On April 25, 2018, Professor Michel Rosenfeld was a panelist at a conference on “Regulating Hate Speech on Facebook” that took place at Columbia University and was organized by the Columbia Undergraduate Law Review.
March 30, 2014 USA Today - WILTON, N.Y. — For more than three decades, the only people who could appreciate the most dramatic views in Saratoga County near the mountain cottage where former president Ulysses S. Grant drew his last breath have been convicts and the uniformed officers who ensured their prisoners never strayed from the gated summit of Mount McGregor.
Few blinked at the idea of the state commandeering such prized real estate when Mount McGregor opened in 1981 as a medium-security state prison, a precursor to a corrections boom that lasted for nearly 20 years as New York's inmate population soared to 71,600 and punitive crime policies swept the nation.
"We could not build new prisons fast enough,'' Acting New York Corrections Commissioner Anthony Annucci told state lawmakers last month, describing the chaotic period when offenders flooded the criminal justice system.
In recent weeks, busloads of McGregor inmates have taken the opposite route down the steep mountain road as part of an unprecedented prison exodus that is helping to permanently alter the face of the nation's criminal justice system. By July, when McGregor and three other state lockups close for good, New York will have shuttered 24 of 93 adult and juvenile corrections facilities since 2011.
During that same time, 16 other states have either closed or proposed prison closings of their own in a bid to slice about 30,000 beds — more than the entire Ohio inmate population — from the vast penal system nationwide.
Prisons represent only one pillar of the costly justice system being dismantled or rolled back. Drug addicts, swept up en masse in the aftermath of New York's so-called Rockefeller Drug Laws of 1973 and the federal Anti-Drug Abuse Act of 1986, are being treated as medical patients rather than criminals. Marijuana, once regarded as the gateway substance in the drug war, is increasingly being decriminalized. Stiff sentences for repeat offenders, meted out in dozens of states, have been eased, as has the application of solitary confinement.
In perhaps the most symbolic development in this erosion of support for hard-line justice policies, six states have abolished the death penalty in the past seven years. It is a movement fueled in part by the exoneration since 2008 of 20 people who had been languishing on death row for crimes they did not commit. The latest one: Glenn Ford, freed this month after 30 years awaiting death at the Louisiana State Penitentiary at Angola.
What happened? Dwindling public resources jump-started a movement as stressed government budgets were unable to keep pace with the rates of prosecution and incarceration. It costs the United States about $80 billion per year to house more than 2 million in jails and prisons.
Lawmakers, criminal justice officials and analysts say there is a growing philosophical component to this seismic shift that is raising fundamental questions of fairness. The vanguard of the movement — which includes such unlikely partners as Sen. Rand Paul, R-Ky., and Sen. Patrick Leahy, D-Vt., — for the first time in a generation is collectively acknowledging that some of the most extreme punishment policies have largely failed."If I told you that one out of three African-American males are still prevented from voting because of the 'war on drugs,' you might think I was talking about Jim Crow 50 years ago,'' Paul told a Senate panel last September, referring to long-standing voting bans for convicted felons, extending far beyond their release.
Many of those, Paul said, are non-violent drug offenders who were subjected to mandatory minimum prison sentences — some decades-long — fueling the historic and costly rise of America's prison population.
"There is something really profound going on,'' said David Kennedy, director of the Center for Crime Prevention and Control at John Jay College of Criminal Justice. "There is movement on mandatory minimums (sentencing), there is movement on solitary confinement, there is movement on the death penalty.
"What ties them all together,'' he said, "is the basic recognition that the application of power without justice is brutal. And there is nothing democratic about brutality.''
NEW YORK CRACKDOWN
Perhaps no other state has had more time to consider the consequences of tough justice than New York.
In an effort to counter growing drug abuse, the state launched a crackdown in 1973 that sent shivers throughout the nation. Named for then-Gov. Nelson Rockefeller, the Rockefeller laws set punishment for some simple drug possession offenses at 15 years to life in prison.
The result was almost immediate — and overwhelming — as the state prison population surged beyond capacity. A generation of offenders was provided little hope of release.
New York has been unwinding the costly convergence of extreme penal policy ever since.
"This has been an evolutionary process,'' said Alphonso David, New York state's deputy secretary for civil rights. "People are now recognizing that the business of corrections is not really limited to incarceration. We were viewing corrections through the prism of incarceration and only through incarceration.''
Indeed, the state's prison population has been plummeting since 1999, dropping from 72,649 to 54,196 last year.
The decline has been accelerated by a sustained decline in violent crime, along with a continued emphasis on diverting non-violent drug and other low-risk offenders from the costly confines of prison to treatment or other outside supervision.
At the same time, state officials have pledged to restructure the use of solitary confinement, a form of extreme internal discipline used by prison officials across the country.
In an agreement announced last month with the New York Civil Liberties Union, state authorities will remove juveniles, pregnant offenders and the mentally ill from isolation.
The settlement — reached after a class-action lawsuit brought by the NYCLU — makes New York the largest prison system in the nation to ban juveniles from disciplinary solitary confinement.
"New York is taking a substantial step in the right direction, and we hope it will ultimately join the many other states who have recognized that lengthy isolation sentences cause serious harm while accomplishing little, if any, goals of a rational corrections system," said Alexander Reinert, a Benjamin Cardozo School of Law professor who was part of the legal team that brought the lawsuit.
Reinert referred in part to Colorado, as well as the federal Bureau of Prisons, the nation's largest prison system, which are both rethinking the use of solitary confinement. About 80,000 prisoners were held in some form of isolation in 2011, according to data compiled by the Bureau of Justice Statistics.
Beyond the changes in penal philosophy, New York officials project that their collective actions will save huge amounts of public money.
Thomas Abt, the state's deputy secretary for public safety, said New York will bank $221 million in savings a year from closing 24 prisons, including Mount McGregor.
Republican state Sen. Kathleen Marchione, who is allied with the state corrections officers' union in seeking to keep Mount McGregor open, said New York's prison system has been shrinking too fast for too long