Wednesday, January 11, 2017

Privatize This

Prisons Run by CEO's Harbinger of Things to Come:

Last summer, the Justice Department decided to start winding down its use of private prisons.
Deputy Attorney General Sally Q. Yates noted in a memo that while private prisons were useful when public prisons were overflowing, they made little sense now that the prison population was falling. They didn’t save much on costs. Nor did they provide the kind of rehabilitation programs proved to reduce recidivism.
And they are particularly dangerous. A recent report by the department’s inspector general found that prisoners in private facilities, which house some 12 percent of federal inmates, were much more likely to have weapons. Private prisons had many more assaults on inmates and prison workers than those run by the Bureau of Prisons. And they went into lockdown to respond to disturbances 10 times as often.
But on Nov. 9, the day after Donald J. Trump was elected president, the stocks of correctional conglomerates were among the best performing on the New York Stock Exchange. Shares in Corrections Corporation of America, now CoreCivic, gained an astonishing 43 percent on the day. The reason? Privatization is back at the top of the government’s agenda
While this is being applauded in executive suites across corporate America, the cost for the rest of society is likely to be high.
And it's going to expand far and wide, way beyond prisons/jails/detention centers, to include other areas of both the correctional system (probation, parole, bail/bond, reentry programs, healthcare in prison, etc.). In fact, not only are other areas of criminal justice up for grabs (privatizing police, courts, etc.) but the move will include healthcare, hospice care, higher education, and foreign policy.
“There’s a magical thinking among business executives that something about the profit motive makes everything run better,” noted Raymond Fisman, a professor of economics at Boston University. “What is government going to be like when it is run by billionaire C.E.O.s that see the private sector as a solution to all the world’s problems?”

A serious body of economics, not to mention reams of evidence from decades of privatizations around the world, suggests this belief is false.

It is critical to understand how profit seeking can go awry, giving companies a motivation to skimp on quality to bolster margins. When a private provider faces little or no competition, or when quality of service is difficult to track properly — think of the well-being of patients in a nursing home, or the health of prison inmates — there will be nothing to stop it from pursuing higher profits at society’s expense.
And as I've written here about a million times over the years, that's the ultimate problem: the profit motive destroys fundamental goals in criminal justice. The point of the correctional system is to "correct," to ensure the person doesn't come back. Privatizing corrections makes no sense since a "success" story means loss of clients, business, and ultimately profit. And the cost-cutting measures usually enacted in private corrections harms inmates and endangers staff and public security.

Plus, it's not like these companies are really "private" in the capitalist sense anyway. When your business relies solely on government contracts for revenue, i.e. sucking at the public trough for tax dollars, you're basically on welfare. Privatization is just another massive fraud perpetrated on the tax payers by transferring public monies to the private sector.

But don't let a few facts get in the way. We're in for all kinds of "magical thinking" the next four years, the most egregious of which will be the ongoing (or ramping up of) commodification of prisoners.

Thursday, January 5, 2017

Slow Decarceration

Correctional Populations Decline Slightly 2015:

The nation’s jail and prison population decreased in 2015, according to federal data released on Thursday, and the number of adults locked up or on parole or probation fell to a level not seen since 2002 while overall crime continued to drop.

Reasons for the declining incarceration rates include the federal prison system releasing thousands of nonviolent drug offenders in 2015 and states seeking to save money by enacting legislation and policies to reduce prison populations.

The 2015 data was compiled by the Bureau of Justice Statistics in an annual report that focuses on the nation’s prison and jail populations. Data for 2016 will not be available until next December.

Adults in jail, prison, on parole or probation: 6.7 million. The figure represents about 1 in 37, or 2.7 percent, of all adults in the United States, a level far higher than in most other nations but the lowest rate in America since 1994. Of those 6.7 million adults, some 2.2 million were in local jails or in state and federal prisons — about 51,000 fewer than in 2014. The rest were either on probation (about 3.8 million) or parole (about 870,000).

As always, go to the horse's mouth for more details. Good news to end the year on. We'll see if the decarceration momentum continues in 2017.

Saturday, December 24, 2016

Happy Holidays

We're closed here at TPE till January. We leave you with Frank & Bing (and one of the grooviest open pit indoor fireplaces I've ever seen). Holiday felicitations to you and yours.

Big Bank Humbug

The New Round of Bank Bailouts You Won't Be Hearing About:

European banks have rushed to cut deals with prosecutors over longstanding claims that they pushed toxic mortgage securities in the years before the financial crisis.

The payouts are steep: Deutsche Bank and Credit Suisse said that they would disgorge nearly $13 billion combined to settle with the United States Justice Department.

But with the clock ticking before President-elect Donald J. Trump takes over, there appears to be an eagerness in Washington to conclude cases before a new, potentially more sympathetic, administration begins. As a result, these banks may have benefited from paying billions less than once proposed.

The $7.2 billion settlement with Deutsche Bank was a relief on Friday to its investors, who were rattled when it emerged in September that prosecutors were seeking a penalty of as much as $14 billion. Shares of Deutsche Bank rose as much as 5 percent in Frankfurt, before settling up 0.8 percent.

A smaller player in the mortgage-backed securities market, the British bank Barclays, appears to be willing to take its chances under the administration of Mr. Trump.

The crackdown on banks for those tainted securities was the Obama Justice Department’s biggest and most prominent crisis-era legal effort by far. Banks, most of them American, have paid more $100 billion in settlements with the government.

Yet the Obama administration has been criticized for allowing banks to write big checks to settle claims and for not prosecuting Wall Street executives.
As the history of the Obama administration starts being written, one of the most significant failures of his eight years in office will be their decision not to prosecute and jail the people responsible for the greatest financial catastrophe since the Great Depression. As I've noted on this blog since he was sworn in, the minute he uttered those now infamous words "we need to look forward, not backwards," we were doomed.

And now with an incoming administration seen as potentially far more friendly to the Big Banks than Obama has been (how that's possible, I'm not sure), they are quickly cutting deals and walking off into the sunset, totally escaping once again any criminal liability for the Great Recession.

So, bend over and grab your ankles, America. Since writing checks is the now accepted method of beating a criminal rap on Wall Street, expect a Caligula-like orgy of white-collar crime the next four years (and just as assuredly, another epic financial meltdown).

Tuesday, December 20, 2016

Diversion, Extortion, Whatever

After a Crime, the Price of a Second Chance:

Diversion is intended to relieve overburdened courts and crowded jails, and to spare low-risk offenders from the devastating consequences of a criminal record. It mostly applies to nonviolent cases that make up the vast majority of crimes — offenses like shoplifting, drug possession and theft. There are now diversion programs in almost every state.

But an examination by The New York Times found that in many places, only people with money could afford a second chance. Though diversion was introduced as a money-saving reform, some jurisdictions quickly turned it into a source of revenue.
And just like probation fees/fines, a money-making racket is born.
Prosecutors exert almost total control over diversion, deciding who deserves mercy and at what price, The Times found. The prosecutors who grant diversion often benefit directly from the fees, which vary widely from town to town and can reach $5,000 for a single offense. In a country where 27 million households make less than $25,000 a year, even $500 can be prohibitive.

Diversion, interviews and case records show, can be revoked for failure to pay, or never even offered to defendants deemed too poor to afford it. A prosecutor in Ohio said he rejected applicants if he thought they wouldn’t be able to pay restitution within a time limit — one that he imposed.

“To tell somebody that if you can pay for this, you can get your charges dismissed, but if you are poor you are going to go through the system? That’s completely unfair,” said Mark Kammerer, who runs diversion programs for the Cook County state’s attorney in Chicago, where defendants are not charged a fee.
Unfair? In the mob we refer to that as both "extortion" and a "shakedown." In politics we call it "quid pro quo" or "graft." In the criminal law, we refer to it as "robbery."
Because diversion is considered a privilege, not a right, the district attorney’s decision is almost always final and those who are rejected have no way to appeal.

And because prosecutors are usually not required to report on their programs and many diversion agreements are not filed in court, there is little quantifiable data on fees, success rates, recidivism or even who is rejected. A few studies, including a recent Department of Justice examination of the Memphis juvenile court system, suggest that whites are far more likely to get diversion than blacks.
Shocking, I know.
In Atlanta, Ms. Willis’s diversion was overseen by a private company that said about one in four of its cases was returned to court, often for failure to pay.
Because if we can privatize graft, shakedowns, extortion and robbery, we certainly will.

You can read the entire article, but the corruption is vast and wide in the Diversion movement. In addition to shaking down defendants, it can often take years to get the diverted charge off you record. 

And worse, if you fail to make a payment (which is easy for a lot of lower-middle income defendants) you go to jail. The article describes how one prosecutor and judge extorted a defendant (accused of shoplifting a $50 pair of blue jeans) for $5000 by putting her on an 18 month "payment plan" of $277/month...and when she was late by one week on the 17th payment, she was arrested and jailed. Appearing before the judge days later, he instructed her to begin the payments all over again or else face more jail time. In Dickens' era we called that Debtor's prisons; and the poor woman ended up paying $10,000 for a $50 pair of jeans.

This isn't "diversion," it's extortion. And the fact that it often leads to jail time anyway makes it nothing more than a prosecutorial/judicial racket.

Monday, December 12, 2016

The "Courtesy" of Living or Dying

Lethal Gaps in how Supreme Court Handles the Death Penalty:

Seven of the 12 jurors who convicted Ronald B. Smith in the murder of a convenience store clerk voted to spare his life. When the case reached the Supreme Court, four of the eight justices voted to stay his execution.

The arithmetic of capital punishment can seem curious. Mr. Smith was executed Thursday night.

Mr. Smith was convicted of murdering the clerk in 1994 in Huntsville, Ala. The jury recommended life without parole, but the trial judge overrode that determination, sentencing Mr. Smith to death.

Alabama is the only state that allows such overrides. It is a good bet that the Supreme Court will soon weigh the constitutionality of the practice.

That will be too late for Mr. Smith, who came up one vote short on Thursday night, illuminating a lethal gap in the Supreme Court’s internal practices. It takes four votes to put a case on the court’s docket, but it takes five to stop an execution.

Over the years, in fits and starts, some justices have sought to address this anomaly by casting a “courtesy fifth” vote to stay an execution when four justices thought the case worthy of further consideration.
Keep in mind, this isn't statutory or even case law requiring how the justices do their job. It's simply the way the court chooses to operate: four votes to take a case, five to stop an execution. CJ Roberts could change that internal policy tomorrow if he wanted, but that doesn't appear likely.
In the 11 years that Chief Justice Roberts has led the Supreme Court, its commitment to such courtesy votes has been inconsistent. Until Thursday, though, it seemed to be on the upswing.

The recent trend started with a case on transgender rights. A Virginia school board wanted to stop a transgender boy, Gavin Grimm, from using the boys’ restroom at his high school while the Supreme Court considered an appeal from a decision in Mr. Grimm’s favor.

In August, the court’s four more conservative members — Chief Justice Roberts and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. — voted to grant a stay. Justice Stephen G. Breyer added a fifth vote “as a courtesy.”

Justice Breyer’s motives were not hard to discern. He was concerned about execution chambers, not restrooms. The only case he cited in his concurrence in the transgender case was Medellin v. Texas, a death penalty decision in which he had expressed frustration that “no member of the majority has proved willing to provide a courtesy vote for a stay.”

Last month, Justice Breyer’s gambit seemed to pay off. On Nov. 3, the court considered an application for a stay of execution from another Alabama death row inmate, Thomas D. Arthur. Chief Justice Roberts provided the fifth vote needed to halt the execution.

He said he would not ordinarily have favored a stay, but noted that four justices had voted in favor of one. “To afford them the opportunity to more fully consider the suitability of this case for review,” Chief Justice Roberts wrote, “I vote to grant the stay as a courtesy.”

On Thursday, in Mr. Smith’s case, the court’s more liberal members — Justices Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — voted for a stay. But this time there was no courtesy fifth vote.

Upon hearing that news, Mr. Smith’s lawyers immediately filed a last-minute request for reconsideration.

“The court should not permit executions in the face of four dissents,” the motion said, adding that the court’s practices in this area “clash with the appearance and reality both of equal justice under law and of sound judicial decision making.”

That motion was denied, too, this time without noted dissent.
And then the dude gets whacked.

It really is satire, almost bordering on the absurd, that justices barter "courtesy" votes when it comes to life and death cases. I understand the horse trading in terms of how decisions get made in other areas of the law, how opinions get assigned, and so on, but I find it incredulous and unconscionable that this game can end in life or death. Or in the case last Thursday night in Alabama, death.

I guess at the Supreme Court, big matters of life and death are mere courtesies.

UPDATE: Justice Breyer blasted the lack of the "courtesy" vote for life in the Alabama case, among other anti-death penalty rantings in an interesting case the court chose NOT to hear.
Continuing his sustained critique of the American capital justice system, Justice Stephen G. Breyer on Monday issued an unusual dissent from the Supreme Court’s decision not to hear the case of a Florida death row inmate who said his conviction had been based on flawed evidence and false testimony.

Justice Breyer did not discuss the evidence against the inmate, Henry P. Sireci. Instead, he again urged his colleagues to reconsider the use of the death penalty, which he said was unreliable, arbitrary and shot through with racism. In the process, he addressed two other recent death penalty cases, from Ohio and Alabama, in which he said the court had also gone astray.

He said he would have agreed to hear the case of an Ohio death row inmate, Romell Broom, who had sought to avoid a second attempt to execute him after a first one had gone awry.

“Medical team members tried for over two hours to find a usable vein, repeatedly injecting him with needles and striking bone in the process, all causing ‘a great deal of pain,’” Justice Breyer wrote of the first attempt to execute Mr. Broom, quoting a court decision. “The state now wishes to try to execute Broom once again. Given its first failure, does its second attempt amount to a ‘cruel and unusual’ punishment?”
You'll remember inmate Broom from my now-infamous post "Lethal Injection's First Survivor" in September 2009. I say infamous because it continues to be the most widely-read post I've ever written, according to Google analytics, chalking up more than 30,000 unique views and shares over the years.

So while Breyer continues to blast away against the dp in solitary, looks like Ohio will get another shot at Broom, thus affirming the idea that you can indeed try more than once to kill someone in the Buckeye State.

Wednesday, December 7, 2016

Wells Fargo Still Defrauding Clients

Wells Fargo Killing Law Suits Via Arbitration:

In congressional hearing rooms and on national television, Wells Fargo has vowed to make things right for the thousands of customers who were given sham accounts.

The bank’s new chief executive, Timothy J. Sloan, in his first week on the job, said his “immediate and highest priority is to restore trust in Wells Fargo.”

But in federal and state courtrooms across the country, Wells Fargo is taking a different tack.
The bank has sought to kill lawsuits that its customers have filed over the creation of as many as two million sham accounts by moving the cases into private arbitration — a secretive legal process that often favors corporations.

Lawyers for the bank’s customers say the legal motions are an attempt to limit the bank’s accountability for the widespread fraud and deny its customers their day in open court.
Essentially, getting a judge to move these law suits against Wells to arbitration takes them out of the public view and allows the bank to settle the suits for undisclosed amounts of money, and without having to admit or be found guilty of criminal liability in court. 

It's like having a guy break into your house, steal all your valuables, and after he gets caught petition to have the case sent to arbitration, then "settling" with you by giving you back a portion of the valuables he stole from you. And never having to admit they are guilty of robbery or anything else.
“It is ridiculous,” said Jennifer Zeleny, who is suing Wells Fargo in federal court in Utah, along with about 80 other customers, over unauthorized accounts. “This is an issue of identity theft — my identity was used so employees could meet sales goals. This is something that needs to be litigated in a public forum.”

In arbitration, consumers often find the odds are stacked against them. The arbitration clauses prevent consumers from banding together to file a lawsuit as a class, forcing them instead to hash out their disputes one by one and blunting one of most powerful tools that Americans have in challenging harmful and deceitful practices by big companies.

Strict judicial rules limiting conflicts of interest also do not apply in arbitration, enabling some companies to steer cases to friendly arbitrators, according to a 2015 investigation by The New York Times.

Arbitration is also conducted outside public view, and the decisions are nearly impossible to overturn.
So in addition to committing identity theft on its own clients, the bank gets to make the suits disappear from public view (losing less future clients, stock value, etc.).
Ms. Zeleny, a lawyer who lives outside Salt Lake City and opened a Wells Fargo account when she started a new law practice, said it would be impossible for her to agree to arbitrate her dispute over an account that she had never signed up for in the first place.

The bank’s counterargument: The arbitration clauses included in the legitimate contracts customers signed to open bank accounts also cover disputes related to the false ones set up in their names.
LOL. I'm pretty sure I never agreed to have you, Wells Fargo, steal my identity and set up false accounts in my name. And never signed anything to indicate otherwise. 
Most Americans never bother to take their disputes to arbitration, particularly for a dispute over a small amount of money, the Times investigation showed.

And that is likely to be the case for many of the Wells Fargo customers who are sent into arbitration, lawyers say.

In many instances, the fees that customers were charged on the unauthorized accounts were less than $100. Few lawyers will take up individual arbitration claims when the potential damages are low.

“This is meant to have a chilling effect,” said Zane Christensen, a lawyer who represented customers in a suit against Wells Fargo in federal court in Utah. “They know customers will have a hard time finding a lawyer to represent them in arbitration.”
Luckily some of us know lawyers who are more than happy to take our cases in order to exact a measure of accountability and settlement from this criminal enterprise, er, bank.

But no matter what the final payout is, the fact that no one in upper management at Wells Fargo has gone to prison for fraud is the real injustice here. Only when Wells Fargo executives are frog-marched, in handcuffs and leg irons out the front door of their executive suites, will this kind of criminal behavior stop. 

Until then, write check, admit nothing, move on. Bravo, America.

UPDATE: And the hits just keep on coming. Now the insurance giant Prudential is accusing Wells Fargo executives of opening fraudulent insurance accounts on behalf of its unwitting clients (but only after firing three of its employees who blew the whistle).
According to three former managers in Prudential’s corporate investigation division, Wells Fargo employees appeared to have signed up bank customers for Prudential insurance without the customers’ knowledge or permission. In some cases, they even arranged for monthly premium fees to be withdrawn from their customers’ accounts.

When investigators reviewed tapes of calls to Prudential’s customer service line, they found complaints from Wells Fargo customers about policies they did not remember buying. Many of the customers did not speak English and needed a Spanish interpreter, the three plaintiffs said.

“This definitely was the same kind of conduct that Wells was committing, but through Prudential,” said one of the three whistle-blowers, Julie Han Broderick, an attorney and former co-head of Prudential’s corporate investigations division, which has about 30 employees.

Ms. Broderick and two of her colleagues, Darron Smith and Thomas Schreck, filed a wrongful termination suit against Prudential on Tuesday. They say they were fired in November for trying to escalate attention internally to their discoveries about conduct at Wells Fargo. 
Awesome sauce. Next up: Wells Fargo takes out insurance and opens credit card accounts on dead people.