Wednesday Writs: Brown v. Plata and Prison Reform Edition

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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29 Responses

  1. Oscar Gordon says:

    I still see prison reform as a problem of incentives. Prosecutors have an incentive to convict. Legislatures have an incentive to micromanage penalties so as to appear ‘tough on crime’ (e.g. sentencing guidelines, 3 strikes laws, etc.). But in the end, it comes down to money. Every person put in jail becomes a ward of the state, even more so than welfare recipients.

    So tie the budget of the DA to the budget of the DOC. For every prisoner incarcerated, the DAs budget is reduced by the amount needed to keep the prisoner. Convicts placed in diversionary rehab programs don’t count against the budget.Report

    • dragonfrog in reply to Oscar Gordon says:

      My crackpot theory is, if the states want to keep insisting on private prisons, then make the fees received by the prison companies subject to the results you want from the prison system.

      In particular, divide what’s currently being paid on a per prisoner per day basis, in half. Pay the first half of the current daily rate each day the person is incarcerated, and then after their release pay the other half for each day they’re not incarcerated. If someone’s in for 120 days and then gets rearrested 30 days after release, then the prison where they were held only earns 62.5% of the nominal fee (50% + (30 / 120) x 50%).

      Maybe raise the nominal fee so that *at current recidivism rates* the prison operators would earn about the same as they do now.

      If the prison operators want to keep getting paid the full rate, they’ll have to start getting serious about rehabilitation rather than their current financial motivation to undermine rehabilitation and create “repeat customers”.Report

      • InMD in reply to dragonfrog says:

        This is a backwards way of looking at the problem. States aren’t ‘insisting’ on private prisons. Private prisons exist because of overcrowding in state facilities, driven by criminalization and stiff sentencing.Report

    • Dark Matter in reply to Oscar Gordon says:

      For every prisoner incarcerated, the DAs budget is reduced by the amount needed to keep the prisoner.

      Sounds like the DA will have strong motivations to find a cheap place that will treat the prisoner like shit. Or maybe even do something along the line of slave labor.

      And poor high crime areas won’t have any money to imprison seriously henious people, so the poor people in that area will just have to suck it up. Also businesses will flee and make the area poorer.Report

      • CJColucci in reply to Dark Matter says:

        All of that is true and, indeed, obvious, which makes one wonder what Oscar could have been thinking, if anything.Report

      • Oscar Gordon in reply to Dark Matter says:

        That is one possibility, but a lot depends on what other incentives are applied as well. Perhaps the budget isn’t leveraged against the DA, but against the criminal justice courts, so judges think real hard about the penalties applied after a trial or a plea?

        But it’s all about incentives. Right now, legislatures, DAs and judges have zero incentive to limit the prison population to contain only those who are truly dangerous to society, rather than those who merely run afoul of some bit of moral offense that we’ve encoded into law. They can throw as many people into jail as they want and it costs them nothing. They have nothing to cause them to consider alternative ways to seek justice (and in many instances, even if they do, their hands are tied by the legislature).

        Crafting some incentive to hit them in the budget so they weigh each plea bargain and conviction carefully, rather than seeing them as just another tally on the scorecard is, IMHO, called for. And if the actions of the legislature strain those budgets because DAs and judges can’t explore alternatives, then those two groups are best positioned to lobby the legislature for relief, either through bigger budgets, or relaxed penalties.Report

        • Dark Matter in reply to Oscar Gordon says:

          Legislatures have to raise taxes to create prisons to house those subject to their moral outrage. Local Cops (who are the bulk) answer to their communities. Which isn’t to say that you’re wrong about the problem, big picture you’re right.

          But… idk. It’s a serious head twist of a solution (so well done there) and it seems like mixing/misusing your tools. I suspect we’d trip over unintended results but it’s hard to evaluate.Report

          • Oscar Gordon in reply to Dark Matter says:

            Honestly, if I get people thinking about the existing incentives, and how they can be changed to try and get us to where we want to be (without resorting to, “You will behave this way, or else…”), I’m happy.Report

  2. Oscar Gordon says:

    L7: Just like the guy suing Burger King for the impossible burger not being vegan enough.Report

  3. JoeSal says:

    Awareness ping: Senate Bill No. 64 in Virginia.

    Is this one assumed to pass in January?Report

    • Em Carpenter in reply to JoeSal says:

      Not sure if you are asking me, but if so, I wouldn’t know.Report

    • Michael Cain in reply to JoeSal says:

      I see that the fiscal note attached to the bill says they can’t estimate the fiscal impact. That is, they have no idea how many more people will be charged, tried, or put in prison as a result. During my time on a state legislature’s budget staff, that sort of note was code for “We don’t think anyone will be charged with this crime.” What usually happened in my state was that one of the two Appropriations Committees would kill the bill for “serves no purpose.” I’d guess this one suffers the same fate.Report

      • JoeSal in reply to Michael Cain says:

        I guess time will tell.Report

      • Kolohe in reply to Michael Cain says:

        This bill seems to me a deliberate response to the 2017 Charlottesville violence

        3. Assembles with one or more persons with the intent of intimidating any person or group of persons by drilling, parading, or marching with any firearm, any explosive or incendiary device, or any components or combination thereof.

        Not sure if it had been already proposed in a earlier legislative session or not, or if it’s only been proposed now because there’s been no criminal legal action(afaik) against the organizers of the Unite the Right rally – and that none is possible. (afaict, the only criminal chargers were against the guy that murdered Heather Heyer, and that other guy that drew his gun and shot at the guy with the improvised flame thrower.) (and another guy who was ambushed in a parking garage by the nazis had charges against him dropped)Report

        • JoeSal in reply to Kolohe says:

          Since “intimidating” and “civil disorder” are not well defined this basically gives the authorities the ability to run rough shod.

          What the idiots didn’t think of is that the constitution allows assembly and assembly with fire arms as a civil act by civilians. The only real civil disorder action that can happen is if LEO, SWAT or the military agents do any of this stuff as they are NOT civilians.

          So..they are making FBI, LEO, SWAT and military training a class 5 felony in Virginia.


  4. Doctor Jay says:

    L8: I keep asking myself “why did this case even get to a court?” I’m thinking an ex-wife was involved. Also, the question, “Why does this apply in someone’s own home?” comes to mind. I mean, you can’t ever take off your shirt, not even to take a shower?Report

    • greginak in reply to Doctor Jay says:

      My first guess was a disgruntled ex. That is almost certainly the spark that led to this. Add a bit of Utah and the general prudishness people have about icky nekkid bodies and there you go.

      The standard for lots of people would be that a step parent and even parents and siblings over the age of 10 or so should never be nude in front of each other.

      Related anecdote: Years ago i had a mom insisting her child was sexually abused by her ex husband/ father of the child because the child ran around the house naked and laughing after her bath. The naked child also jumped on her 17 year old sister and wiggled around on her. This was so clearly inappropriate it had to be a sign of something icky done to the child by the ex mom hated. The child in question was 3.Report

      • Em Carpenter in reply to greginak says:

        You’re correct- pissed off ex-wife reported it.
        There’s always more to the story of course, but I think she has a good equal protection argument. Report

      • dragonfrog in reply to greginak says:

        Years ago i had a mom insisting her child was sexually abused by her ex husband/ father of the child because the child ran around the house naked and laughing after her bath.

        So, the fact that the child clearly had no trauma around being naked in front of family members, was somehow evidence that something traumatic happened to them around being naked in front of family members?


    • PD Shaw in reply to Doctor Jay says:

      She’s being charged with lewdness involving a child (three counts for three children), so it wouldn’t normally apply to showering. Prosecutors accuse her of “stripping down in front of her stepchildren after making a statement about how if her husband could take off his shirt, then a woman should be able to as well. They further allege that Buchanan, while ‘under the influence of alcohol,’ had told her husband that she would only put her shirt back on if he showed her his penis.”

      On the one hand, get some boundaries woman; on the other hand, where does behaving badly rise to a crime?Report