Alexander: Risk assessment 'weapon of math destruction'

Michelle Alexander writes for the New York Times:

In the midterms, Michigan became the first state in the Midwest to legalize marijuana, Florida restored the vote to over 1.4 million people with felony convictions, and Louisiana passed a constitutional amendment requiring unanimous jury verdicts in felony trials. These are the latest examples of the astonishing progress that has been made in the last several years on a wide range of criminal justice issues. Since 2010, when I published “The New Jim Crow” — which argued that a system of legal discrimination and segregation had been born again in this country because of the war on drugs and mass incarceration — there have been significant changes to drug policy, sentencing and re-entry, including “ban the box” initiatives aimed at eliminating barriers to employment for formerly incarcerated people.

This progress is unquestionably good news, but there are warning signs blinking brightly. Many of the current reform efforts contain the seeds of the next generation of racial and social control, a system of “e-carceration” that may prove more dangerous and more difficult to challenge than the one we hope to leave behind.

Bail reform is a case in point. Thanks in part to new laws and policies — as well as actions like the mass bailout of inmates in New York City jails that’s underway — the unconscionable practice of cash bail is finally coming to an end. In August, California became the first state to decide to get rid of its cash bail system; last year, New Jersey virtually eliminated the use of money bonds.

But what’s taking the place of cash bail may prove even worse in the long run. In California, a presumption of detention will effectively replace eligibility for immediate release when the new law takes effect in October 2019. And increasingly, computer algorithms are helping to determine who should be caged and who should be set “free.” Freedom — even when it’s granted, it turns out — isn’t really free.

Under new policies in California, New Jersey, New York and beyond, “risk assessment” algorithms recommend to judges whether a person who’s been arrested should be released. These advanced mathematical models — or “weapons of math destruction” as data scientist Cathy O’Neil calls them — appear colorblind on the surface but they are based on factors that are not only highly correlated with race and class, but are also significantly influenced by pervasive bias in the criminal justice system.

As O’Neil explains, “It’s tempting to believe that computers will be neutral and objective, but algorithms are nothing more than opinions embedded in mathematics.”

Challenging these biased algorithms may be more difficult than challenging discrimination by the police, prosecutors and judges. Many algorithms are fiercely guarded corporate secrets. Those that are transparent — you can actually read the code — lack a public audit so it’s impossible to know how much more often they fail for people of color.

Even if you’re lucky enough to be set “free” from a brick-and-mortar jail thanks to a computer algorithm, an expensive monitoring device likely will be shackled to your ankle — a GPS tracking device provided by a private company that may charge you around $300 per month, an involuntary leasing fee. Your permitted zones of movement may make it difficult or impossible to get or keep a job, attend school, care for your kids or visit family members. You’re effectively sentenced to an open-air digital prison, one that may not extend beyond your house, your block or your neighborhood. One false step (or one malfunction of the GPS tracking device) will bring cops to your front door, your workplace, or wherever they find you and snatch you right back to jail.

Who benefits from this? Private corporations. According to a report released last month by the Center for Media Justice, four large corporations — including the GEO Group, one of the largest private prison companies — have most of the private contracts to provide electronic monitoring for people on parole in some 30 states, giving them a combined annual revenue of more than $200 million just for e-monitoring.Companies that earned millions on contracts to run or serve prisons have, in an era of prison restructuring, begun to shift their business model to add electronic surveillance and monitoring of the same population. Even if old-fashioned prisons fade away, the profit margins of these companies will widen so long as growing numbers of people find themselves subject to perpetual criminalization, surveillance, monitoring and control.

Who loses? Nearly everyone. A recent analysis by a Brookings Institution fellow found that “efforts to reduce recidivism through intensive supervision are not working.” Reducing the requirements and burdens of community supervision, so that people can more easily hold jobs, care for children and escape the stigma of criminality “would be a good first step toward breaking the vicious incarceration cycle,” the report said.

Many reformers rightly point out that an ankle bracelet is preferable to a prison cell. Yet I find it difficult to call this progress. As I see it, digital prisons are to mass incarceration what Jim Crow was to slavery.

If you asked slaves if they would rather live with their families and raise their own children, albeit subject to “whites only signs,” legal discrimination and Jim Crow segregation, they’d almost certainly say: I’ll take Jim Crow. By the same token, if you ask prisoners whether they’d rather live with their families and raise their children, albeit with nearly constant digital surveillance and monitoring, they’d almost certainly say: I’ll take the electronic monitor. I would too. But hopefully we can now see that Jim Crow was a less restrictive form of racial and social control, not a real alternative to racial caste systems. Similarly, if the goal is to end mass incarceration and mass criminalization, digital prisons are not an answer. They’re just another way of posing the question.

Some insist that e-carceration is “a step in the right direction.” But where are we going with this? A growing number of scholars and activists predict that “e-gentrification” is where we’re headed as entire communities become trapped in digital prisons that keep them locked out of neighborhoods where jobs and opportunity can be found.

If that scenario sounds far-fetched, keep in mind that mass incarceration itself was unimaginable just 40 years ago and that it was born partly out of well-intentioned reforms — chief among them mandatory sentencing laws that liberal proponents predicted would reduce racial disparities in sentencing. While those laws may have looked good on paper, they were passed within a political climate that was overwhelmingly hostile and punitive toward poor people and people of color, resulting in a prison-building boom, an increase in racial and class disparities in sentencing, and a quintupling of the incarcerated population.

Fortunately, a growing number of advocates are organizing to ensure that important reforms, such as ending cash bail, are not replaced with systems that view poor people and people of color as little more than commodities to be bought, sold, evaluated and managed for profit. In July, more than 100 civil rights, faith, labor, legal and data science groups released a shared statement of concerns regarding the use of pretrial risk assessment instruments; numerous bail reform groups, such as Chicago Community Bond Fund, actively oppose the expansion of e-carceration.

If our goal is not a better system of mass criminalization, but instead the creation of safe, caring, thriving communities, then we ought to be heavily investing in quality schools, job creation, drug treatment and mental health care in the least advantaged communities rather than pouring billions into their high-tech management and control. Fifty years ago, the Rev. Dr. Martin Luther King Jr. warned that “when machines and computers, profit motives and property rights are considered more important than people, the giant triplets of racism, extreme materialism and militarism are incapable of being conquered.” We failed to heed his warning back then. Will we make a different choice today?

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Beschloss: Examining presidential shortcomings 100 years later

Michael Beschloss, a presidential historian, is the author of the new book “Presidents of War” and wrote this op-ed for the Washington Post.

On the Nov. 11 100th anniversary of the Allied victory in World War I, I’m celebrating the heroism of American warriors in Europe. Perhaps 116,000 of them died in that struggle. Their commander in chief, Woodrow Wilson, did not match the quality of their service. During the conflict, Wilson made serious mistakes as a political leader that should never be forgotten.

Wilson’s missteps in wartime were hardly his only defects. His most disgraceful flaw was his racism. Given his high-flown rhetoric as a professor about elevating humankind, Wilson especially stood out in his white supremacy. He was not a man of his time but a throwback. His two predecessors, Theodore Roosevelt and William Howard Taft, had looked far kindlier on African Americans and their rights.

In 1916, Wilson, a Democrat, narrowly won reelection, campaigning under false pretenses with the slogan “He Kept Us Out of War.” Privately, however, he knew it was quite possible that he would take the nation into the European struggle soon after starting his second term.

As an academic, Wilson had emphasized the need for presidents to explain military setbacks and other complex or mystifying events to Americans. Yet he spent much of 1917, the first year of U.S. engagement in the war, in kingly isolation, rarely using his luminous oratorical gifts to explain to his countrymen why they needed to make severe sacrifices for a conflict that wasn’t an obvious, direct threat to America’s national security.

Wilson, who preened as a civil libertarian, persuaded Congress to pass the Espionage Act, giving him extraordinary power to retaliate against Americans who opposed him and his wartime behavior. That same law today enables presidents to harass their political adversaries. Wilson’s Justice Department also convicted almost a thousand people for using “disloyal, profane, scurrilous or abusive language” against the government, the military or the flag. Wilson is an excellent example of how presidents can exploit wars to increase authoritarian power and restrict freedom, some arguing that criticizing the commander in chief amounts to criticizing soldiers in the field.

In the 1918 midterms, with the Great War heading to its climax, Wilson shamelessly exploited the military struggle for domestic politics, urging voters to support his party “for the sake of the nation itself” because Republicans were trying to take “the conduct of the war out of my hands.” This cheap maneuver backfired. Roosevelt and Taft charged that Wilson was asking for “unlimited control over the settlement of a peace that will affect them for a century.” Partly out of disgust with Wilson’s presumptuousness, voters switched controlof both the House and Senate to the Republicans.

I admire Wilson’s insistence on ending the war with a League of Nations to ensure that such a conflict never happened again, but his plan to achieve it was clumsy political malpractice. He knew the Republican majority in Congress and many other Americans would be troubled by the possibility that if the Senate endorsed U.S. entry into the League of Nations, the new peace organization might have the right to call American troops into battle. Wilson should have immediately made it his central mission to assuage those fears, but he instead decamped to the Paris peace conference for months — certain, in his vanity, that no mere professional diplomat could match his negotiating skills. The domestic debate over the League of Nations was left to its loudest opponents, such as Henry Cabot Lodge, chairman of the Senate Foreign Relations Committee. By the time Wilson returned in the summer of 1919, fatal damage had been done.

Wilson’s famous failure to persuade Americans to accept his cherished league (he poignantly suffered a strokewhile campaigning for it) had gargantuan consequences. It doomed the League of Nations’ potential to keep the world out of an even more ruinous war, decades later, as Adolf Hitler expanded his brutal reach in Europe and Japan fell under the spell of a militant, imperial regime.

In the late 1930s, when Franklin D. Roosevelt tried to awaken Americans to the possibility that they might have to fight to save the world from tyranny, perhaps his biggest obstacle was the bitter public memory of Wilson and World War I. Laboring under the millstone of the then widely detested 28th president, FDR managed to rearm the United States only in the nick of time.

One can admire Wilson for his progressive reforms, for his idealism and eloquence about America’s role in the world, as I do, without sugarcoating his displays of political incompetence as a president of war. In wartime, Americans have a right to expect that the bravery of U.S. troops is matched by brilliant political leadership in the White House. Too often in the past, World War I anniversaries have been transformed into paeans to Woodrow Wilson. This time, let’s keep it focused on the troops.

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GateHouse: Criminal justice reform big winner on election day

Matthew T. Mangino

GateHouse Media

November 9, 2018

Setting aside the bluster of soon-to-be House Speaker Nancy Pelosi and President Donald Trump, the big winner on election night was criminal justice reform. Ballot initiatives focused on softening the impact of crime and punishment were successful in blue states and red states.

In Florida, voters approved Amendment 4, a measure that restores voting rights for people who have completed their sentences after being convicted of a felony, excluding those convicted of murder or certain sex offenses.

According to Vox, the Sentencing Project, a non-profit advocacy group, estimated that nearly 1.5 million people in Florida could not vote in the midterm elections because of a conviction — about 9.2 percent of the state’s voting age population.

Could those potential voters have had an impact on the very competitive Governor and U.S. Senate races in Florida?

Marijuana advocates scored a number of substantial ballot victories including Michigan, which became the 10th state in the nation to approve recreational use of marijuana.

“Michigan will be the first state in the Midwest to end marijuana prohibition and replace it with a system in which marijuana is regulated for adult use,” Marijuana Policy Project deputy director Matthew Schweich, told the Washington Post.

With the addition of Michigan, nearly 80 million Americans — 25 percent of the total U.S. population — live in a state or jurisdiction that has legalized recreational marijuana. Medical marijuana was also approved by voters in Missouri and Utah.

Not all news was good for marijuana advocates. North Dakota voters overwhelmingly rejected an initiative that would have legalized marijuana without setting any possession limits or regulatory structure.

In Ohio, voters rejected an initiative that would have lessened the severity of some drug offenses.

Ohio prosecutors, judges, coroners and even Gov. John Kasich urged a “no” vote on the proposal, which would have reduced certain drug possession charges to misdemeanors. According to the Cincinnati Enquirer, the measure failed by a margin of nearly two-to-one.

An initiative in Washington will make it less difficult for prosecutors to pursue police officers who unlawfully use deadly force. Approval of Initiative 940 means that prosecutors will no longer have to prove law enforcement officers acted with “evil intent” or “malice” when considering whether to file criminal charges such as manslaughter. According to the Seattle Times, Washington was the only state with such restrictive language.

Abraham Lincoln once said “The ballot is stronger than the bullet.” Colorado wasn’t on Lincoln’s mind when he said that, but on election day — more than 150 years after the ratification of the 13th Amendment — Colorado voters officially abolished slavery.

Colorado is one of more than a dozen states whose Constitutions allow involuntary servitude as a form of criminal punishment. Colorado will no longer permit prisoners to do slave labor, reported The Associated Press.

A constitutional amendment to end non-unanimous jury verdicts in Louisiana was approved by the state’s voters. Louisiana and Oregon were the only states that permitted a less than unanimous verdict in a criminal trial.

The less-than-unanimous verdict was rooted in the state’s ardent racism that intensified after the Civil War and during the Jim Crow era.

The amendment was pushed through the Louisiana Legislature with strong support from groups that rarely collaborate. On the right, supporters included the Christian conservative, Louisiana Family Forum, and the Koch Brother’s political organization, Americans for Prosperity. On the left, supporters included the American Civil Liberties Union and Innocence Project New Orleans.

Voters in Florida, Georgia, Kentucky, Nevada, North Carolina and Oklahoma approved a ballot measure known as Marsy’s Law — the so-called crime victim’s bill of rights.

Marsy’s Law aims to ensure that victims and their family members are informed about all criminal proceedings, present and heard, and protected from the accused.

Finally, in the wake of the GOP’s election day loss of the House — a notable casualty surfaced in the criminal justice system — President Trump asked his embattled Attorney General Jeff Sessions to resign. He agreed, and so begins a new chapter in the tumultuous investigation of Russia, the president, the White House and the president’s advisors.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Delaware to send high-security inmates to Pennsylvania

Hundreds of inmates from Delaware’s maximum-security prison, the site of a deadly inmate uprising last year, will be transferred to Pennsylvania in an effort to reduce overtime for severely understaffed correctional officers, reported The Associated Press.

The head of the union representing Delaware correctional officers criticized the move, saying the department needs to commit to improving compensation and recruitment and retention of prison guards.

Department of Correction officials said they have entered into a two-year agreement with the Pennsylvania Department of Corrections to accept up to 330 inmates from the James T. Vaughn Correctional Center in Smyrna. The agreement calls for Delaware to pay Pennsylvania $123 per inmate, per day, to house offenders who were sentenced in Delaware. DOC officials said the move would result in a savings of $8 per inmate, per day.

“Reducing mandatory overtime will provide relief for Delaware’s correctional officers, and help make our facilities safer for officers and inmates,” DOC Commissioner Perry Phelps said in a prepared statement.

Geoff Klopp, head of the Correctional Officers Association of Delaware, characterized the move as a half-measure.

“This is just another Band-Aid on the situation,” Klopp said. “It’s a temporary fix. Until we’re able to hire and retain correctional officers, we’re going to continue to have issues when it comes to safety and security in the facilities.”

All of the inmates selected for transfers will have more than five years remaining on their sentences and will return to Delaware to complete their sentences when the correctional officer vacancy rate is projected to be “significantly lower.”

There are currently 237 vacancies statewide, according to prison officials. They did not specify what would constitute a “significantly lower” number.

The vacancy rate remains stubbornly high despite efforts taken after the February 2017 riot to boost correctional officer salaries and offer recruitment and signing bonuses. DOC officials say they have hired 130 cadets since the salary increase became effective in July.

A review ordered by Democratic Gov. John Carney after the riot found that the dismissal by DOC officials of warnings about trouble brewing was indicative of an overcrowded, understaffed facility plagued by mismanagement, poor communication, a culture of negativity, and adversarial relationships among prison staff, administrators and inmates.

“For years, excessive mandated overtime and fatigue ... inconsistent management ... the lack of communication, adversarial relationships, and a general lack of respect at all levels ... have contributed to poor correctional officer morale and increasing hostility between inmates and correctional officers,” the review stated.

Carney noted that reducing mandatory overtime was among the report’s key recommendations.

“We have heard loud and clear that the high levels of mandatory overtime in Delaware’s prisons creates hardships for correctional officers and real security concerns inside our correctional facilities,” he said in a prepared statement.

Wednesday’s announcement comes amid the ongoing trial for three of the 18 inmates indicted on criminal charges after the riot. It also follows the filing of a class-action lawsuit last week on behalf of scores of inmates at the prison. The lawsuit alleges that they were subjected to inhumane conditions and physical and verbal abuse by guards both before and after the riot.

Sixteen inmates were charged with murder, kidnapping and other crimes following the riot, during which prison guard Steven Floyd was killed and three other staffers taken hostage. Two other inmates, including one who pleaded guilty to riot and is testifying for prosecutors, were not charged with murder. The defendants are scheduled to be tried in groups over the next several months.

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Fox News: Trump's appointment of acting AG may be illegal

President Donald Trump’s appointment of Matthew Whitaker as Acting Attorney General may be illegal, Andrew Napolitano, senior judicial analyst for Fox News, reported the Huffington Post. 

“Under the law, the person running the Department of Justice must have been approved by the United States Senate for some previous position. Even on an interim post,” Napolitano told Fox News’ Dana Perino. 

Former Attorney General Jeff Sessions was dismissed on Wednesday and Napolitano said his interim replacement should have been Deputy Attorney General Rod Rosenstein. 

While Whitaker was confirmed by the Senate in 2004 when he was appointed U.S. Attorney for the Southern District of Iowa, Napolitano said that he was nevertheless ineligible to serve in his current post as the confirmation was not “for a leadership position in the Justice Department.”

“Who has been confirmed and who’s next in line? Deputy Attorney General Rosenstein,” Napolitano added. 

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Justice Kavanaugh may be swing vote in death penalty case

Conservative new U.S. Supreme Court Justice Brett Kavanaugh joined liberal colleagues in raising concerns about Missouri’s plan to use lethal injection to execute a murderer with a rare medical condition, reported Reuters.

Lawyers for Russell Bucklew, 50, have argued that because of a congenital condition called cavernous hemangioma that leaves him with blood-filled tumours on his body, the lethal injection could cause undue agony in violation of the U.S. Constitution’s prohibition on cruel and unusual punishment.

Based on the one-hour oral argument, it is not clear how the court will rule in Bucklew’s case but Kavanaugh’s comments in his first death penalty-related oral argument since joining the court last month suggest he could potentially break with fellow conservatives.

If he joins the court’s four liberals, the court could issue a narrow decision sending the case back to lower courts to determine whether the state can accommodate Bucklew’s medical issues.

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Mangino on the Law and Crime Network Daily Debrief

Watch my appearance on the Law and Crime Network Daily Debrief with Aaron Keller.
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