SCOTUS Strengthens 8th Amendment Protections for Intellectually Disabled

In 2002, in Atkins v. Virginia, the Supreme Court prohibited capital punishment for defendants who suffered from what the Court then called “mental retardation.” However, the Court did not prescribe any particular process or standards for determining which defendants qualify. Florida adopted a particularly restrictive approach, refusing even to consider the full spectrum of evidence of intellectual limitations if a defendant’s IQ had not been scored 70 or lower. Earlier this week, in Hall v. Florida, the Supreme Court rejected this test for failing to take into account the standard error of measurement (SEM) of IQ tests. “This rigid rule,” Justice Kennedy wrote for a narrow 5-4 majority, “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” (Along the way, the Court expressly changed its preferred terminology from “mental retardation” to “intellectual disability.”)

Kennedy’s reference to “unacceptable risk” goes to the heart of the disagreement between the majority and the dissenters.  

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Which States Have Reduced Their Prison Populations in the Past Decade?

By 2002, in the wake of a recession that caused difficult fiscal challenges in many states, there was an increasingly widespread recognition that the American imprisonment boom of the 1980s and 1990s was not economically sustainable. Dozens of states adopted new sentencing and corrections policies that were intended to restrain further growth in imprisonment. These reforms seem to have had some success, as imprisonment rates finally stabilized after so many years of explosive growth. However, very little progress has been made toward bringing U.S. imprisonment rates back down to historic and international norms. The “if you build it, they will come” principle seems in evidence — after so much prison capacity was built in the boom years, we’ve found ways to keep using it even as crime rates have tumbled down.

Notwithstanding the overall national picture, a few states have had success in downsizing their prison populations. Here are the ten states whose prison populations dropped between December 2002 and December 2012:

New York             -19%
New Jersey          -17%
California             -16%
Connecticut         -15%
Michigan              -14%
Maryland             -9%
South Carolina    -5%
Wisconsin            -5%
Rhode Island       -2%
Hawaii                  -1%

Even the largest decreases on the list are rather small compared with the size of the pre-2002 increases. Nonetheless, some might wonder whether reduced imprisonment has resulted in more crime. With that concern in mind, I gathered data on violent crime in the five states that experienced double-digit drops in imprisonment.  

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New Study Shows High Arrest Rates for Returning Prisoners–What Are the Policy Implications?

Every decade or so, the U.S. Bureau of Justice Statistics releases a big national study of prisoner recidivism. The latest BJS research came out last week, and the numbers were no less depressing than they were in 2002. Here’s the report’s lead:

Overall, 67.8% of the 404,638 state prisoners released in 2005 in 30 states were arrested within 3 years of release, and 76.6% were arrested within 5 years of release.

Failure seems to be the norm, not the exception, for individuals released from U.S. prisons.

High recidivism rates constitute the most difficult and important challenge for those of us who would like to see fewer long sentences and more generous opportunities for inmates to earn early release. If most prisoners are rearrested shortly after they get out, doesn’t that lead inexorably to the conclusion that we should err on the side of more, not less, time behind bars?

Certainly, the woeful recidivism numbers should take indiscriminate, mass releases off the table. On the other hand, I think it is possible to overstate the significance of national rearrest rates for sentencing and corrections policy. These numbers should be the start, not the end, of the conversation.  

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