Monday, May 12, 2008

Children go to jail, for lack of options

Children go to jail, for lack of options
By Robin Dahlberg and Amy Reichbach May 12, 2008

TWO YEARS ago, a 15-year-old named Maria was arrested for bringing a small fingernail file to school.

For eight weeks, she was held in a secure juvenile detention center awaiting trial. She was strip-searched upon entering the facility. She was housed with children who were drug-addicted, mentally ill, and charged with far more serious crimes than she was. The doors and windows of the facility were locked. And her ability to move around inside the facility was limited.

Maria was not jailed because she was a flight risk, or because she was a danger to her community. She was jailed because, having been raped by a family member before her arrest, a Massachusetts Juvenile Court judge felt she could not live at home safely. And the Commonwealth had no other place to put her. There were no readily available placements in either the Commonwealth's child welfare or mental health systems.

Maria's case is extreme, but she is hardly the only Massachusetts child to be jailed inappropriately while awaiting trial for a minor offense. Our organization, the American Civil Liberties Union, recently examined documents from the Department of Youth Services and interviewed dozens of professionals in the juvenile justice system. From the interviews, we found that hundreds of children who should be in the Commonwealth's child welfare and mental health systems are being jailed because Massachusetts has failed to provide these systems with sufficient resources.

Although these children have been charged with minor, nonviolent criminal acts, they are neither flight risks nor dangers to their community. Last year, for example, almost half of the 5,400 children who were locked up had been charged with misdemeanors. Most were eventually released back into their communities after their cases were resolved. Yet each child spent an average of 25 days in lock-up before an alternative placement was located or the child was permitted to return home.

Adding insult to injury, the Commonwealth's failure to adequately fund its child welfare and mental health systems falls heavily on the shoulders of youth of color. Although children of color comprise slightly more than 20 percent of Massachusetts's population between ages 7 and 17, they account for 60 percent of all children detained before a trial.

We are failing our children if we are locking them up for weeks at a time because we have nothing else to offer them. We are also threatening public safety. National research demonstrates that secure detention is one of the most accurate predictors of future criminal behavior. It further demonstrates the detention environment exacerbates behavioral problems, mental health issues and educational difficulties, and that detained youth are more depressed, angry, and dysfunctional when they are released than when they entered.

Massachusetts has already taken some important steps to limit the use of pre-trial juvenile lock-ups. The Commonwealth's Juvenile Justice Advisory Committee has publicly announced that one of its priorities reducing the number of youth of color in detention facilities. The Department of Youth Services is spearheading an effort supported by the Annie E. Casey Foundation to develop alternatives to detention.

But we must do much more. We must invest in creating alternatives to jail for youth like Maria. Massachusetts should increase the availability and accessibility of placements for adolescents in both the Commonwealth's child welfare and mental health systems. In addition, it should develop community-based programs to supervise children who need such supervision in order to return to their families. And the Massachusetts Juvenile Court should use these resources, limiting secure pretrial detention to those children who are flight risks or dangers to their communities.

The current approach is not working. By creating effective alternatives to pre-trial lock-up and reserving secure detention for the relatively small number of children who truly need it, Massachusetts can invest our scarce tax dollars more wisely. We can keep our kids in school rather than in lock-up and, in so doing, make our communities safer in the long run.

Robin Dahlberg is a senior staff attorney with the national ACLU Racial Justice Project. Amy Reichbach is the racial justice advocate for the ACLU of Massachusetts.

Thursday, May 08, 2008

The more we imprison, the less we vote

The more we imprison, the less we vote
By Conor Clarke and Greg Yothers May 5, 2008

FOR THE past 12 weeks, we have both been students in an Amherst College class on citizenship. Unlike most college courses, however, this one isn't held in a classroom. Each week, as part of the nationwide program Inside-Out, we meet for 2 1/2 hours in the dimly lit visiting room of the Hampshire County Correctional Facility. Half the students in the class are from the college; half are inmates at the facility.

It is a class on citizenship with a cruel irony: Because of a 2000 amendment to the Massachusetts constitution disenfranchising incarcerated felons, half the students in the class cannot vote. In about a week, all of the Amherst students will leave for the summer; many will volunteer for a presidential campaign. This November, like most adult citizens, they will walk to a local polling station or cast absentee ballots from the comfort of a college dorm. The students inside the facility can't.

American incarceration has received a lot of attention recently. Last month, The New York Times reported that one in every 100 American adults is in prison, the highest rate in the world by a wide margin, and about six times higher than the world median. This drive to incarcerate has been rightly and roundly criticized as too expensive (it costs more per capita to imprison than educate) and too harsh, since the vast majority of inmates are serving time for nonviolent crimes. But amid the controversy over price and punishment, it tends to be forgotten that incarceration imposes a cost on American democracy: The more we imprison, the less we vote.

Why should that be the case? In early 2000, before the amendment passed, Governor Paul Cellucci told Bryant Gumbel of CBS News that disenfranchisement was necessary to ensure that felons did not damage the political process. Cellucci said, after a group of Massachusetts prisoners tried to organize a political action committee in 1997, he "thought that this was a little bit ridiculous, that prisoners would actually politically organize and try to lobby against the very laws that put them in prison to protect the people of this state." The clear implication was that, once you've broken the social contract, you've proved yourself unfit for any social contact, including the right to vote.

But our experience in class suggests that the opposite is true. We all write the same papers, read the same material by John Locke and Alexis de Tocqueville, and are all equally engaged in debating and discussing everything from the role of the good citizen to America's role in the world. There is no reason to think inmates are uniquely unqualified to wield a vote, and no reason to think they can't.

Yes, going to prison necessarily entails the loss of liberty. But the right to vote is in many ways more important than the right to walk freely down the street: Voting is the most basic check against the coercive power of the state. The places where that coercive power is most starkly exercised, such as prisons, are also the places where that most basic of checks becomes more important. The fact that prisoners have a big stake in governmental choices isn't an argument in favor of disenfranchisement; it's an argument against.

And because the vote is so essential to democratic citizenship, it is also an important part of reintegrating inmates with society. Prisons separate and divide, but at their best they also prepare inmates for life after imprisonment. Rebuilding civic engagement is perhaps the most important part of that process.

There are more than 25,000 inmates in Massachusetts correctional facilities, and more than half are racial minorities. Almost all of them will, at some point in the future, exit their cells and return to their homes and families. It would be better if they returned as voting citizens.

Conor Clarke is an Amherst College student; Greg Yothers is an inmate at the Hampshire County Correctional Facility.

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Packed Prisons

Packed Prisons
The how and why of overcrowding

The US prison population grew eight-fold since 1970; more than 2.3 million people are incarcerated nationally. The rising numbers aren't proportional to population growth; the Pew Institute recently reported that for the first time in history, more than one in every 100 Americans is incarcerated. Don't like those odds? One in 30 men aged 20 to 34 is locked up, and that jumps to one in nine for black men. People of color make up 70 percent of the prison population, the reverse of the US race ratio outside prison walls.

The Massachusetts prison population grew by 3 percent since 2006, and overcrowding is pandemic. Two years ago, Massachusetts Department of Corrections (DOC) facilities were at 134 percent capacity. Now they've reached 143 percent. But that's merely a median ... MCI Framingham, the state's largest women's prison, is at 323 percent capacity. Only two of Massachusetts' 22 facilities are not spilling over capacity.

"Overcrowding means the facility population is greater than the design capacity," says DOC spokeswoman Diane Wiffin. "We turn single cells into doubles, provide more beds in a dormitory."

Hakim Cunningham was recently incarcerated in Massachusetts. "They were putting two or three people to a cell together," he says. "In Concord CI, they have people sleeping on the gym and rec areas in cots."

Such solutions are dangerous, says Joel Pentlarge, acting executive director of the Criminal Justice Policy Coalition, a nonprofit that advocates reforming the state's justice system. "Those cells are very small—typically under 80 square-feet. They're designed to hold only one prisoner," he says. "Those conditions escalate prisoner-on-prisoner violence."

Why is the prison population climbing, and why are people of color disproportionately incarcerated?

The relationship with Massachusetts' crime rate is tenuous; the prison population has climbed steeply since the late 1970s, but crime has wavered up and down, with peaks in the mid '70s and early '80s, and a steady decline since 1990.

Thomas Nolan, a professor of criminal justice at Boston University and retired Boston Police officer, says the rise in imprisonment corresponds with the war on drugs. "What we're seeing nationally, as well as in Massachusetts, is an incremental, long-term trend to incarcerate people, particularly for drugs," he says.

Nolan joined the Boston Police Department (BPD) in 1978, and saw the shift in national priorities play out locally. "In the mid '80s, police departments in urban areas devoted more time and attention to drug enforcement than ever before. Historically, a department goes where the federal funding goes. In the 80s it was the war on drugs, in the '90s it was community policing," he says. "In the 70s we had a small, centralized city drug department of half a dozen officers. Now, every district has its own drug unit. Roxbury even has two of them, a day shift and a night shift. And there's still a city-wide unit. So you've got 100 officers whose sole purpose is enforcement in the war on drugs."


Phillip, who asked that his real name not be used, has been shooting heroin since he was 16. He grew up in Cambridge public housing. Both his parents were junkies; his mother died of AIDS in 1997, his 65-year-old father is still in a methadone clinic. His father's face is scarred from "an incident when he fell asleep on a radiator because he was so high."

"There were a couple of times when my father would come into school inebriated and tell the teacher, 'Phillip has to go, he has a doctor's appointment,'" he says. "We'd walk out, and I'd say, 'Do I really have a doctor's appointment, Daddy?' and he'd say, 'No, I just thought you'd like to get out of there.' And I'd say, 'School's what I look forward to. It's the best part of my day.'"


While the percentage of people of color in Massachusetts prisons doesn't reach the national figures, they're still overrepresented. Hispanics make up 21 percent of prisoners in a state where they comprise 7.9 percent of the population. Nationally, Latinos make up 20.5 percent of prisoners, and 14.8 percent of the general population.

"It's not that these people are more likely to commit an offense," says Nolan. "They're just more likely to get caught and subsequently incarcerated."

National figures from 2000 indicate whites make up 72 percent of all drug users, yet blacks are five times as likely to get arrested on drug charges.

Their neighborhoods are policed more, according to Nolan. "Law enforcement is concentrating its efforts in communities of color," he says. "Historically, that's where law enforcement has devoted its resources. Law enforcement is going to tell you they go where the crime is, and it would be fruitless to focus elsewhere."

The BPD failed to respond to questions about their policies.

Katrina Christensen, a coordinator with the Cambridge Needle Exchange, says economic prejudices exist as well. "There's a stigma on a person sleeping on the street," she says. "There are many professionals out there who use, and people say, 'Oh, that's OK. They're doing well.' Well, what does that mean? That someone who's struggling to get by is useless?"

Pentlarge says the mentally ill are also more susceptible to getting mixed up in the criminal justice system. "When we closed down mental institutions in the '80s, prisons became the place of last resort for the seriously mentally ill," he says. With 15 suicides in the last three years, Massachusetts has the highest prisoner suicide rate in the country. Last year, the DOC hired suicide prevention specialist Lindsay Hayes to do an independent review of the phenomenon. Diane Wiffin says the DOC has implemented most of Hayes' recommendations.

Pentlarge insists prisons aren't designed to deal with mental illness. "A person might be seriously delusional," he says. "The prison's first response is to put them in solitary, which is where the majority of our prisoner suicides occurred."


Phillip started using because everyone around him was. But he couldn't afford it. "A lot of drug addicts resort to stealing to support their habit," he says. "The effect of the heroin will wear off, and it's a serious drag. When heroin addicts withdraw, they become ill."

In 1979, Phillip was convicted of armed robbery. He walked into a store, and the clerk welcomed him perkily. "I thought, 'I can't believe I'm about to do this. This isn't me.' I pulled out the gun, and she freaked," he says, dragging his fingers down his cheek. "It's hard for me to live with the fact that I traumatized this woman. I wasn't going to hurt her, but she didn't know that." He squats on the floor, placing his hand by his face. "She was just like this. It stays with me."

He went to prison when he was 17, and grew up inside those walls.


In 1994, the Gun-Free Schools Act mandated that states adopt legislation requiring the one-year expulsion of students who brought drugs or weapons to school. Massachusetts' statute allows for permanent expulsion and doesn't require any alternative education for expelled students.

Amy Reichbach, an advocate with the Massachusetts ACLU, says such measures are used mostly at schools with few alternatives. "Schools are under-resourced, and may not be able to offer counseling and the extra costs of different educational needs," she says.

Since the busing riots in the 1970s, Boston public schools have Boston School Police in their halls. Today, they employ 84 such officers, who don't carry weapons but have full arrest powers on school property.

Reichbach says transgressions the school traditionally dealt with are now met with harsher penalties or given to law enforcement. "There's a perception out there that this just affects kids bringing weapons," she says. "But they can get expelled for other misbehavior, like disorderly conduct. They can get arrested for disturbing a school assembly." Any student facing criminal charges (including offenses that occurred off school grounds) can also be suspended.

Tami Wilson studies this "school-to-prison pipeline" at Harvard's Charles Hamilton Institute. "This is happening more often than we think, though it varies by school district," Wilson says. "Five urban school districts in Massachusetts with a large population of children of color, immigrants and children eligible to receive free lunch were responsible for 103, or over half, of all school exclusions." Students of color make up approximately 20 percent of the state's student population, but represent over 55 percent of school exclusions. The state's dropout rate has also risen, reaching 3.8 percent.

In Massachusetts, 70.4 percent of prisoners never completed high school.

Aaron Tanaka, of the Boston Workers' Alliance (BWA), a nonprofit for underemployed workers, sees crime as a product of poverty. "About 12,000 Boston youth aren't in school," he says. "They don't have options in the mainstream economy, so they get involved in illicit activity, like drug trade or sex work."


Phillip's done several stints since his initial sentence; mostly petty thefts and drug charges. "You always come out worse than you came in," he says. "You come out with so much anger, your self-esteem plummets because you're used to being treated like you're worthless, like you have no value. People talk like I'm an evil, vile human being."

Now he's homeless. He can't get public housing or a job with his record. "Idle time for a drug addict is very dangerous," he says. "You can imagine."


Pentlarge says the state must find alternatives to incarceration. "Part of the reason we've so overcrowded is we're treating a disease as a crime," he says. "If we treated it like alcoholism, we'd ultimately save some money."

Nolan thinks there's been a shift in societal conception. "People lose their sense of relativity. We panic when we see the number of homicides reach 60, but forget that in the '80s, it hit triple digits," he says. "We have a harsh and punitive attitude toward those who violate laws. I think we should be targeting addiction and everything that goes along with it. Prisons serve no purpose other than warehousing people and taking them off the streets for a period of time."

Approximately 97 percent of prisoners face eventual release. A 2006 report from Brandeis University estimates at least 39,700 people in the state are in critical need of drug treatment, but aren't receiving it. The Pew Center recently found that in the last 20 years, Massachusetts' spending on corrections grew 127 percent, compared to a 21 percent increase for public higher education. For every dollar spent on a state college, 98 cents is spent on prisons.

The governor's extensive bond bill plan for infrastructure repairs includes $2.5 billion for prison repairs and expansions. It's in committee right now, but results are due in June. Rep. Carl Sciortino Jr., D-Medford, backed a bill placing a moratorium on prison construction for the next five years, and creating a committee to investigate incarceration trends. The bill's essentially dead for the session.

Wilson says that her final report on Massachusetts' school-to-prison pipeline will offer alternatives to punitive measures. "We're looking into restorative justice and peer mediation programs," she says. "Say a student commits some type of offense. Instead of shipping them off, they'd have to own up to what they did. An apology is made, and students work together to find ways to rectify the situation. It's more of a healing process, it's inclusive and the offense itself is addressed."

Such approaches to criminal justice exist in many court systems worldwide, and are being explored in some US states. Colorado, Kansas, Arizona, Delaware, Florida and Tennessee have passed legislation allowing for out-of-court reparation programs, particularly for juvenile offenders. No such legislation exists in Massachusetts.

For now, Wilson is focusing on the statistical landscape of the problem. "But as we look at data, it's important we make the connection that these are actual people with real potential," she says.


Phillip is still using. Over the course of the interview at the Cambridge Needle Exchange, he verged from tangential diatribes, to holding his eyelids open with his fingers, to scratching his arms, looking around the corner.

He says he'd like to get clean and councel other junkies. But it's not so easy.

"It's a mess of a life," he says. "You're defeated without hope. But I have hope."

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Publisher drops book ban lawsuit against Mass. prisons

NOTE: PLN is continuing its lawsuit against the MA DOC, as issues related to damages and attorney fees are still not resolved. PLN is ably represented by NPAP attorneys Howard Friedman and David Milton.

Publisher drops book ban lawsuit against Mass. prisons

By Associated Press Wednesday, May 7, 2008

BOSTON - State prison officials have decided to allow a publisher of legal self-help books to distribute its materials in Massachusetts prisons.

The decision comes after mail-order publisher Prison Legal News sued Department of Correction Commissioner Harold Clarke. The Seattle-based publisher claimed Clarke was banning its publications in state prisons by refusing to add it to a list of approved vendors who can send books to prisoners.

DOC spokeswoman Diane Wiffin said Prison Legal News was added to the approved distribution list on May 1. She said Clarke, who became head of the state’s prison system late last year, is in the process of examining all its policies and practices "to determine whether any changes would be useful or beneficial."

Prison Legal News publishes a monthly journal of court decisions and other news affecting the rights of prisoners. It also distributes books on inmates’ legal rights.

Editor Paul Wright said he’s pleased with the DOC’s decision.