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Topics in Reentry: The Case Plan January 31, 2011

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Community corrections officers are relying increasingly on case plans to provide supervisees with a structured approach to complete central reentry objectives. This Q&A with the American Probation and Parole Association’s Matthew DeMichele, Ph.D., explores this emerging trend.

For more on case planning in reentry, tune in to the upcoming NRRC webinar on the topic on February 2.

Q: What is a case plan?

A: The case plan is a guide that provides supervisees with clear, direct, short-term goals to encourage accountability and long-term behavioral change. By outlining the action steps necessary to get the supervisee to reach specified targets for change, the case plans provides clear expectations while also helping to shape the interaction between officers and those being supervised.

Q: What’s the purpose of the case plan?

A: They are meant to prepare and inform individuals about the community supervision process by delineating employment, educational, treatment, and housing requirements to reduce recidivism risks. Case plans elaborate on the conditions of supervision by enumerating specific actions that the individual should take and spelling out sanctions and incentives to motivate good behavior. They should be direct, uncomplicated, simple in format, and explicit in what is expected of individuals under supervision.

Q: Who is involved in designing the case plan?

A: Case plans are often designed by community corrections officers and the individuals on supervision according to risk and needs assessments. Treatment providers, employment specialists, mentors, and others may also be involved. The case plan not only documents the action steps for the supervisee, but it outlines the tasks and activities for each member of the case management team.

Q: What should be included in the case plan?

A: Case plans must detail the types of behavior that are expected of the individual, and should provide supervisees with clear guidelines for appropriate behavior. The case plan should also describe what will happen if an individual successfully completes parts of the plan and the consequences if tasks are not completed. Furthermore, they are meant to be dynamic instruments; as supervisees reach measurable goals upon defined dates, the officer may adjust the next goal for the supervisee.

Q: How does a case plan help an individual change his or her behavior?

A: The case plan enumerates long-term goals as well as the short-term steps needed to get there. For example, many released individuals have deficiencies in basic social skills needed to remain employed or secure housing. The long-term goal of completing a GED may be difficult if one has not learned dependability, delayed gratification, and patience. The case plan may specify short-term goals towards reaching these targets, including completing community supervision, working 20 hours per week, remaining drug/alcohol free, and doing weekly homework.

Q: Is case planning effective?

A: Research has found that case plans and case managers have a positive impact. Individuals who had more interaction with a case manager were more likely to remain in full-time employment for a longer duration compared to individuals who had not interacted with a case manager (Rossman and Roman, 2003). Individuals with case managers were more likely to enroll in drug treatment and found to commit fewer crimes than similar offenders who had not received referrals for substance abuse treatment (Rhodes and Gross, 1997).


Budget Proposal May Recommend Increasing Annual Good Time Credits January 28, 2011

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For years FAMM has fought in the courts and in Congress to increase the “good time” credit given to federal prisoners each year. Now we hear that President Obama’s budget proposal may recommend increasing annual good time credits from 47 to 54 days as we have urged!  A new Wall Street Journal article on federal budget cuts mentioned the reform as one of a number of budget cutting ideas being considered.
The Wall Street Journal article says the good time fix could result in the release of 4,000 people right away, which would be fantastic but is merely a rumor at this point.  Of course, if the proposal to increase good time credit is included in the President’s budget proposal we will fight like crazy to insure that it is enacted and made retroactive.

But let’s not put the cart before the horse.  First, it’s just a possible proposal, which may turn into a bill, which may make it through Congress, which may allow for retroactive application.  And, all of this will take time.  But it’s exciting because, if it’s true, it’s the first time the President will have asked for an increase to good time!


FAMM Applauds Gov. Patrick for Recommending Repeal of Mandatory Minimums for Drug Offenses January 27, 2011

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On Wednesday, Gov. Deval Patrick announced a ground-breaking criminal justice reform package that includes the repeal of mandatory minimum sentences for nonviolent drug offenses.  The Governor’s bill would also allow nonviolent drug offenders to become eligible for parole, work release and earned “good conduct” credits, as are most other prisoners.  Gov. Patrick’s bill reflects the national trend toward evidence-based drug sentencing policies that better protect public safety while costing taxpayers less.

Families Against Mandatory Minimums (FAMM) applauds Gov. Patrick’s leadership on sentencing reform.  Barbara J. Dougan, director of FAMM’s Massachusetts project, issued the following statement in response to today’s bill:

“This is a bold move by the Governor, but at the same time, it’s just basic common sense.   The Governor’s bill would simply re-align our current drug sentencing policies so that they are in sync with what we know about who is being sentenced to mandatory prison terms and what those people need to stay out of trouble when they leave prison.   Nearly two-thirds of those  sentenced to mandatory prison terms fall into the two lowest level ”criminal history” groups – no prior record or few lower level offenses.   Yet too often they serve disproportionately harsh sentences, sometimes longer than those who commit violent crimes.  As a result, the public pays for lengthier sentences than are warranted.”

“Additionally,” Dougan explained, “drug offenders often serve their sentences under more restrictive conditions than other prisoners, conditions that actually increase recidivism and undermine public safety.  The Governor is to be commended for proposing policies that will actually do some good – for public safety and taxpayers – rather than just sounding good.”

Governor Patrick’s proposal would repeal mandatory minimum sentences for drug crimes that don’t involve guns or children, allow certain nonviolent drug offenders serving mandatory minimums in state prison to be eligible for parole after serving half their maximum sentence and allow drug offenders to be eligible for work release and earned “good conduct” credits.  “Drug offenders with legitimate work skills are more likely to earn an honest living upon release from prison,” said Dougan.  “There has never been a sound policy reason for forcing them to remain idle during their time behind bars.”

The bill would also reduce drug-free “school zones” from 1,000 feet of a school to 100 feet, the same as for parks and playgrounds.  As a result, the school zone law, which currently carries a two to 15 years sentence, will fulfill its original intent to protect children.  As it is current written and enforced, it serves mainly to add a second penalty for those who lives in urban areas.

In addition to Gov. Patrick’s proposal, other sentencing reform bills were recently filed.  Last week, Sen. Steven Tolman and Rep. Benjamin Swan filed bills to repeal mandatory minimums for drug offenses and to reform the school zone law, bills drafted by FAMM.   Sen. Cynthia Creem, a long-time proponent of drug sentencing reform, also filed bills.

Families Against Mandatory Minimums (FAMM), is a national nonpartisan, nonprofit organization that works to insure that the punishment fits the crime.  In 2008, FAMM launched a project in Massachusetts to reform state mandatory minimum sentencing laws for drug and school zone offenses.

To read profiles on people serving mandatory minimum sentences in Massachusetts, or for more information on FAMM, click here.


Why Can Misdemeanor Sentences be Worse than Felony Sentences? January 18, 2011

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Why doesn’t a one-year sentence for a misdemeanor violate Oregon’s proportionality clause, Or Const, Art I, sec 16? The general rule is that a sentence for a lesser crime is disproportionate if longer than the worst possible sentence for some greater crime. See e.g., Cannon v. Gladden, 203 Or 629, 281 P2d 233 (1955). Felonies of crime-seriousness (“CS”) 1 and no departure factors cannot lead to a worse sentence than 30 days in jail and 18 months of probation. Class A misdemeanors can lead to sentences of a year in jail, or six months in jail and five years of probation, both of which are worse.

There are two possible defenses of the one-year misdemeanor sentence. First, the petty felony could be the subject of an upward departure, in which case the worst possible sentence is worse than the worst possible misdemeanor sentence. Second, Oregon’s sentencing scheme might constitute a decision by the legislature that some misdemeanors are actually worse than some felonies.

The second argument, that misdemeanors are actually the worse offenses, is easier to refute. In State v. Ferman-Velasco, 157 Or App 415, 971 P2d 897 (1998), the court rejected an argument that a 75-month Measure 11 mandatory minimum for a Class B felony was disproportionate because it was longer than the sentences for some Class A felonies. The court held that Measure 11 had superseded the Class B/Class A distinction. In other words, Measure 11 provides that the crimes with Measure 11 minima are actually worse than crimes carrying shorter sentences regardless of whether those crimes are Class B or Class A.

That doesn’t apply in the case of misdemeanors and felonies. Misdemeanor sentences can be worse than felony sentences only because 1) felonies, but not misdemeanors, have a lengthy set of rules governing sentencing, and 2) the US Supremes threw a big wrench into Oregon’s (and everyone else’s) felony sentencing schemes when they decided Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000) and its progeny, adding jury trial rights to the sentencing rules. There is no Oregon law providing that misdemeanors are more serious than felonies, as there is a law (Measure 11) providing that Sexual Abuse I, a Class B felony, is actually worse than Burglary in the First degree, a Class A felony.

The remaining argument, that every felony carries at least a possibility of a worse sentence than the maximum for any misdemeanor, is more persuasive, but it is still wrong. Although any felony can, by departure, carry a longer sentence, the felony-plus-departure is a different, more serious crime. That doesn’t count.

Crimes are defined by elements. A crime with elements A, B, and C is a different, lesser crime than a crime with elements A, B, C, and D. The crime of Possession of a Controlled Substance has the elements of 1) possession of 2) a controlled substance. It carries a maximum penalty of 30 days in jail and 18 months of probation. By contrast, the crime of Aggravated Possession of a Controlled Substance has one or two additional facts. Any number of facts would qualify; some are listed in the Oregon Sentencing Guidelines, but some aggravating factors are not listed. Without two additional facts, for both a dispositional (probation to prison) and durational (six to twelve months in prison) departures, the CS 1 felony cannot carry a year of incarceration.

Suppose that the client got a year in jail for a Theft in the Second Degree, a Class A misdemeanor. You argue that he could not have gotten that long for Theft in the First Degree, a Class C felony. The state responds that he could have gotten that long for the Class A felony if he stole a million dollars, in which case the offense would be ranked at Crime Category 6 and the court could depart for harm greater than typical.

On the other hand, if a person committed Theft I of 800 dollars, the sentence could still be a year, if the court found multiple departure facts. Facts relating to the offense are pretty clearly elements (and thus would define the a new, greater crime), but facts relating to the offender are not elements under Oregon law. And the federal definition of elements might not help in trying to rely on the proportionality guarantee of the Oregon constitution.

So, in considering the greater offense in a proportionality argument, is it the least serious form of the offense (Theft I can be as low as CS 2) or the most serious form of the offense? Put that way, it should be the least serious form of the offense. The sentence for the lesser offense is disproportionate if _any_ more serious crime has a lesser sentence. And Theft I of less than $1,000, carries a much shorter sentence than the one-year maximum for a Class A misdemeanor. Theft I of a million dollars is a different crime than Theft I of $999.99; it has different elements and carries a different penalty. But the two crimes clearly have some similarity. As Ryan Scott pointed out a few months ago, Oregon cases are not very clear on what facts are elements and what are something else, and there aren’t many cases on proportionality at all. But State v. Shumway, 291 Or 153, 164, 630 P2d 796 (1981) is close to this issue. Shumway found a murder sentence with a 25-year minimum disproportionate to an aggravated murder minimum of 15 or 20 years. And, in analyzing the issue, the court was looking at sentencing statutes of differing applicability to different defendants. In other words, the statutory maximum, for purposes of proportionality analysis, incorporates sentencing provisions that do not apply in all cases.

So, does the possibility of a non-elemental departure fact (one about the defendant) change whether we use ordinary Theft I or aggravated Theft I for proportionality purposes? What if your defendant has no possible departure facts (unlikely if the court is contemplating giving a year sentence for a Class A misdemeanor, but who knows?) For proportionality purposes, do we look at the worst lawful sentence for this particular defendant, or for any defendant? The state certainly won’t allege or prove any aggravating factors in a misdemeanor prosecution. They’re only relevant to this unexpected sentencing argument in a misdemeanor sentencing,  and aggravating factors from the Oregon Sentencing Guidelines only apply to felonies. Justice Thomas Balmer of the Oregon Supreme Court has suggested that proportionality requires considering the offender’s personal characteristics. Some Thoughts on Proportionality, 87 Or Law Rev 783,  806-807 (citing cases for the proposition that some sentences, although proportionate for recidivists, might be disproportionate for first-time offenders). The most recent statement on this topic from the Oregon Supreme Court, State v. Rodriguez/Buck, 347 Ore 46, 217 P3d 659 (2009), expressly considered criminal history in determining proportionality.

So, under cases like Shumway and Rodriguez/Buck, both pure sentencing factors and defendant-specific factors are part of the proportionality analysis. And that makes sense, because the ultimate sentence, rather than just the guilt elements, establish the severity of the crime. The core of the argument is that unaggravated CS 1 felonies carry a month in jail and probation, but Class A misdemeanors can be a year in jail. That is obviously disproportionate, and it’s worth fighting about.


Wrongfully Convicted Man Freed After 18 Years January 16, 2011

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A man wrongfully convicted of a San Francisco double-murder is now free after spending 18 years in prison.

A judge ruled last month that the prosecution’s now-dead key witness against Caramad Conley lied on the stand.

The 40-year-old Conley walked out of the San Francisco County Jail a little after 4 p.m. Wednesday and told the San Francisco Chronicle he was taking life one day at a time.

Prosecutors told Superior Court Judge Cynthia Ming-Mei Lee on Tuesday that key witnesses are dead or unavailable and they will not retry Conley for the killings of Roshawn Johnson and Charles Hughes.


Kulongoski Grants Clemency To 15 January 14, 2011

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Before he left the governorship Monday, Ted Kulongoski pardoned 13 people and commuted the sentences of two others — both younger than age 18 when they committed their crimes — during his final two years in office.

According to a report Kulongoski filed with the Legislature, and made public this week, six of those pardons and one commutation came during his final three weeks in office.

Under the Oregon Constitution, a governor has nearly unlimited authority to issue pardons and commutations — except in cases of treason — but must report his actions to the Legislature every two years. Neither the Legislature nor the courts can reverse them. It’s similar to the president’s power under the U.S. Constitution.

A pardon erases a conviction; a commutation does not, although it suspends a sentence with specified conditions.

In the report, Kulongoski said he granted 13 of 162 requests for pardons and just two of 158 applications for commutations during the past two years. One other application is pending; presumably the decision will be up to Gov. John Kitzhaber, who succeeded Kulongoski on Monday.

At his final meeting with reporters as governor last week, Kulongoski talked about his process of considering clemency and about one specific case.

Although he did not name the individual during the news conference, Kulongoski said one man convicted of a robbery 38 years ago would have been forced out of his home of 22 years — or he and his wife would have had to shut down the adult foster care home they have operated for 16 years — without a pardon.

Since he was released on parole in 1979, Michael Owen McQueen attended community college, trained as a welder and has been employed by the same business for 26 years. His robbery conviction occurred before 1994, when voters approved mandatory minimum prison sentences for specified violent crimes under Measure 11.

The Department of Human Services used to have authority to issue waivers in such situations, based on the full circumstances and the age of the conviction. But a 2009 law disqualified McQueen from continuing to live in his home while he and his wife operate an adult foster-care home.



AG Holder Convenes Cabinet-Level Officials For Reentry Council January 9, 2011

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Demonstrating the Obama Administration’s commitment to addressing prisoner and jail reentry issues, Attorney General Eric Holder yesterday convened the inaugural meeting of the interagency Reentry Council.

Attending the Cabinet-level meeting were the secretaries of Labor, Education, Health and Human Services, Housing and Urban Development, Veterans Affairs, Agriculture, and the Interior; as well as the heads of the Office of National Drug Control Policy, the Social Security Administration, the Equal Employment Opportunity Commission, the White House Domestic Policy Council, and the Office of Faith-Based and Neighborhood Partnerships. The purpose of the interagency Reentry Council is to make communities safer, assist those returning from prison and jail in becoming productive, tax-paying citizens, and save taxpayer dollars by lowering the direct and collateral costs of incarceration.

“Corrections departments alone can’t respond to the complex needs of the massive numbers of people returning from prison and jail,” said Assemblyman Jeffrion Aubry, chair of the Council of State Governments Justice Center and assemblymember from New York. “The unprecedented establishment of a Cabinet-level council demonstrates the importance of bringing public safety, housing, education, and other social service agencies to the table. It models the collaboration that the bipartisan Second Chance Act encourages among state and local government organizations and their partners in the community that is essential to improve success rates of people returning from prison and jail to the community.”


Prison Reform: A Smart Way For States To Save Money and Lives January 8, 2011

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With nearly all 50 states facing budget deficits, it’s time to end business as usual in state capitols and for legislators to think and act with courage and creativity.

We urge conservative legislators to lead the way in addressing an issue often considered off-limits to reform: prisons. Several states have recently shown that they can save on costs without compromising public safety by intelligently reducing their prison populations.

We joined with other conservative leaders last month to announce the Right on Crime Campaign, a national movement urging states to make sensible and proven reforms to our criminal justice system – policies that will cut prison costs while keeping the public safe. Among the prominent signatories are Reagan administration attorney general Ed Meese, former drug czar Asa Hutchinson, David Keene of the American Conservative Union, John Dilulio of the University of Pennsylvania, Grover Norquist of Americans for Tax Reform and Richard Viguerie of ConservativeHQ.com. We all agree that we can keep the public safe while spending fewer tax dollars if we spend them more effectively.

The Right on Crime Campaign represents a seismic shift in the legislative landscape. And it opens the way for a common-sense left-right agreement on an issue that has kept the parties apart for decades.

There is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential. We spent $68 billion in 2010 on corrections – 300 percent more than 25 years ago. The prison population is growing 13 times faster than the general population. These facts should trouble every American.

Our prisons might be worth the current cost if the recidivism rate were not so high, but, according to the Bureau of Justice Statistics, half of the prisoners released this year are expected to be back in prison within three years. If our prison policies are failing half of the time, and we know that there are more humane, effective alternatives, it is time to fundamentally rethink how we treat and rehabilitate our prisoners.

We can no longer afford business as usual with prisons. The criminal justice system is broken, and conservatives must lead the way in fixing it.

Several states have shown that it is possible to cut costs while keeping the public safe. Consider events in Texas, which is known to be tough on crime. Conservative Republicans joined with Democrats in adopting incentive-based funding to strengthen the state’s probation system in 2005. Then in 2007, they decided against building more prisons and instead opted to enhance proven community corrections approaches such as drug courts. The reforms are forecast to save $2 billion in prison costs over five years.

The Lone Star State has already redirected much of the money saved into community treatment for the mentally ill and low-level drug addicts. Not only have these reforms reduced Texas’s prison population – helping to close the state budget gap – but for the first time there is no waiting list for drug treatment in the state. And crime has dropped 10 percent from 2004, the year before the reforms, through 2009, according to the latest figures available, reaching its lowest annual rate since 1973.

Last year we both endorsed corrections reforms in South Carolina that will reserve costly prison beds for dangerous criminals while punishing low-risk offenders through lower-cost community supervision. The legislation was a bipartisan effort with strong support from liberals, conservatives, law enforcement, the judges and reform advocates. The state is expected to save $175 million in prison construction this year and $60 million in operating costs over the next several years.

Some people attribute the nation’s recent drop in crime to more people being locked up. But the facts show otherwise. While crime fell in nearly every state over the past seven years, some of those with the largest reductions in crime have also lowered their prison population. Compare Florida and New York. Over the past seven years, Florida’s incarceration rate has increased 16 percent, while New York’s decreased 16 percent. Yet the crime rate in New York has fallen twice as much as Florida’s. Put another way, although New York spent less on its prisons, it delivered better public safety.

Americans need to know that we can reform our prison systems to cost less and keep the public safe. We hope conservative leaders across the country will join with us in getting it right on crime.


Technology Careers Training Webinar January 7, 2011

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On Tuesday, January 4, 2011, the Bureau of Justice Assistance (BJA), U.S. Department of Justice, released the solicitation for the Second Chance Act Technology Careers Training Demonstration Projects for Incarcerated Adults and Juveniles. States, units of local government, territories, and “federally recognized Indian tribes” are encouraged to apply for funds that can be used to establish programs to train individuals in prisons, jails, or juvenile residential facilities for technology-based jobs and careers during the three-year period before their release. The deadline for applications is March 3, 2011.

To help potential applicants respond to this solicitation, the National Reentry Resource Center will hold a free webinar on January 19, 2011, at 2:00 p.m. ET. Representatives from BJA will participate in the webinar, explaining the details of the solicitation and answering questions from applicants.

To register for the webinar, click here.

To download this solicitation, click here.

To download the Frequently Asked Questions document about this solicitation, click here.


Offender Mentoring Tops Legislative Requests January 6, 2011

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The bulk of those being released into Washington County after prison or jail do not have the social connections needed to help them avoid the types of people and behaviors that got them incarcerated in the first place.

In 2011, Washington County lobbyists will be asking its federal legislators for $300,000 in federal earmark funding to allow the county to continue to employ five re-entry mentors to work with as many as 325 of these paroled and released individuals.

About 480 people are paroled to live in Washington County each year, and another 250 serving sentences of less than 12 months are released back into the community.

Since 2001, the county contracts with several agencies to staff the Recovery Mentor Program, which helps take residents through the steps of rejoining the community — finding jobs and housing, maintaining healthy relationships and fulfilling ongoing commitments.

The Oregon Department of Corrections estimates the annual cost of incarcerating one prisoner at about $30,828, not including the cost of the crime, the law enforcement officers, jail and court costs.

The annual cost of mentoring one individual in Washington County is about $882, said Community Corrections Center Manager Karleigh Mollahan. Supported by an annual budget of $15 million and staffed by 106 full-time-equivalent positions, Community Corrections is responsible for providing probation, parole, post-prison supervision and residential services to the adult offender population.

Evidence suggests mentoring provides the stable environment that can lead to the long-term self-sufficiency needed to adjust to life on the outside, officials say.

Mentors meet with inmates prior to their release and assist parole and probation officers in the development of a re-entry plan that includes identifying stable housing. The federal funding could extend the duration of this successful program for two years to allow better assessment of the program’s success rate.

To facilitate real change, Washington County corrections officials say that once released, many justice-involved persons do not have the positive support needed to avoid unhealthy behavior patterns they had prior to incarceration.

With the help of mentors, they can avoid the pitfalls that lead to parole violations, returning to society clean and sober with a renewed sense of optimism about their future.

Many offenders eventually find themselves in the transitional drug and alcohol treatment programs at the Community Corrections Center in Hillsboro.

Often, the mentors are people who have had drug and alcohol problems themselves, and have been in the criminal justice system as a result. To be hired, they must have two years of sobriety, and receive ongoing professional and ethical training.

Following the release of the offender, mentors continue to monitor their progress until they have a sponsor and a place to live, a well-established support group, friends in recovery and a treatment program. This final phase lasts about three or four months.

Of 283 offenders in the Recovery Mentor Program in 2008, about 90 percent are now in stable housing, employed, financially self-supporting and attending continuing support groups and required treatment.

Other in-house programs include mental health services, wellness and nutrition, and life skills training for employment, parenting, computer literacy and fellowship.