR) have repeatedly been shown to reduce recidivism among high-risk offenders. Risks, as articulated by Andrews and Bonta (2010, p. 20), are “characteristics of people and their circumstances that are associated with an increased chance of criminal activity.” They identify criminogenic needs as those risk factors that are “dynamic,” meaning they are risk factors that can be changed through interventions (Andrews & Bonta, 2010, p. 21). In general, responsivity is an approach that considers the “ability and learning style of the offender” in an effort to empower him or her in the rehabilitation process (Andrews & Bonta, 2010, p. 49).
Andrews and Bonta (2010) developed the RNR model based on evaluations of the factors statistically related to increased criminal conduct. They determined that there are four key attributes common to the majority of offenders: antisocial attitudes, antisocial peers, antisocial personality, and having a criminal history. They also propose that familial or marital circumstances, educational or vocational attainment or involvement, gratification in leisure or recreational activities, and substance abuse problems are scientifically relevant to criminal conduct. They argue that programs that do not target these risk and criminogenic needs fail to change behavior and impact recidivism. Several large studies showed that interventions that are implemented based on the RNR model are effective in reducing recidivism up to 30%, while those that fail to include the principles of RNR resulted in no effect or may even have an iatrogenic effect by increasing recidivism (see Andrews & Bonta, 2010; Cullen & Jonson, 2012; Lowenkamp, Latessa, & Holsinger, 2006; Lowenkamp, Latessa, & Smith, 2006).
Cognitive-Behavioral Treatment
Another type of intervention proven to be effective founded on rigorous scientific evaluations is cognitive-behavioral treatments (CBT). CBT is a learning-oriented approach that demands that the client engage in the here-and-now in an effort to address problematic thinking and behavioral patterns. Although CBT is sometimes thought of as a single approach, it actually represents a wide range of therapeutic methods (Gideon & Sung, 2011). Therefore, CBT interventions can be adapted to the targeted cognitive processes and behaviors that need to be changed, such as antisocial attitudes, substance abuse, anger, and other behaviors highly correlated with criminal behavior.
Several meta-analyses show that CBT interventions effectively reduce recidivism when used with offender populations (Andrews & Bonta, 2010; Landenberger & Lipsey, 2005; Lowenkamp, Hubbard, Makarios, & Latessa, 2012; MacKenzie, 2000; Wilson, Bouffard, & MacKenzie, 2005). For example, Wilson et al., (2005) found moral recognition therapy resulted in a 33% reduction in recidivism while cognitive restructuring or reasoning approaches resulted in a 16% reduction. Landenberger and Lipsey (2005) found that increased dosages of CBT, as measured by the total number of sessions/ hours per week, reduced recidivism by 25% and that CBT programs that utilize a higher standard for quality implementation had a greater impact on reducing recidivism. Similarly, Lipsey, Chapman, and Landenberger (2001) found that while overall those offenders who participated in CBT recidivated at approximately one-third the rate of those who did not participate, programs that were classified as “demonstration” programs were more effective in reducing recidivism. As is discussed later, these findings are important because they provide evidence that implementers of proven intervention models must not alter the core principles of the program, or the strength of the outcomes are diminished.
Singular Interventions Focused on Offender Needs
Individual interventions directed toward education, housing, mental health, substance abuse treatment, and employment also are effective strategies to reduce recidivism and aid in the successful reintegration of ex-offenders into the community. Many offenders who are under community supervision live in the same economically depressed and socially disorganized communities that they did before prison (Clear, 2007; Kirk, 2009, 2012; Kubrin & Stewart, 2006). Thus, many need help with basic human necessities, such as a place to live, personal safety, nourishment, and companionship. While these specific needs are not in and of themselves criminogenic, the pressure put on an offender for these essentials can negatively impact their ability to engage in programs necessary to bring about change (see Lutze & Kigerl, 2013). Therefore, the most successful strategies to reentry often focus on changing attitudes and behaviors (RNR and CBT) while at the same time addressing the basic human needs necessary to clear the path toward program engagement and change.
Educational performance and functionality are identified as important to ex-offenders’ ability to be successful. Many offenders have low levels of education and many are functionally illiterate (Petersilia, 2003). This often prevents individuals from fully engaging in treatment or employment. There is sufficient scientific evidence that educational and vocational programs delivered in prison and in the community reduce recidivism and increase employment opportunities. For instance, in a meta-analysis, including educational and vocational programs, Wilson, Gallagher, and MacKenzie (2000) found that basic education programs were associated with lower recidivism rates (41% vs. 50%) compared to those programs that did not offer any educational opportunities. The differences in recidivism were even greater for college-level programs (37% vs. 50%) and vocational training (39% vs. 50%) (Lawrence, Mears, Dubin, & Travis, 2002; Wilson et al., 2000). Similarly, work release and vocational training programs are effective in reducing recidivism and improving work-related skills for ex-offenders (see Seiter & Kadela, 2003).
Substance abuse and drug addiction have also long been connected to poor performance for those being supervised in the community. Drug use violates the conditions of supervision and makes it more difficult to sustain a viable place to live, find employment, and refrain from committing new crimes (Petersilia, 2003). Addiction also diminishes one’s cognitive abilities to make proper decisions or to consume new information relevant to supervision and treatment success (Lutze & van Wormer, 2007). Overall, drug treatment programs significantly reduce recidivism and increase other prosocial behaviors (Taxman & Bouffard, 2000; Butzin, O’Connell, Martin, & Incairdi, 2006). For instance, a meta-analysis conducted by Prendergast, Podus, Chang, and Urada (2002) found that substance abuse treatment significantly reduced both substance use and criminal activity and was most effective for younger offenders (also see MacKenzie, 2006). In addition, Butzin and his colleagues (2006) found that drug treatment within the context of therapeutic communities significantly reduced an offender’s propensity for rearrest and increased their time in the community. Therapeutic communities are also effective in addressing various aspects of community reentry, particularly helping ex-offenders with co-occurring disorders (MacKenzie, 2006; Deitch, Carleton, Koutsenok, & Marsolais, 2002), and creating a group atmosphere for ex-offenders that provides support and accountability (Kennard & Roberts, 1983; Prendergast & Burdon, 2002).
There is strong evidence that housing instability often leads to incarceration and experiences of incarceration often lead to housing instability (Geller & Curtis, 2011; Metraux & Culhane, 2004, 2006). Without a stable and safe place to live, individuals must constantly worry about where to sleep and how to protect themselves. They also have no place from which to search for work, receive benefits, prepare for treatment, keep their belongings, or take care of their basic human needs (Roman & Travis, 2006). Fortunately, a growing body of research shows that providing housing support significantly reduces recidivism for high-risk/need offenders, substance abusing offenders, and those with serious mental illness (Culhane, Metraux, & Hadley, 2002; Lutze, Hamilton, & Rosky, 2012; Miller & Ngugi, 2009; Worcel, Burrus, Finigan, Sanders, & Allen, 2009).
Cultural Competency
Within all of these successful interventions, increasing evidence strongly suggests that programs need to be culturally competent to enhance outcomes across different groups (see Lutze, 2006; Lutze et al., 2012; Lutze & van Wormer, 2007). Many interventions were historically designed to serve adult male populations and then are extrapolated to other groups with the expectation that they will work just as well. It is well known, however, that interventions are often perceived and experienced differently based on race/ethnicity, gender, class, education, age, and other social demographic characteristics.
Yet, the demographic differences in outcomes within successful programs are oftentimes ignored in favor of reporting the overall success of the program. Although it is important to know what programs are most effective in reducing recidivism overall, it is also relevant to know who they do not work for and why so that positive outcomes can be shared by all participants. Based on a review of cultural competency in drug courts, Lutze and van Wormer (2007, p. 234) conclude “Although we must focus on equality in access to services, giving everyone treatment that is based on a male model of addiction is not equality and may lead to disparity in outcomes.” Therefore, cultural competency goes beyond merely building awareness about group differences by requiring an understanding about how life experiences may differ based on demographic characteristics and how these differences may influence perceptions of and engagement in interventions. Poor outcomes may not be because the ex-offender failed to engage in the treatment, but that the treatment failed to engage the ex-offender.
Coordinated Responses to Reentry and a Continuum of Care
The discovery of so many evidence-based practices that are successful in reducing recidivism and increasing community safety led to concerns about how best to deliver what works in a coordinated manner that enhances overall outcomes. Research consistently shows that most ex-offenders fail within the first 90 days of reentry due primarily to technical violations, and an estimated 67% will fail within 3 years (see Hamilton & Campbell, 2013; Petersilia, 2003). Attempting to address the multiple needs of offenders through different service providers and across large bureaucratic systems (criminal justice, social services, public health, education, labor) often results in a fractured response to managing ex-offender’s risks and needs. Not surprisingly, offenders are oftentimes overwhelmed trying to navigate multiple systems to access services and to abide by competing sets of expectations. In addition, actions taken within one system oftentimes inadvertently sabotage the work being provided by those in another system serving the same client (Henderson & Hanley, 2006; Lutze & van Wormer, 2007; Taxman & Bouffard, 2000).
During the 1990s, researchers, practitioners, and policy makers developed reentry initiatives that relied on evidence-based practices coordinated across providers and embedded within a continuum of care (Duwe, 2011; Lattimore, Visher, & Lindquist, 2005; Taxman, Shepardson, & Byrne, 2004; Winterfield, Lattimore, Seffey, Brumbaugh, & Lindquist, 2006). These initiatives were designed to address the high-risk period immediately following release, to bridge the gap between prison and community corrections services, and to coordinate across institutions (criminal justice, social services, and public health) in order to provide wraparound services to address both risk and need. As Taxman and Bouffard (2000, p. 42) state, “By each organization focusing on the overall process and not simply on its own goals and responsibilities, services can be implemented in a manner that maximizes their overall efficiency and effectiveness.” They propose that integrated service models must become “boundaryless organizations” that share goals and develop mutually beneficial practices at key decision points that are common for both criminal justice and treatment agencies (Taxman & Bouffard, 2000, p. 39).
In addition, within corrections, it became clear that in order to impact the time immediately following release into the community, community corrections interventions actually need to begin by preparing inmates for reentry prior to release from prison. Prerelease preparations within the institution need to include meeting with the community corrections officer, arranging treatment with a community provider, extending drug prescriptions for physical and mental health, obtaining state identification and a social security card, arranging for safe housing, and beginning the search for employment or the continuation of benefits (Petersilia, 2003).2 After release, services need to be coordinated within and between agencies in order to immediately stabilize high-risk ex-offenders and address their criminogenic and basic life needs.
2 Traditionally, many departments of corrections released inmates with a small amount of cash ($50-$100) and a bus ticket to their jurisdiction of conviction and an order to report to their community corrections officer within 24 hours of release (Richards & Jones, 2004).
Research shows that coordinated responses to reentry are effective in reducing recidivism. For example, process evaluations of the Serious and Violent Offender Reentry Initiatives (SVORI) show that programs that provide a continuum of care between the prison and the community and provide wraparound services significantly increase the number of services utilized by ex-offenders compared to traditionally supervised parolees (Bouffard & Bergerson, 2006; Lattimore et al., 2005; Winterfield et al., 2006). Outcome evaluations of coordinated approaches to reentry also show promise in that they significantly reduce recidivism and increase many prosocial behaviors, such as gaining employment, reducing drug use, increasing medication compliance, and acquiring stable housing (Bouffard & Bergerson, 2006; Braga, Piehl, & Hureau, 2009; Culhane et al., 2002; Duwe, 2011; Lutze, Hamilton, & Rosky, 2012; Worcel et al., 2009).
Therefore, research provides extensive evidence that correctional rehabilitation programs work to decrease recidivism and increase prosocial behaviors when targeting high-risk/need offenders and when implemented within programs that adhere to the principles of effective treatment. In addition, the process utilized to manage the complex web of services across systems is important to assure that ex-offenders are given the support they need to be successful. In short, evidence-based programs and practices work to reduce recidivism and increase community safety. With this knowledge, it is important that community corrections agencies work to strategically implement what works.
Challenges of Reentry: The Importance of Implementation
When corrections was guided by a rehabilitative ideal, it retained a sense of responsibility for influencing long-term offender change (see Cullen & Jonson, 2012). The shift to the crime control model, however, relieved the corrections system from responsibility for offender change and shifted it solely on the offender and their immediate behavior (Lutze, Johnson, Clear, Latessa, & Slate, 2012). Recent research began to refocus attention on a shared responsibility between the offender and the agencies responsible for managing the process of reintegration. Over time, it became apparent that it is the failure of effective implementation that has seriously handicapped the success of many promising innovations (see Henderson & Hanley, 2006; Pisciotta, 1994; Rothman, 1980). Agencies play an important role in achieving successful offender outcomes if they are structured and administered to incorporate best practices into their daily operations and are held accountable for achieving the agency’s mission and goals. In order to be successful, organizations need to (a) prepare for innovation and its implementation within systems, (b) administer programs to manage success instead of failure, and (c) structure community supervision strategies to achieve individual and system-level goals through dynamic practices inclusive of both support and accountability.
Preparing for Innovation
Innovations in corrections often sweep into vogue promising to change offender behavior and make a significant impact on recidivism through cost effective simple solutions (see Finckenauer, 1982). Generally, broad claims of success are made by the original program designers, which in turn inspires the quick implementation of similar programs in other jurisdictions with little, if any evidence showing that the program truly works (see Henderson & Hanley, 2006). Innovative programs that are quickly adopted in new jurisdictions are often altered to meet localized conditions that are generally not prepared to implement the program, yet are expected to produce positive results. In the rush to begin the program, little consideration is given to the many barriers to implementation that need to be resolved prior to beginning the program.
Research shows that challenges to implementation are many and can be detrimental if policy makers do not prepare the various stakeholders to receive the innovation. Implementation barriers often include insufficient staff, inadequate funding, poor intra-agency communication, turf battles, staff turnover, agency regulations or policies, inadequate community services, resistance from line staff or supervisors, and inadequate training regarding the core goals and program design (see Lattimore et al., 2005). Oftentimes, implementation is also hampered by barriers to participant enrollment, such as overly stringent eligibility criteria, transfer policies that disrupt participation, inadequate screening, and cumbersome data management systems (see Lattimore et al., 2005). It is not uncommon for a new program to be funded and implemented and only then to discover that it is practically inoperable because of structural barriers or a lack of eligible participants. Therefore, in order for implementation to be effective and result in positive outcomes, policy makers and project leaders need to analyze and prepare the systems and the execution of new reentry initiatives (Henderson & Hanley, 2006).
Managing Organizational Success
Too often overall failure is accepted without consequence in correctional agencies that have become accustomed to the status quo of high rates of recidivism and technical violations (see Latessa, Cullen, & Gendreau, 2002). However, recent research shows that agencies that hire qualified staff as administrators, implement theoretically informed and evidence-based programs, and that build in quality assurance measures to guarantee program integrity over time can reduce recidivism by up to 30% compared to agencies that lack structural integrity (Lowenkamp, Latessa, & Smith, 2006; also see Andrews & Bonta, 2010; Cullen & Jonson, 2012; Lowenkamp, Latessa, & Holsinger, 2006; Taxman et al., 2004). Nevertheless, it appears that community corrections agencies, and many of the programs they rely on to provide services, struggle to operationalize the structural integrity necessary to promote change. For instance, Lowenkamp, Latessa, and Smith (2006) discovered that a majority of the agencies assessed in their study were categorized as operationally “unsatisfactory” (68%) or were rated as “satisfactory, but needs improvement” (35%). Therefore, there is still room to improve the structural quality of community corrections agencies and their ability to support community corrections officers (CCOs) in their work with ex-offenders.
Community Supervision Practices
Research on community corrections officers (CCOs), also known as probation and parole officers, clearly shows that supervision is a dynamic process, whether applied through a social work or law enforcement perspective, or a fluid combination of both. CCOs and their work are often dichotomized as either social work or law enforcement oriented. A social work orientation emphasizes offender’s needs related to treatment, life skills, and social support resulting in greater collaboration with social services and health care agencies in addition to criminal justice agencies. A law enforcement orientation emphasizes offender risks to recidivate and an emphasis on surveillance, monitoring, and rule enforcement resulting in greater collaboration with police, code enforcement, and jail rather than treatment and social services. This dichotomy unfortunately led to a narrow conceptualization of the important work community corrections officers provide to the criminal justice system as well as the community.
Narrow and static definitions of community supervision stymie or hinder innovation and minimize the importance of the complex role community corrections officers serve in managing offender change (Lutze et al., 2012; Taxman, 2002). In short, ex-offenders possess both risk and need, and depending on the situation, require a multifaceted approach to impact their behavior. Unlike any other actors in the criminal justice or social service systems, CCOs possess the power and substantial knowledge about where offenders are in the process of change to leverage both support and coercion to influence outcomes (Lutze et al., 2012). Working with offenders over time in the community is a powerful and important position.
Singular approaches to supervision, whether purely rehabilitative or punitive, tend to be less effective than those that are fluid and responsive to an offender’s demonstrated risk and need over time. The implementation of intensive supervision programs (ISP) to control high-risk offenders living in the community is most revealing in this regard. The initial research on ISP revealed that increased control of offenders through surveillance, monitoring compliance, and sanctioning does not reduce recidivism and does increase the detection of technical violations resulting in revocations to prison (Latessa, Travis, Fulton, & Stichman, 1998; Petersilia & Turner, 1993; Taxman, 2002). Yet, several studies of ISPs also show that their failure may be due to a lack of balance between treatment and surveillance and not the intensity of the program per se. For instance, Paparozzi and Gendreau (2005, p. 445) discovered an ISP in New Jersey that reduced recidivism from 10% to 30% by providing a supportive organizational environment conducive to treatment and employed parole officers with balanced “law enforcement/social casework orientations” (also see Jalbert, Rhodes, Flygare, & Kane, 2010). Similarly, Wodahl, Garland, Culhane, and McCarty (2011), in a study of an ISP that implemented both rewards for positive behavior and sanctions for negative behavior, discovered that a ratio of four rewards to every one sanction (4:1) increased the probability of ISP completion to 71%. Paparozzi and Gendereau (2005) contend that many ISP programs tend to overemphasize the risk of failure and ignore offender’s strengths that may lead to success. Conversely, they also suggest that programs that overemphasize treatment needs may be too permissive and do not provide adequate boundaries to keep participants in compliance with supervision. Balanced approaches are more likely to be firm, fair, and consistent resulting in greater levels of compliance and program completion.
Studies are also beginning to reveal that the content of interactions between CCOs and ex-offenders are also important to outcomes (Bonta, Rugge et al., 2008; Dowden & Andrews, 2004; Taxman, 2002; Trotter, 2000). Additional time spent on offender’s problems, such as antisocial attitudes, relationships, work, and other issues relevant to the offender’s ability to cope and problem solve, decreased recidivism compared to time spent on compliance requirements, which tends to result in increased recidivism (Bonta, Rugge et al., 2008). To make the most out of CCO contacts with offenders, many corrections programs are implementing programs, such as motivational interviewing, to teach CCOs to respond positively to offenders and encourage their motivation to change (Walters, Vader, Nguyen, Harris, & Eells, 2011). Unfortunately, research shows that most CCOs are prevented from spending much time helping individuals because of large caseloads and truncated meeting times. For instance, the majority of CCOs have two to four contacts with offenders each month that range in length from 10 to 20 minutes each and include record-keeping tasks as well as therapeutic discussions (Bonta, Rugge et al., 2008; DeMichele, 2007; Grattet et al., 2009). With caseloads on average greater than 100, supervision has become an exercise in documentation (i.e., urinalyses results, recording contacts, etc.) versus essential interactions with ex-offenders related to their life and reintegration. Therefore, jurisdictions need to provide the structure and time for CCOs to practice in a manner that provides integrity to the process and produces an honest attempt at achieving success.
Expectations for justice systems, agencies, and community corrections officers must change to reflect the potential to achieve successful outcomes versus accepting failure without consequence. Research shows that success can be managed through preparing justice systems and stakeholders for the implementation of innovation, managing success through organizational design focused on the implementation of evidence-based practices, and utilizing dynamic supervision practices that balance support and control.
How do We Fix It? Policy Recommendations for Reentry and Rehabilitation
We have entered an era of corrections where ignorance is no longer an excuse for sustaining institutional and offender failure. Decades worth of research now presents policy makers, administrators, and community corrections officers with a way forward to attend to offender’s needs while simultaneously controlling for risk and improving community safety (see Andrews & Bonta, 2010; Cullen & Jonson, 2012; Petersilia, 2003). It is time for community corrections to be led by policy makers who are informed and willing to invest in correctional interventions that are most likely to produce successful outcomes.
First, it is important to strive for excellence even in very difficult times. While corrections alone cannot solve the macro-level political, economic, and social problems of poverty and the suffering caused in communities by concentrated incarceration, it can work directly with offenders, their families, and the community to interrupt and reduce the persistent hardship caused by a cycle of crime, prison, and recidivism. Policy makers and corrections professionals must stop placing the sole responsibility for failure on individual offenders while ignoring the influence of structural inequality and system-level failure to invest in what works. This is a disservice to both corrections professionals and the communities they serve and makes the goal of achieving safe communities an empty promise. It is time for corrections professionals to hold politicians and their constituents accountable for funding and implementing policies that support community corrections and the associated institutions that serve the vast majority of the correctional population. It is unacceptable for offenders and victims to be the only ones who suffer the consequences of failure when policy makers and corrections agencies have it within their power to significantly increase success.
Second, policy makers must support interagency collaborations that are coordinated and responsive to both offender risks and needs. The problems confronting inmates on release from prison to the community are greater than any one agency can solve. To manage community safety and achieve long-term reintegration, policy makers must provide the leadership and support necessary to allow corrections professionals to span beyond the criminal justice system and effect change by harnessing the expertise and resources of other public and private institutions, such as health and social services, education, victim advocacy, and community groups. It is unreasonable to place the total burden of reform on corrections when so much of what happens to offenders is beyond their scope of practice and their power to change.
Third, innovation must be introduced to systems that are adequately prepared to implement change. Policy makers must be proactive in discerning what correctional programs are worthy of implementation and act to reduce failure due to structural barriers that undermine the success of programs. Although we know that coordinated responses to reentry enhance success of existing evidence-based programs, if these programs are hastily implemented they are likely to be inefficient, costly, and have diminished impact on intended goals.
Fourth, policy makers must insist on the implementation of evidence-based practices. The scientific evidence is strong that interventions that incorporate the principles of risk, need, and responsivity, utilize cognitive behavioral approaches, and target high-risk/need offenders are effective in reducing recidivism. Supervision approaches that rely on evidence-based programs and incorporate balanced styles work to increase compliance and reduce recidivism. Innovators who wish to move beyond tested, evidence-based practices must create programs that are theoretically informed and adhere to the principles of effective treatment before policy makers or professionals consider the program for implementation. Ignorance or indifference is no longer acceptable given the quality of the evidence that supports rehabilitation and balanced approaches to supervision to produce positive outcomes.
Fifth, cultural competency matters and cannot be ignored by policy makers or corrections professionals. The overrepresentation of poor, minority, and urban men and women in our corrections system can no longer be politely ignored. The debate about whether this overrepresentation is due to disparity or discrimination has paralyzed us from moving forward to bring about change. It is time to move beyond acknowledgement of differences and the passiveness of building awareness to an active understanding about how different group’s life experiences influence their willingness to engage in the process of supervision and treatment. Without an informed understanding, we will continue to blame offenders for not working harder or taking advantage of opportunities when in reality they just do not trust the systems that have failed them in the past to now meet their needs. Simply extrapolating what works for one group to that of another is no longer acceptable. Therefore, policy makers who fund research must insist that evaluators of correctional programs not just determine whether programs work, but who they work for and why so that success can truly be shared equally by all who participate.
Finally, it is time for policy makers to move community corrections out of the shadow of prisons and achieve parity through acknowledging the interdependent relationship that the success or failure within one directly has on the other. Prisons need to be renovated to create positive outcomes that can be enhanced by community corrections to achieve successful reintegration. Community corrections needs to be empowered to allow CCOs to utilize their expertise and actively engage offenders in the process of change. We can no longer afford, in human or financial costs, to allow either institutional or community corrections to be a passive witness to the carnage caused by high-risk offenders when we fail to actively organize our resources and empower corrections experts to implement evidence-based practices. Failing to invest in, structure, and empower corrections for success is negligence that results in direct harm to our communities. Obviously offenders need to take responsibility for the harm they inflict on others, but this alone is not enough. The mounting evidence on the success of rehabilitation programs, coordinated responses to reentry, and balanced approaches to supervision now makes it obvious that policy makers, corrections leaders, CCOs, and community stakeholders must take responsibility as well.
Community corrections is positioned at the end of the criminal justice system prepared to effectively manage offender risk through providing support, treatment, and accountability within supervision. Corrections professionals are accustomed to working with difficult populations in very difficult circumstances. In spite of the many challenges confronting the system and individual professionals, many innovative programs have been implemented and proven to work over the last 30 years. Community corrections is poised to bring about a revolution in corrections that is rife with innovation and prospects for achieving successful outcomes. Policy makers and corrections professionals must possess the determination to make it happen.
Incarceration and Realignment: The Case of California
Over the past three decades, tough on crime sentencing practices resulted in dramatic increases in prison populations nationwide. This trend is exemplified by events in California. In 1980, California’s prisons held a mere 24,569 individuals: 98% of the incarcerated were men, 38.6% were White, 24% were Hispanic/Latino, and 35.4% were African American (Good & Rouse, 1980). Fast-forward to the end of 2010, and the state’s prison population grew to 162,821: 82% of the incarcerated were men and 25.2% were White, 39.8% were Hispanic/Latino, and 28.9% were African American (California Department of Corrections and Rehabilitation (CDCR), 2011a). In an effort to accommodate the rising incarcerated population, the state opened 21 new prison facilities. Today, the 33 state prisons are designed to hold 84,597 inmates (CDCR, n.d.). However, with a current population that almost doubles this capacity, it is fair to say that California is faced with a serious prison overcrowding problem.
Prison overcrowding leads to a number of issues, including many which run the risk of violating the constitutional rights of inmates. Despite their status as an incarcerated individual, inmates retain a number of basic rights under the constitution. However, this was not always the case. Prior to the 1960s, the courts adopted a “hands-off ” doctrine when it came to convicted offenders. The U.S. Supreme Court decision in Cooper v. Pate (1964) led to significant changes in the role of the courts for the incarcerated population. The Cooper decision held that state prisoners have the right to sue in Federal court to address grievances under the Civil Rights Act of 1871. As a result, the gates to the judiciary were thrown open to prisoner claims of constitutional violations under the 1st, 4th, 6th, 8th, and 14th amendments. Since then, several notable cases were decided that relate to the issues of prison conditions. These include Estelle v. Gamble (1976), which held that the deliberate indifference to the medical needs of prisoners is a violation of the cruel and unusual doctrine of the 8th amendment, and Coleman v. Wilson (1990), which held that prisoners must be provided with basic mental health care.
In response to the poor conditions in California’s prisons, inmates filed a class action lawsuit alleging that the state engaged in deliberate indifference in providing quality medical treatment. In 2011, the U.S. Supreme Court decided in favor of the inmates, citing overcrowding as a key factor in the state’s inability to provide basic quality physical and mental health care. In response to the decision by the Court, a three judge panel mandated a significant reduction in the state prison population such that the “in-state prison capacity is brought to within 137.5% of institutional design capacity” (Brown v. Plata, 2011).
In order to reduce the prison population, the state began to shift lower-level offenders to local custodial and community supervision programs. This process, otherwise known as realignment, posits that “officials at the local level are better situated to identify the needs of their communities and create specialized programs for implementation” (Smude, 2012, p.153). There are three major benefits in realignment for California’s correctional system. First, the financial costs of incarcerating the largest prison population nationwide have taken its toll. It costs over $47,000 a year to incarcerate an individual, due to rising security and health care costs (Legislative Analyst Office (LAO), 2008–2009). The current state budget crisis led to significant cuts to many areas in the state, including social services, education, government services, and public works. Second, the crisis forced the reduction because of overcrowding in the state prisons as ordered by the courts under Brown v. Plata (2011).
Finally, California’s correctional system failed to effectively rehabilitate offenders. A review of recidivism rates for those offenders released during the 2007 to 2008 fiscal year demonstrates that 47.4% were returned to prison within one year of release, and 59.2% were returned to prison within two years of release (CDCR, 2011b). In addition, California’s rates are generally 15 to 20% higher than national recidivism rates. The majority of these offenders do not return to prison for new offenses. Rather, they violate the technical rules of their release (such as curfew violations, failure to obtain a job, etc.).
California’s realignment plan involves a complete overhaul of the state’s correctional system in a number of ways. First, California Assembly Bill AB 109 allows for nonviolent, nonserious, and nonsexual offenders to serve their sentence in county jails instead of state prison facilities. While convicted jail inmates are generally convicted of misdemeanors and incarcerated for less than one year, the Public Safety Realignment Act of 2011 revised the definition of felony to permit certain offenders to serve sentences greater than one year in jail facilities. This shifts not only the management of these offenders to local jurisdictions, but the costs of supervising these offenders as well. However, counties are allowed to contract with the state to send these offenders to state facilities (CDCR, 2010). Second, each county created a post-release community supervision (PRCS) program administered by the county probation department as an alternative to parole. The shift of post-incarceration supervision to the county level is limited to three groups: (a) non-violent offenders, (b) non-serious offenders, and (c) low-risk sexual offenders. PRCS applies to these individuals who are released after October 1, 2011. Third, on their release from prison, CDCR no longer has jurisdiction over the individual. This is particularly important in cases of parole revocation. Instead of returning these cases to state prisons, revocations of PRCS will be sent to local jails and sentences will last no longer than 180 days. For those low-level offenders who were sentenced to parole prior to realignment, the state parole agency has the authority to terminate an individual’s parole, if they have been violation free for six months. Finally, each county created an executive committee charged with making recommendations for implementing realignment at the local level. The executive committee is composed of the chief probation officer, chief of police/sheriff, district attorney, public defender, presiding judge of the Superior Court, and a representative from the Division of Health and Human Services (CDCR, 2011b).
Even though counties received funds from the state to ensure that they do not bear the financial burden of the realignment process, there was little direction at the state level as to how counties should spend the money and what types of programs to implement (Lofstrom, Petersilia, & Raphael, 2012). As communities consider the types of programming to implement, scholars argue that a successful realignment plan should include wraparound services that focus on collaborative relationships between multiple agencies both at the public and private level. Inmates face a variety of challenges related to the reentry process, including finding a job, a place to live, and dealing with substance abuse issues. Prior to realignment, many offenders did not have access to realignment services. A study by Vera Institute of Justice indicates that only 13% of inmates serving time at the Los Angeles County Jail received any sort of reentry programming while in jail (Sandwick, Tamis, Parsons, & Arauz-Cuadra, 2013). In addition, counties should look to evidence-based research when developing and implementing policies and programs (Krisberg & Taylor-Nicholson, 2011).
To date, we have seen several positive examples of realignment in action. In Santa Clara County, representatives from a variety of public agencies and community partners have come together to streamline services for offenders. Their plan focuses on education, employment, housing, health and well-being, and family reunification as the cornerstones toward successful rehabilitation and reentry (Wilson, 2013). In Merced and San Bernardino counties, professionals from law enforcement, probation, human services, and mental health are housed together at day reporting centers in an effort to work together as a team to serve the needs of AB 109 clients (Giwargis, 2013; San Bernadino County, 2012). These types of collaborative efforts in the community place fewer fiscal demands as the costs of housing an inmate in jail is $156 per day, compared to the $17 per day cost of AB 109 monitoring (Giwargis, 2013).
To increase public safety in this austere budget environment, we must support cost-effective efforts by states that are grounded in the “best practices” and draw on the latest innovations from public corrections and the faith-based community … For many years, reducing recidivism seemed nearly impossible. Now, many states are starting to turn a corner through commonsense and cost-effective reforms. (Pew Center on the States, 2011, p. 6)
While realignment creates significant opportunities for California to transform their correctional system, there are significant risks as well. The legislature created pathways to fund realignment, but many question whether these allocations are sufficient to manage the caseload placed on local jurisdictions. Some officials also expressed concerns about whether local communities could be at risk for due process and equal protection legal challenges by inmates—challenges based on the counties’ ability to effectively deliver services due to costs as well as variations between the types of programming that each county offers (Krisberg & Taylor-Nicholson, 2011). While the intent of AB 109 was to create community alternatives to incarceration, many counties focused on expanding jail facilities to house offenders (Reentry Court Solutions, 2013).
Counties that choose to expand their jail capacity will encounter large capital budget outlays, extended periods for design and construction of new facilities, and little public support for more local spending on corrections as opposed to education, sustainable new job creation, health care, and other vital community needs. (Krisberg & Taylor-Nicholson, 2011, p. 5)
If successful, California’s realignment plan could represent a model for states nationwide. While critics question whether public safety will be compromised with the expansion of community supervision programs and jails in lieu of prison, only low-risk and low-level offenders will be shifted to these types of programs. In addition, the state may benefit from substantial cost savings by utilizing local criminal justice agencies instead of prisons for low-level offenders (Vuong, Hartney, Krisberg, & Marchionna, 2010). In addition, research indicates that the use of short periods of incarceration or intensive community supervision options are more effective in preventing recidivism (Kleiman, 2009). Finally, the ability to use discretion when determining punishments is key. Unlike state parole, which imposes a mandatory three-year intensive supervision to all offenders released from state prison, the ability to utilize flexible options and customize both individual programs and the system as a whole ultimately benefits the unique needs of individual offenders (Krisberg & Taylor-Nicholson, 2011).
Zero Tolerance and Tough on Crime: Rolling Back on Juvenile Offending
In 1899, the first juvenile court was formed in Chicago, Illinois, under the doctrine of parens patriae. Under this philosophy, the state assumed responsibility for wayward children, removed them from their parents’ care, and placed them in institutions under the guise of acting in the best interests of the child. States began to distinguish between the criminal actions of adults and the delinquent actions of youth. By separating juveniles from adult offenders, the juvenile court developed its own set of procedures and practices for dealing with cases of delinquency. This shift represented a new philosophy: “children had to be treated, not punished and the judge should act as a wise and kind parent” (Regoli, Hewitt, & DeLisi, 2009, p. 19). By 1945, all states had juvenile courts (Ferdinand, 1991).
By the end of the 20th century, many of the practices in the juvenile court reflected the retributive philosophy that governed the adult criminal court system. As you learned in Chapter 12 of this text, the use of juvenile waiver policies dominated this practice, as states began to send a message of “do the adult crime, do the adult time” to juveniles by transferring youth who had committed serious infractions to the adult court. Much of these get tough on juvenile crime policies rose to power as a result of growing concerns about significant increases in the number of violent offenses committed by juveniles. Projections by researchers like Wilson (1995) and Dilulio (1996) added fuel to the fire that juvenile superpredators would fuel a crime wave with significant increases to the violent crime rate. Despite the fact that the superpredators never materialized and that violent crimes actually decreased nationwide (Federal Bureau of Investigation (FBI), 2012), these fears led to an increase in tougher laws designed to combat juvenile crime. In addition to increasing the option of transferring juveniles to adult court, states expanded their sentencing options for juvenile offenders, modified confidentiality clauses which created greater open access to juvenile court proceedings and juvenile records, developed additional correctional programs for juvenile institutions, and increased victims’ rights within juvenile proceedings (Lawrence & Hesse, 2010).
The expansion of juvenile sentencing practices meant that youth were treated more like adults. While in 1989 the option of the death penalty was prohibited for youth under the age of 16 (see Stanford v. Kentucky),nineteen states had laws on the books permitting the use of capital punishment for youthsaged 16 and 17. Between 1990 and 2003, 19 people who committed crimes as juveniles were executed in Louisiana, Texas, Georgia, Missouri, Oklahoma, and Virginia (Death Penalty Information Center (DPIC), 2003). The juvenile death penalty was abolished nationwide in 2005 with the U.S. Supreme Court decision in Roper v. Simmons. As a result of the “evolving standards of decency that mark the progress of a maturing society,” the Court held that the practice of executing juveniles violated the 8th and 14th amendments of the Constitution. As a result, 71 inmates on death rows across twelve states saw their sentences commuted to life without the possibility of parole.
Even in states that either opposed the practice of death entirely, or limited the application to adult offenders, life without parole was available in 39 states for juveniles over the age of 14 (Malcolm & Slattery, 2012). Perhaps one of the most controversial uses of this practice occurred in the case of Lionel Tate. Tate was a 14-year-old boy who was sentenced to life without the possibility of parole in Florida in 1999 for the death of his 6-year-old neighbor. Tate became the youngest offender in the United States to receive a life without parole (LWOP) sentence. Following national attention in opposition to the punishment, his sentence was overturned in January 2004 and he was released on probation. However, he was arrested in 2005 for armed burglary with battery and armed robbery. As a result, he was sentenced to thirty years in prison for violating his probation (Aguayo, 2006).
Tate’s case was one where the nature of the charge led to the imposition of a mandatory sentence under the law. In the case of Miller v. Alabama (2012), the court held that use of mandatory life without the possibility of parole for juveniles is unconstitutional. Writing for the majority, Justice Kagan cited that 85% of all juvenile LWOP sentences come from states where the sentence is mandatory, which takes away the sentencing discretion in these cases. While the court did not prohibit the use of LWOP sentences for juveniles in general, many states began to implement alternative practices. For example, the Nebraska senate is currently considering a bill to replace juvenile LWOP with a 20-year minimum sentence (Swift, 2013). In 2012, the California legislature passed Senate Bill 9, which involves juveniles sentenced to life without the possibility of parole and permits judges to revisit sentences in these cases after fifteen years and to make adjustments to their sentences, a practice that would “allow judges to go back and review past sentences and look at who this individual has grown up and become” (Burke & Cavanaugh, 2012). Despite a positive record as a juvenile, not all youth successfully transition to their adult lives outside of prison. Like Lionel Tate, John Engel was 14 years old when he was charged with murder in Colorado in 1999. Engel was convicted of murdering his adoptive mother and grandmother. Initially sentenced to thirty-two years, his sentence was converted to a community corrections sentence after serving eight years in a juvenile facility (Shields, 2008). Within three months of his release, Engel was charged with technical violations related to his release and was returned to prison (Aguilar, 2009). Perhaps one of the most ironic twists in this case was that Engel was only five days past his 14th birthday at the time of his crime—under Colorado law, youths under the age of 14 receive a maximum sentence to age 21 to be served in a juvenile facility (Shields, 2008).
At the same time that we saw increases in punitive policies in the juvenile court, zero-tolerance policies began to emerge within school environments. Zero-tolerance policies focus on the reduction ofdrug abuse and violence in schools and requires punishment for any infraction, regardless of its degree of severity, whether it was an accidental mistake or other extenuating circumstance. Zero-tolerance laws gained popularity beginning in 1994, when Congress passed a law requiring a one-year expulsion for any youth who brought a firearm to school (Gun-Free Schools Act, 1994). Despite the intent to create safe spaces in schools for students, zero-tolerance policies resulted in a range of negative consequences. “Zero tolerance often leads to indiscriminate suspensions and expulsions for both serious and mild infractions and disproportionately impacts students from minority status backgrounds and those with disabilities” (National Association of School Psychologists (NASP), 2001).
The roots of zero-tolerance policies are based in the broken windows model of policing, which suggests that communities can prevent larger acts of violence by enforcing minor law infractions, such as loitering, drinking in public, graffiti, and other public nuisance crimes (Wilson & Kelling, 1982). As high profile events of school violence, such as Columbine and Virginia Tech, began to dominate the news, the popularity of zero-tolerance policies in schools increased significantly. Even cases like Sandy Hook, while not a case of school violence per se, impact how school administrators engage in disciplinary decision making. Yet, research demonstrates that such policies have a negative impact, not only on the consistency of discipline in schools, but also decrease the academic achievements of students (American Psychological Association (APA), 2008). In addition, many schools are now utilizing the juvenile justice system to manage classroom disciplinary issues rather than deal with these minor infractions internally (Casella, 2003; APA, 2008).
Recently, many jurisdictions started to rollback zero-tolerance policies, citing concerns that such practices actually increased crime in their schools and communities. “From kids getting kicked out of school for playing games with fingers pointed like guns on the Eastern Shore to chewing their breakfast pastry into “gun-like” shapes in Baltimore” (Allard, 2013), events like these demonstrate that the broad application of zero-tolerance has exceeded its original intent. In Los Angeles, school police officers agreed to stop writing citations for truancy and other minor infractions, and instead refer students to youth programs that help students with the challenges that they face (Watanabe, 2012). In March 2013, Maryland State Senator Jennings introduced The Reasonable School Discipline Act of 2013 (Senate Bill 1058, 2013). Rather than provide a one-size-fits-all philosophy, this proposed bill allows for greater discretion when handing out disciplinary infractions, such as school suspensions and expulsions. In the Denver Public Schools, school resource officers now only respond to serious criminal actions, while the school district implemented restorative justice practices to deal with disruptive students. As a result, the district saw significant decreases in the number of youth who are suspended or expelled (Hing, 2003).
un Control Policy: A Renewed Interest in the Second Amendment
Every time a horrific incident involving a gun-toting shooter occurs, there is a strong call to pass tougher gun legislation. There is also an equally strong call to leave our gun laws alone. Few, if any, criminal justice policies are as contentious as gun control. This is because no policy issue is more emblematic of the necessity to balance our desire to control crime against the protection of our constitutional rights than gun control (except possibly the ability of government to invade our privacy).
Like so many other issues, gun policy is greatly impacted by public response to high profile incidents. In fact, it has taken front stage lately with the occurrence of several unfortunate and dreadful events involving shooters killing unsuspecting victims with high-powered, and sometimes illegally obtained, weapons. Mass shootings, in particular those committed by young people, have devastated communities and dominated the news in recent years. You may be familiar with some of the most horrific recent examples.
Dylan Klebold and Eric Harris (both 17 years old) murdered 12 students and a teacher (and injured 21 others) during a rampage at Columbine High School in Colorado on April 20, 1999.
Cho Seung-Hui, a 23-year-old student at Virginia Tech, killed 32 students (2 in a dorm and 30 in a classroom) before committing suicide on April 16, 2007.
A former graduate student at Northern Illinois University, Stephen Kazmierczak, shot and killed 5 students and himself (and injured 17 others) when he opened fire in a classroom on February 14, 2008.
Jared Loughner, a 22-year-old with suspected mental health problems, shot and killed 6 people (and injured 13 others) at a public rally for Senator Gabrielle Giffords in Tucson, Arizona, on January 8, 2011.
James Holmes (24 years old) set off tear gas in a crowded movie theater showing the premiere of The Dark Knight Rises, then shot and killed 12 moviegoers (and injured 58 others) on July 20, 2012.
Adam Lanza (20 years old) shot and killed 26 people (20 of them 1st graders) at Sandy Hook Elementary School in Newtown, Connecticut, on December 14, 2012.
In a standard year, approximately 30,000 people die from firearm-related incidents (Center for Disease Control (CDC), 2011). Some of these shootings, such as the ones above, received major national news coverage, while many others received only scant local coverage. These stories not only captured the headlines in recent years, they also caused people to question their stance on gun control policies. The latest tragedy in particular, the one in Newtown, Connecticut, shined a bright spotlight on gun control and spurred the nation to investigate and vigorously debate the role of gun policy in these and similar crimes. Immediately after the Newtown incident there was a loud call for tougher gun control and the percent of Americans who supported stricter gun control was at a 10-year high (57%) (Constantini, 2012). That strong support appears to have been short lived, as three months later the percentage of Americans who support stricter gun control dropped to 47% in March of 2013 (Peralta, 2013).
Immediately after the Newtown shooting, President Obama and others called on Congress to pass meaningful gun legislation. This proposed legislation includes controversial measures, such as expanding the use of background checks, particularly at gun shows. While over 40% of guns are sold at gun shows and are often exempt from requiring background checks, opponents of tightening these legislations suggest that such procedures only limit the rights of those who legally possess these weapons. Yet, Adam Lanza, James Holmes, and Jared Loughner all used weapons that were legally obtained. Another hotly debated component of Obama’s plan involves the assault weapons ban. Initially passed by Congress in 1994, the assault weapons ban prohibited the manufacturing of all fully automatic firearms and selected semi-automatic firearms as well as high capacity ammunition magazines, though it did not limit the ownership or sales of any of these weapons manufactured prior to the ban. Some questioned the efficacy of the ban, including Senator Lindsay Graham (R) from South Carolina, who stated that “we had the assault weapons ban from 1994 to 2004 and the conclusion was, it did not change crime…. in an appreciable way” (Jackson & Madhani, 2013, p. 6A). In his proposal, President Obama not only called to reinstate the assault weapons ban, but to limit ammunition magazines to ten rounds,1 and to ban the possession of armor piercing ammunition. In addition, Obama’s plan calls for increased funding to improve policing resources (hire more officers, increase training, etc.), resume social science research on gun violence, reinforce school safety initiatives, and provide funding toward early identification and intervention in our mental health system (Jackson & Madhani, 2013).
1 Both the Sandy Hook and Aurora Movie Theater shootings involved the use of high capacity magazines, which some have argued contributed to the high death count of victims.
As evidence of the contentious nature of gun control policy discussions, Congress has yet to agree on any gun policy issues. Even though more than 90% of Americans support universal background checks for all gun purchasers, Congress cannot agree on several particulars (for example, whether back-ground checks are necessary for gun transfers, private sales, or online sales) (Rucker & O’Keefe, 2013). Another major item being debated is the legality of assault-style weapons. Here, one of the main problems is that there is not an agreed-on definition of what constitutes an “assault-style weapon” and the process of defining the term is highly contentious. In general, definitions are cosmetic in nature and defined by several features that are typically associated with military weapons, such as magazines that hold a high number of rounds, having a folding stock, a pistol grip, or able to fire a specific number of rounds per second. Given the strength of the National Rifle Association (NRA), and its stance on this issue, it is unlikely that we will see any compromise on this issue in the near future.
For this reason, we are most likely to see substantive gun policy passed at the state level rather than the federal level. This is because politicians at the state level can more easily pass legislation that fits with the personality of their state, without exposing themselves to the risk of not being reelected. We have already seen several states pass comprehensive gun legislation. For example, Colorado Governor Hickenlooper signed landmark legislation in March 2013 that requires background checks for private and online gun sales, and bans magazines that hold more than 15 rounds of ammunition (Moreno, 2013). California, Delaware, and a dozen other states are in the midst of voting on a number of gun laws to ban or strengthen existing bans or restrictions on particular weapons, high capacity magazines, and/or bulk purchases of ammunition, as well as require registration of guns and gun parts (O’Keefe, 2013).
The debate about gun policy has reached new heights, in part because of a 2008 U.S. Supreme Court decision (District of Columbia v. Heller). Heller, a Washington, DC, special policeman, carried a gun for work, but was denied a license to keep the gun at home. The U.S. Supreme Court (USSC) held in District of Columbia v. Heller (2008) that the Second Amendment protects an individual’s right topossess a firearm for lawful purposes. The USSC’s decision was a dramatic departure from earlier precedent because prior to this point, the Second Amendment was interpreted narrowly, within the framework of gun carrying for the purposes of militia service only.2
Although the USSC took a strong stand on the Second Amendment’s protections, its decision left open many issues regarding our right to bear arms. In his majority opinion, Justice Scalia firmly stated that the Second Amendment guarantees the “individual right to possess and carry weapons in case of confrontation” (District of Columbia v. Heller, 2008). He specifically noted the ability of lawmakers to restrict and control who ownsfirearms (prohibiting felons and the mentally ill from owning is acceptable), how they are carried (concealed weapon prohibitions are acceptable), and where they can be carried (sensitive area prohibitions are acceptable).
Why is Gun Policy so Contentious?
At the heart of the issue is our Second Amendment right to bear arms contrasted against our strong desire to protect innocent individuals from gun violence. Herbert Packer’s due process and crime control models of criminal justice help us understand the issue more clearly. On one side of the issue, the due process side, are individuals who interpret the U.S. Supreme Court’s decision to mean that individuals have a constitutional right to possess any type of firearm and that right is more important than public safety concerns. These folks, mostly Libertarians and Republicans, want no restrictions (or very few) restrictions on gun possession and ownership. They contend that any restriction on gun possession weakens and infringes on our constitutional rights.
2 McDonald v. City of Chicago (2010) solidified this new precedent and incorporated this decision to the states through the 14th Amendment.
On the other side of the issue, the crime control side, are individuals who support legislation that limits and controls Americans’ access to guns in order to protect public safety. These folks, mostly Democrats, favor what they call “sensible gun policy” that places some restrictions on who can carry, where people can carry, when people can carry, and what people can carry. Crime control advocates argue that if a gun feature is not necessary to protect one’s person or property, it should be outlawed (e.g., assault-style weapons). They want to close loopholes that allow criminals and other restricted individuals from purchasing guns and increase penalties on straw purchasers (i.e., people who purchase guns for people who cannot legally purchase them). A good example of this side’s views is New York City Mayor Michael Bloomberg’s pro-gun control advertising campaign, which featured a gun rights advocate asserting “with rights come responsibilities.”
Interestingly, one of the reasons this is such a thorny issue is because individuals who typically support a due process model find themselves advocating a crime control view and vice versa. Under most circumstances, certainly when discussing 4th and 5th Amendment issues, Democrats and Libertarians support a model that preferences our due process rights over our crime control efforts, and Republicans typically support a model that favors government’s ability to control crime over our due process rights. On this issue, however, both sides are on foreign soil—Republicans and Libertarians are joined in a fight to uphold every ounce of our 2nd Amendment constitutional rights while Democrats are in the unique position of arguing to restrict rights in favor of crime control. Of course, the issue is not completely black and white and there are many, many shades of gray.
Given the vast ideological differences on this issue, it is instructive to consult the available scientific research for evidence on effective gun policies. Unfortunately, there is not enough quality research on gun policy to provide guidance about which gun laws tend to work in which circumstances. One of the reasons for this dearth of research is a lack of government funding on the issue. Since 1996, the Center for Disease Control (CDC) has been prohibited from funding any research that may “advocate or promote gun control” (Plumer, 2013). New York City Mayor Michael Bloomberg’s advocacy group estimates that this law single-handedly reduced studies on gun violence by 60% (Mayors Against Illegal Guns, 2013).3 Their recently published report describes how the Washington gun lobby successfully restricted academic studies on gun violence as well as the ability of law enforcement, military, and medical professionals to share information about guns or gun violence (Mayors Against Illegal Guns, 2013). Although government-sponsored grants are not the only source of funding for academic research, they play a pivotal role in setting research agendas. Fortunately, this situation should change shortly, as President Obama signed an executive order in January 2013 directing the CDC to, once again, study the “causes of gun violence.” However, shortly after President Obama signed that order, the NRA (the most powerful gun lobby in the nation), mounted a campaign to keep language in the 2014 budget that limited data collection and research on gun violence (Stachelberg, Gerney, & Parsons, 2013). At the end of the day, this demonstrates how politically charged some criminal justice policy research can be; but, the important question that needs to be asked is: Why is the NRA so afraid of scientific research?
3 The NRA retorted with their own “School Safety Report” that recommended arming school personnel and adding armed security guards (or police officers) to schools as a viable and preferred strategy to prevent school violence (Hutchinson, 2013).
Search and Seizure in the 21st century
The issue of emerging technology has posed challenges for the courts since wiretapping was introduced in the 1870s. The courts, however, are often slow to respond to constitutional issues pertaining to the use of new technologies because of our lengthy judicial process. In fact, it took 60 years before Congress placed the first restrictions on law enforcement’s powers to use wiretapping for investigative purposes and 90 years before the Supreme Court required police to obtain a warrant prior to placing a wiretap (Katz v. United States, 1967). The use of thermal scanning, pen registers, and trap and trace devices provide additional examples of the courts’ failure to protect our 4th Amendment rights from newer and more invasive technologies.
As police continue to take advantage of emerging technology in the 21st century, our 4th Amendment rights (written in the 18th century) inevitably and necessarily will come under much closer scrutiny by the courts. As forward thinking as the framers of the constitution were, they could not possibly have imagined the technological world we live in today. For this reason, the U.S. Supreme Court, as well as our lower courts of appeal, are called on regularly to interpret the intentions of the framers as they pertain to the expanded capacity of today’s technology. As a society, we need to consider the significant opportunities and consequences that come with our latest technological innovations and find a balance between protecting public safety and protecting our due process rights. Some important 4th Amendment issues on the horizon that will very likely have a potent effect on average citizens are: the use of drones for law enforcement purposes, collection and use of DNA, and the circumstances under which police may utilize specific technological devices and applications (such as GPS, cell phones, social media) to establish probable cause and/or build a case against a suspect.
The 4th Amendment of the Constitution provides Americans the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause …” However, this permanent right is subject to an ever changing interpretation of “unreasonable search.” In order for a search to be considered “unreasonable,” (a) an individual must have an expressed expectation of privacy, and (b) that expectation must be reasonable (Katz v. United States, 1967). This is the cornerstone of our 4th Amendment rights; however, it is important to appreciate that the court’s interpretation of “reasonable” will change as technology advances and societal expectations of privacy change. For example, closed-circuit cameras are now part of our daily lives and we expect that we are on camera when we shop at retailers, put gas in our vehicle at the service station, and drive through certain intersections. As such, if we commit a crime or traffic infraction in one of these places we expect that we might get caught, prosecuted, and punished.
Every generation for at least 150 years was concerned with the capabilities of new and remarkable technological innovations to place behavior under surveillance and see or hear things that we thought to be private. Today, just like past generations, astonishing technologies allow the government to look into our daily lives in new ways that require us to consider the implications of those methodologies under the 4th Amendment.
Drones, or Unmanned Aerial Vehicles (UAVs), are “aircraft that can fly without an onboard humanoperator” (Thompson, 2012, summary, Para. 2). They can fly on autonomous programming or can be controlled remotely by a ground operator. Drones, which range in size from the size of an insect to the size of a standard jet, were initially developed to be used by our military overseas; but, with the winding down of the war, surplus drones are beginning to enter the U.S. marketplace. A recent government report estimates that there will be 30,000 drones in our airspace by 2033 (Thompson, 2012). Currently, drones can only be flown under 400 feet by persons or agencies that have an FAA-issued Certificate of Authorization to operate an UAV (Thompson, 2012). Although there are only about 300 drones in use in the United States today, Congress signed a bill in 2012 to make it easier to get drone licenses and plans to integrate significantly more drones into our airspace starting in the fall of 2015 (Wolfgang, 2012; Couts, 2012).
Drones are versatile, easy to operate, and relatively inexpensive, which makes them ideal for surveillance, reconnaissance, and many other law enforcement (and non-law enforcement) purposes. For example, drones equipped with laser radar (LIDAR) and license plate readers could render traditional traffic officers obsolete. Depending on if, when, where, and how Congress or the U.S.S.C. allow them to be used for traffic enforcement, drones have the potential to change the driving habits of prudent motorists across the nation.
Additionally, drones can be equipped with a variety of specialized equipment, such as electromagnetic radar (which can create 3D images of concealed objects) and thermal imaging (which uses heat-sensitive technology to display images of things and people). Drones equipped with these powerful technologies will have the awesome (and frightening) capability to see through solid objects (such as walls and ceilings) (Thompson, 2012). Drones can also be equipped with facial or soft biometric recognition software which would allow them to surveil and track specific individuals (Thompson, 2012). Given the capacity to store vast amounts of highly personal information, this feature has important 4th Amendment considerations. Drones could even be equipped with Tasers, bean bags, and other weapons. Despite the fact that only a few law enforcement agencies currently have access to drones, this technology has the potential to revolutionize policing in the very near future.
In June 2011, Rodney Brossart of North Dakota became the first person arrested with the assistance of a drone (Koebler, 2012). He unsuccessfully argued that his 4th Amendment rights were violated when police deployed a borrowed drone to pinpoint his location on his property during a standoff with police (Wolverton, 2012). For purposes of the 4th Amendment, courts will probably liken drones to helicopters and other manned aerial vehicles. While aerial searches (for suspects or over property) do not violate 4th Amendment protections (as was the case above), drone surveillance may.
When determining whether drone surveillance violates the 4th Amendment, the court will likely look at several considerations. The first consideration, and probably the most important, is the location of the search (Thompson, 2012). Individuals have the strongest protections against unreasonable searches inside (and in this case, directly above) their homes. Fourth Amendment protections diminish the farther one goes from the house. Curtilage (the area immediately surrounding one’s home—e.g., backyard, patio, possibly the driveway) usually provides some privacy protections while open fields provide virtually no privacy protections over public spaces. Thus, drones probably will not be able to legally look through your ceiling or wall into your house, but they probably will be able to check out what is growing or stashed in your backyard. Protections against unreasonable search at or near international borders are almost nonexistent, so we can expect the courts to continue to provide great leeway to law enforcement in these locations.
The length of tracking will also be an important determinant of whether a search warrant is required (Thompson, 2012). The U.S.S.C. ruled in United States v. Jones (2012) that long-term tracking constitutes a search and requires a warrant due to the amount of information that can be collected. Other cases have upheld law enforcement officers’ ability to track individuals in public for shorter periods of time without a warrant.
Also, the sophistication of technology attached to the drone will most certainly matter in whether or not a warrant is required (Thompson, 2012). Technologies that are accessible to everyone (binoculars, for example) are generally more permissible than are sophisticated, specialized equipment (infrared, radar, etc.). Thus the government (the courts and/or policy makers) will most certainly need to weigh in on the types of equipment that can be affixed to drones for surveillance purposes (standard zoom lenses or high-powered infrared cameras, still photos or video, facial recognition software, etc.) as well as how long the information can be retained and how it can be used.
As drones and other technologies become widely available, the amount of privacy that individuals insist on will shrink. As our expectations of privacy shrink, so too will our 4th Amendment protections against unreasonable searches. This is because our protection against unreasonable searches is premised on our reasonable expectations of privacy in certain situations, and those expectations change with technological innovations. For example, how many drones there are and how they are used will likely change people’s minds about the type of surveillance activity that is considered reasonable and thus not protected by the Fourth Amendment (as an example, consider cameras in public spaces).
Despite some generally accepted law enforcement uses for drones (locating missing persons, capturing fleeing criminals, or surveying damage and locating victims after natural disasters), it is clear that the increased surveillance capacity of drones is frightening to many Americans. In addition to the three bills addressing the use of drones by law enforcement currently being debated in Congress (Thompson, 2013), several cities, counties, and states initiated creating their own laws that dictate when, how, and for what purposes police can (or cannot) use drones (Sengupta, 2013). This type of lawmaking at the local level is unusual (though not unheard of) and demonstrates the high level of anxiety that many officials possess regarding this new technology.
The ability to collect and analyze individuals’ DNA is another technological advance that provides a very powerful crime-solving tool for law enforcement agents; yet also challenges our 18th century constitutional protections. Since California v. Greenwood (1988), state courts have consistently equated discarded DNA to trash and allowed law enforcement officials to collect discarded DNA for investigative purposes without a warrant. The reasoning is, if you leave it behind (say on a cup or utensil), it is considered abandoned and you have no expectation of privacy. This ruling allows cops (in the real world and on television) to sift through a suspect’s trash, or offer a suspect a drink or meal, in order to collect his or her DNA and solve the crime.
All 50 states and the federal government have laws that allow DNA samples to be collected from persons convicted of a felony (Chemerinsky, 2013). But what about collecting DNA from individuals arrested for, yet not convicted of, a crime? Is that legal? At least 21states4 have laws that allow (or require) the collection of DNA from persons arrested for certain crimes (usually serious, violent, or all felonies). Traditionally, the courts upheld these laws as legal and allowed for the collection of DNA from felony arrestees by likening DNA to fingerprints (see State of Maryland v. Raines, 2004; Anderson v. Commonwealth of Virginia, 2007) (
4 The following states allow this practice: Alabama, Alaska, Arizona, California, Colorado, Florida, Indiana, Kansas, Louisiana, Maryland, Michigan, Minnesota, Missouri, New Mexico, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia (
In 2012, the U.S. Supreme Court granted certiorari in the case of Maryland v. King. The central issue before the court in Maryland v. King is whether DNA can be collected for the purpose of linking a suspect to other crimes, crimes that he is not suspected of committing (Chemerinsky, 2013). In other words, can the police “go fishing” with a criminal’s DNA without a warrant and without probable cause because the technology exists to do so? In this case, the defense argued that DNA is qualitatively different than fingerprints and that because the DNA was used to link the individual to other crimes, the government needed probable cause and a warrant (Chemerinsky, 2013). The government, on the other hand, asked the court to apply a balancing test and affirm the law based on the minimal intrusion to the suspect in comparison to the potentially great benefits to law enforcement and society (Chemerinsky, 2013). After hearing oral arguments in the case Justice Alito commented that the case is “perhaps the most important criminal procedures case that this court has heard in decades” (Cassens-Weiss, 2013). In June 2013, the U.S. Supreme Court held that the collection of DNA from detained individuals is a legitimate component of the booking process and does not violate the protection against unreasonable search and seizure of the fourth amendment (Maryland v. King, 2013).
Another concern is what happens to an arrestee’s DNA if the charges against the individual are dropped or the individual is acquitted? Can the person’s DNA stay in a countywide or statewide DNA database if they are never convicted of a crime? Moreover, how do familial DNA matches (DNA matches based on a relative’s DNA) figure into this conversation about rights and privacy. The answer at the current time is: It depends on the rules established in each state. Federal courts have not ruled on these issues yet, but it is probably only a matter of time.
Other Emerging Technologies
Beyond drones and DNA, GPS, cell phones, and social media are all recent technological innovations that also pose conundrums for the courts and law enforcement agents. Each of these can be used to track our movements and our social connections. The ability to attach a GPS device to a suspect’s car means officers less frequently conduct “stakeouts” in the traditional sense. Attaching a GPS to a suspect’s car does, however, constitute a search and may require a warrant (United States v. Jones, 2012). Short-term tracking is generally allowed without a warrant, as long as the device is affixed to the car while it is parked in public and in a state whose state constitution does not prohibit it5 (United States v. Pineda Moreno, 2010; United States v. Jones, 2012).
5 State constitutions may be more restrictive of government conduct than our federal constitution. Massachusetts, New York, and Washington prohibit the use of tracking devices by government agents unless they have probable cause and a warrant.
Cell phones can also provide law enforcement officers with a wealth of information about a person’s life and activities–including evidence of wrongdoing. There are already several cases testing the limits of various aspects of this technology (e.g., accessing email, texts, calls, contacts, pictures, and social media accounts as well as GPS functionality with and without warrants). There are too many cases and situations to summarize here, but in general, cell phones can be searched incident to arrest (Seligman, 2012). Although the U.S. Supreme Court has not addressed the issue of warrantless cell phone searches, the Sixth Circuit recently held that police can track suspects via their cell phones without a warrant (United States v. Skinner, 2012). It is unclear whether a password-protected smartphone can be searched without a warrant—on the one hand password protecting one’s phone demonstrates an expressed expectation of privacy, but on the other hand courts ruled that there is no expectation of privacy when data are transmitted over public airwaves.
In determining whether law enforcement officers need a search warrant to access information on a suspect’s social media account, justices are considering the suspect’s privacy settings along with the size of his or her circle of “friends” to determine the individual’s expectation of privacy (the larger the circle of “friends” or “followers,” the less expectation of privacy).
There is little doubt that modern technology has eroded our reasonable expectations of privacy. With so many new technologies it can be hard to predict which ones may infringe on our 4th Amendment rights. Yet, we can expect courts throughout the nation to be called on frequently to apply our 18th century constitutional guarantees to our 21st century technology.
e Americans hold dear to our constitutional freedoms; however, sometimes those rights threaten our ability to effectively prevent crime and protect public safety. In these circumstances, we must carefully consider every goal and potential consequence of a policy or piece of legislation. While policy must always operate within the confines of the Constitution, policy can sometimes be dictated by constitutional challenges. For example, correctional realignment in California was a direct response to that state’s violations of prisoner’s rights. Similarly, recent U.S. Supreme Court rulings concerning the punishment of juveniles has impacted many state’s juvenile justice policies and changed how criminal justice practitioners and society respond to our youngest residents. In some cases, such as the case with gun control policy, the court provides broad constitutional strokes as a framework for policy construction, but leaves the particulars to be debated by state, federal, and sometimes local policy makers. Likewise, new and emerging technologies pose significant constitutional questions for our courts. It remains to be seen how policies like these will be addressed by the courts in the future, and the greater implications of the implementation of these practices for our criminal justice system.


(USA, AUS, UK & CA PhD. Writers)


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