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Our firm has handled a number of child pornography cases, especially within the past few years as the FBI and the U.S. Attorney’s Office for the District of Connecticut have made these cases a high priority.  In every one of these cases, the U.S. Attorney’s Office has a standard practice of sending out notices to the victims who have been identified as being in the pictures and videos possessed by the defendant.  This can result in the victim filing a claim for full restitution from the defendant – sometimes seeking hundreds of thousands of dollars.   One of the challenges of these cases is that the victim frequently argues that the defendant must pay the full amount of the losses, even where the evidence shows that the defendant did not know or have any direct contact with the victim, and even where the defendant may have been only one of thousands of anonymous possessors of the images available for download from the Internet.

In Paroline v. United States, No. 12-8561, the U.S. Supreme Court finally addressed the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim in this type of a situation.  In a 5-4 decision, the Court rejected the victim’s claim that each defendant is responsible for all of the victim’s claimed losses.  Instead, in the majority opinion written by Justice Kennedy, the Court held that the sentencing court must engage in a flexible, apportionment-type analysis:

Where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses….The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child pornography crimes, even simple possession, affect real victims.

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As I’ve previously written, not long after publicly acknowledging in 2008 that it was, for the first time, “unable to meet its mandate to provide treatment for all inmates who volunteer for and are qualified for treatment before they are released from the Bureau of Prison,” the BOP eliminated RDAPs for Spanish-speaking prisoners. Yesterday, I learned that the Bureau recently restored RDAP for Spanish only speakers. As reflected in the list of 2014 RDAP sites, Spanish-speaking RDAP is now available at FCI Miami (FL) and FMC Carswell (TX).

*HT to Marcos Hasburn

 

 

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Graduation season is approaching, which means a lot of young people will be receiving copies of Dr. Seuss’s Oh, the Places You’ll Go! While flying to Terre Haute earlier this week, I starting thinking about the prisons and jails to which I’ve gone over the years and decided to make a list—list making being fundamental to the Internet. Below is an admittedly incomplete rundown. Suffice it to say that neither when graduating high school or college did the idea of frequent trips to prisons and jails cross my mind. And, it was not until years later, upon discovering that my birth mother read Dietrich Bonhoeffer’s Letters & Papers from Prison throughout her pregnancy, that a career of working for and on behalf of the accused and prisoners began to seem more than mere happenstance.

• Alexandria Detention Center (VA)

• Albany County Correctional Facility (NY)

• Allenwood FCI (PA)

• Arlington County Detention Facility (VA)

• Atlanta USP (GA) Continue reading

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On Monday, via a video message posted on the Department of Justice’s Web site, Attorney General Holder announced changes to the Bureau of Prisons’ halfway house practices. As set forth in the accompanying press release:

Among the most significant changes Holder announced is the requirement for standardized Cognitive Behavioral Programming (CBP) to be offered at all federal halfway houses. This treatment will address behavior that places formerly incarcerated individuals at higher risk of recidivism. As part of this treatment requirement, BOP is setting guidelines for instructor qualifications, class size and length, and training for all staff at the halfway houses.

Several other modifications are being made to the standard contracts that apply to federal halfway houses in order to provide greater support to returning citizens. Examples include requiring halfway houses to provide public transportation vouchers or transportation assistance to help residents secure employment, requiring all federal halfway houses to allow residents to have cell phones to facilitate communication with potential employers and family, and improving and expanding home confinement by increasing the use of GPS monitoring.

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This week, Sasha Volokh at The Volokh Conspiracy is blogging “about The Modest Effect of Minneci v. Pollard on Inmate Litigants,” his “keynote article in a[n Akron Law Review] symposium called Inside America’s Criminal Justice System: The Supreme Court on the Rights of the Accused and the Incarcerated.”

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This past Sunday’s New York Times featured a profile of the Cook County Jail (IL), “[t]he largest mental health center in America.” Writing separately, Nicholas Kristof offered “[a] few data snapshots:

• Nationwide in America, more than three times as many mentally ill people are housed in prisons and jails as in hospitals, according to a 2010 study by the National Sheriffs’ Association and the Treatment Advocacy Center.

• Mentally ill inmates are often preyed upon while incarcerated, or disciplined because of trouble following rules. They are much more likely than other prisoners, for example, to be injured in a fight in jail, the Justice Department says.

• Some 40 percent of people with serious mental illnesses have been arrested at some point in their lives.

Against this backdrop comes another compelling story from Andrew Cohen, writing for The Atlantic. Cohen gives insight into the “High Security Mental Health Step-Down Unit” at USP Atlanta, “believed to be the first federal prison program ever designed and implemented to provide substantial long-term care and treatment for high-security mentally ill inmates.”

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Last August, the FCC announced new rules aimed at reducing the cost of long-distance calls for prisoners. As Sam Gustin writes for Time, the rules went into effect this week:

The new rate caps, which were passed by the agency last fall under the leadership of acting FCC Chair Mignon Clyburn, impose a limit of 21 cents per minute for debit or pre-paid calls and 25 cents per minute for collect calls. At those levels, the cost of a 15-minute call would be reduced by as much 80% to $3.15.

The article explores both sides of the policy debate:

“This is a huge victory for justice for ordinary people at an agency that is usually more attuned to private interests,” says Cheryl A. Leanza, policy director at the United Church of Christ, which has long advocated prison phone reform. “Increasing the connections between families and inmates helps all of us. Strong family connections improve the likelihood that when inmates are released, they will not become repeat offenders, and that makes our society safer. We are very grateful to Commissioner Clyburn.” […]

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Yesterday, I received an e-mail notice regarding “Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences,” the Senate Judiciary Committee’s second hearing concerning the use of solitary confinement.  (Information regarding the last hearing can be found here.). The hearing, to be chaired by Senator Dick Durbin (D-IL), will be held on February 25, 2014 at 2:30 pm (ET) in the Dirksen Senate Office Building Room 226. From the e-mail:

In recent years, the United States has witnessed an explosion in the use of solitary confinement – also known as segregation or isolation – for federal, state, and local prisoners and detainees. The United States now holds far more prisoners in solitary than any other democratic nation. In June 2012, Senator Durbin chaired the first-ever Congressional hearing on solitary confinement. The hearing featured expert testimony on promising reform efforts that have reduced the use of solitary confinement, while also lowering prison violence and recidivism rates, and saving millions of dollars. This follow-up hearing will explore developments since the 2012 hearing, and what more should be done to curb the overuse of solitary confinement while controlling costs, protecting human rights, and improving public safety.

This hearing is open to the public. Advocates and interested members of the community are encouraged to attend. A large audience filling both the hearing room and overflow room is critical to showing interest in reforming solitary confinement policies and practices. Please RSVP by 5:00 p.m. on Friday, February 21, 2014.

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Nothwithstanding decades long growth of the prison industrial complex, it seemed we reached a cultural nadir last year when it was announced that Florida Atlantic University intended to name its football stadium after The GEO Group, a private prison corporation, in return for a $6 million “gift” to the university’s athletic department. (Inasmuch as FAU’s team is The Owls, people soon began calling the stadium Owlcatraz.).

The news was rightly met with widespread backlash and protests, and The GEO Group withdrew the gift (apparently unwilling to honor the donation and forego the stadium naming rights). Now comes word that UK-based gaming company Introversion Software plans to soon release a full version of Prison Architect, a sim-style game where players design and manage penitentiaries.

In a guest editorial on Kotaku, Paolo Pedercini offers a thoughtful critique of the game, including the many moral and ethical issues it raises as well as the hypothetical benefits it may produce. Still-and-all, there is something fundamentally untoward about a “game” premised on a process that dehumanizes and disenfranchises untold millions. It is sad but telling that more than 300,000 pre-order versions of the game have already been sold (for $10 million).

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Yesterday, the Urban Institute issued “Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost of the Federal Prison System,” an excellent, comprehensive report offering sensible solutions to the many problems that plague the Bureau of Prisons and the sentencing system that propels its unabated growth. From the report:

BOP facilities are currently operating at between 35 and 40 percent above their rated capacity; this overcrowding is greater in high-security facilities, which in FY 2012 were operating at 51 percent over capacity, with medium-security facilities 47 percent above capacity. The capacity of BOP facilities in 2012 was 128,359, but BOP-operated facilities housed 177,556 inmates in 2012. Since FY 2000, the inmate-to-staff ratio will have increased from about four to one to a projected five to one in FY 2014.

This untenable status quo will be the norm for the coming decade: BOP projects that, through 2020, federal prisons will be overcrowded by at least 33 percent, with the population exceeding system capacity by at least 50,000 people each year. The BOP anticipates adding over 25,000 beds by 2020, but most of these projects have not yet been approved, and would not substantially reduce overcrowding.[…]

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