Corrections and the Budget Crisis: a national perspective

Remarks by Judith Greene

A criminal justice policy analyst, Greene is currently a research associate for Families Against Mandatory Minimums and a senior fellow for the Justice Policy Institute. She has been a research associate for the RAND Corporation, a senior research fellow at the University of Minnesota Law School and director of the state-centered program for the Edna McConnell Clark Foundation. From 1985 to 1993 she was director of court programs at the Vera Institute of Justice. Ms. Greene also received a Soros Senior Justice Fellowship from the Open Society Institute. Her articles on criminal sentencing issues, police practices and correctional policy have appeared in many publications including Crime and Delinquency, the Federal Sentencing Reporter, the Rutgers Law Journal and the Wake Forest Law Review. She has presented papers for scores of organizations and conferences and testified before various legislative bodies.

I’m here to talk about what’s going on around the country and to deliver the message, which I will try to do while talking very fast, that we are not alone today as we face the budget crisis here in Michigan. And then I’m going to slow down just a little bit, hopefully not too much since we’re running behind, to talk about a neighbor state that has been facing similar issues as Michigan. A little different, but a little the same.

Let me start by making sure everybody knows that the budget crisis is pervasive, it’s national, most states are facing budget deficits that are, you know, stratospheric. They have not looked at budget shortfalls like this for the last 50 years. Budget deficits are running between 13 and 18 percent of state expenditures and so everybody’s struggling with what we are going to do to preserve, if possible, or make the gentlest cuts possible in areas like health care and education, essential social services. I’m going to talk about how states are dealing with some of that by cutting that big fat corrections budget that we see “glowing” after a 300 percent increase.

Michigan has taken the lead in one very important action that is spreading from state to state; the rolling back or eliminating of mandatory minimums, and I won’t tell you what you did because you already know. But a lot of states are taking measures that are returning discretion to the judges, revamping parole policies and procedures, improving release decisions, handling violators in a more smart way and cutting recidivism rates and dealing with re-entry issues that are so important in trying to cut recidivism rates.

Over the 90s, the nation experienced an historic increase in prison population, as we all know, but by 2001 we began to see a happy trend of leveling off and, in fact, between the end of 2000 and the end of 2001, the Bureau of Justice Statistics tells us that 10 states saw reduction in their prison populations: Massachusetts, New Jersey, New York, Rhode Island, Illinois, Ohio, Texas, Oklahoma, California, and Utah. The mid-year report, just out from BJS tells us that this trend is continuing in at least seven states. The reductions tend to happen in the latter part of the year so things aren’t looking too badly for 2002 with New Jersey, New York, Illinois, Texas, Delaware, Alaska and Idaho all seeing reductions in the prison population.

Now to save these other important sectors of government, governors in many states, Republicans and Democrats alike, have been closing prisons. California, Florida, Illinois, Nebraska, Michigan – your own state – Ohio and Virginia have all closed entire prisons and most of those states have not opened any new ones. In my view this is cutting correctly – taking pieces of the prison budget and putting it in those places were we can talk about probation, restoration and community corrections. We have a reawakening around the country in ideas, good ideas that needed to be revived and are now being revived because of the budget crisis.

Budget crises derailed prison construction plans ambitiously on the board in Oregon and California. There are new prisons standing empty without money to run them in Illinois, Indiana, Arkansas. Georgia was hoping that it could buy an empty prison that CCA had built on spec in the rural part of the state. Looks like the state can’t afford do that this year. Lacking funds to open some 900 newly constructed prison beds, the Arkansas Board of Corrections in 2002 evoked emergency powers to grant release to 521 prisoners. Kentucky has famously released 567 prisoners and then decided not to do that again anytime soon - a boomerang effect when a few of the prisoners went out and committed some crimes the Governor predicted they would. Oregon, however, is continuing to release felons from local jail sentences across the state.

Many other states are taking more strategic steps to cut corrections, not just opening up the door and letting people out, but, like Michigan, examining closely sentencing and parole policies to see what can be done in a rational and reasonable way that people can build a bi-partisan consensus around.

The parole area has proved to be a very fruitful approach in Texas, Texas of course having had an astronomical increase in its prison system from the early 90s until 2001. When the Corrections Department went to the legislature in 2000 saying that they needed to build yet more prisons, legislators said, “Uh oh, let’s take a look at what’s going on over at the parole board”. And between September 2000 and December 2001, the Texas prison population dropped by 7,600 prisoners, pretty much all because the parole board woke up. Texas has some of the lowest (parole) rates in the country and they remain low, but there was a renewed focus on dealing with revocations. The prison population is ticking up again and there is a huge debate in Texas, I won’t get into it, but needless to say, legislators from both parties, including some very conservative get-tough-on crime legislators, are sponsoring a raft of legislation upwards of three dozen different bills, to do something with sentencing or something with parole, in order to bring the population back under control.

In 2000, Kansas legislators mandated that probation and parole violators be sanctioned within the community corrections system rather than be sent to prison. They cut supervision time. They reduced the length of community service for many offenders in the low-level offense charges. They broadened the target ranges for community corrections under the state sentencing guidelines. Implementation of that legislation resulted in immediate discharge of 574 prisoners, and there is more happening in Kansas this year. I’ll get to that shortly.

In North Dakota, a one-year mandatory minimum sentence for first time drug offenders was repealed in 2001.

In Mississippi, the legislature amended a sweeping truth-in-sentencing law that they had enacted in 1994. Non-violent first offenders regained eligibility for parole reducing (the portion of the minimum served) from 85 percent to 25 percent. Truth-in-sentencing reductions, by the way, have been proposed and are alive still in Iowa this year; a reduction from 85 percent to 70 percent has passed the senate.

Back to 2001, Louisiana legislators repealed mandatory minimum sentences for simple drug possession and many other non-violent offenses, and they cut minimum sentences for drug trafficking in half.

In 2002, the New Mexico legislature repealed the mandatory sentencing enhancement that had required prosecutorial permission. Judges now have the ability not to impose the enhancement.

Legislation was signed in Washington to divert non-violent offenders in a kind of Proposition 36 style diversion from prison to treatment under the state drug court. Estimates are that this is going to save something like $75 million in correctional costs and avert the need to build more than 2,000 new prisons beds. The legislature has just sped up the process, so the savings are going to come a year more quickly.

There are sentencing commissions afoot with proposed guidelines in Georgia and Alabama. The Georgia Commission has been abolished, but the guidelines are pending review and perhaps adoption by the Supreme Court of the court rules. The Alabama Sentencing Commission has just proposed a sort of a phasing in of a new structured sentencing system.

Kansas, going back, the Sentencing Commission has passed changes this year, diverting more non-violent offenders convicted of drug possession offenses, and enhancing the offense severity classification for second, third and subsequent possession offenses so they’re kind of balancing, but they are hoping to save at least 800 beds over the next 10 years.

North Carolina has a raft of options placed before the legislature for their consideration. The prospects don’t look too good right now, but there is still legislation which might pass in Iowa bringing the crack/powder disparity in that state into parity.

Missouri is looking at legislation that has already passed one house that would require judges to pay more attention to the guidelines which they have been flagrantly disregarding, mostly in departing up in drug cases.

In Colorado last year, both houses passed a Prop 36 kind of drug sentencing reform, but the governor vetoed it; this year he’s indicated that if it passes, he may not veto it, so something may happen there.

In Ohio, your neighbor, sentencing guidelines introduced in 1996 and parole reforms which came into play in 1998 when new guidelines were introduced, have combined to bring the prison population down in that state. In January 2002, the Ohio Department of Rehabilitation and Correction shut a large prison at Orient and they are in the process right now of closing a second prison at Lima.

It’s interesting, I think, to talk a bit about Ohio because they are a neighbor state with a somewhat similar economic perspective and a largely similar prison population, at least in terms of size and growth. In 1980, Michigan had a little over 15,000 prisoners. Ohio had almost 14,000. By 1996, when Ohio introduced its voluntary guideline reform, Michigan had over 42,000 and Ohio had passed Michigan with more than 46,000 prisoners.

The Ohio sentencing reform was what they call a true truth-in-sentencing guidelines system, in that they abolished parole. The prison system however still holds something like 18,000 old law prisoners who are subject to parole, so the parole board has not gone away. The guidelines introduced in Ohio were crafted to push judges toward using community penalties for low-level non-violent offenders. Under the guidelines, these kinds of offenders can get two bites at the community program apple before they are likely to become prison-bound. In 1996, the state started pumping new money into community programs in order to create the capacity to handle this kind of shift.

So the guidelines have established a system of flat sentences. There is very minimal good time. Offenders who enter certain programs can get one day off a month, but there are not enough programs slots for most offenders to be able to do that. So most prisoners who are sent to prison serve a full flat term that the judge imposed, minus any good time if they have any. The parole board retains the discretion on the flat sentence prisoners to impose post-release control, post-release supervision, typically a three-year stint although not all offenders are subject to that. Judges retain jurisdiction over prison sentences in Ohio under the new law. The parole board can also grant something called transitional parole. And in that mode, up to 180 days of pre-release can be granted a prisoner. Typically they will be placed in a halfway house. They are still deemed to be a prison inmate on the count.

In fiscal 2002, of 25,866 Ohio prisoners who were released, 8,810 got this post-release controlled supervision; 1,304 were granted transitional early release, or I shouldn’t use the word early, transitional control by the parole board. Judges granted release, generally within 18 months to 2 years of the commitment of a prisoner, to 1,659 prisoners. The bulk of prisoners under the new law got out of prison at the expiration of their term and this was true also of the old law prisoners. The guidelines have worked to stabilize the prison population while adjusting the mix of prisoners so that the prison system is, in terms of it’s stock population, holding more violent prisoners and more veteran offenders.

In 1988, the Ohio Adult Parole Authority adopted new parole guidelines that dramatically changed the way old law prisoners were considered for parole. The guidelines have a grided sort of a federal system, actuarial, salient factor system. It has 13 levels of offense severity and a criminal history risk formula that scores a prisoner into one of four levels of risk, and so at the intersection of the two scores, you get the applicable guideline range of months. And the guidelines began immediately to produce turn around with most low-level non-violent prisoners gaining parole in record numbers.

By August 1999, Ohio’s prison population peaked bringing them back down closer to your population size. You were at 46,617. Ohio, by the end of the year, was at 48,171 down from a peak, but since then, you’ve been going up and they have been going down. According to BJS statistics, as of the mid-year, you are at 49,961, that is a gain of 4,300 and change in prisoners. In the same period of time, Ohio has decreased by almost 3,000. So you are up 4,000 and they are down 3,000. This is what is enabling them to be closing prisons saving them huge chunks of money. Orient is saving $40 million; Lima will raise the savings very substantially.

New court admissions, like here, are up. In 2002 Ohio enjoyed a record year twice your new court admissions, 2,200. The correctional officials there attributed this, in part, to an up tick of crime. Also all these community programs that were funded to make the sentencing reform robust are chock full of prisoners and so it’s a one in, one out situation. And there probably also is a recidivism factor, because the prisoners that are coming into the prison now are a little more likely to have been in prison before than they were a few years ago. Ohio’s 33 prisons remain overcrowded at 126 percent of capacity.

Incarceration costs about $22,000 a year, less expensive than yours. The comparison of treatment costs--for Mahoney County, the average treatment cost is $3,200 a year and that includes 54 percent of that population being in residential treatment.

Two significant developments happened in 2002 in Ohio that I want to talk about briefly. First, we all heard about the Campaign for New Drug Policy campaign crashing in flames in Ohio. With the prison population beginning to up-tick, the folks at the Department of Corrections began to wring their hands a little and then along came Wiley Layne, the other significant development in the state.

Wiley Layne was a prisoner, a moderately bad guy--he hadn’t killed anybody. But when he was sentenced, both his judge and his prosecutor agreed that Wiley belonged in prison. There has been this problem with the parole guidelines in Ohio – folks refer to it as the old law parole problem. Under the guidelines system, the new system, the parole board uses the guidelines grids to project a prisoner’s release dates. In most cases, for the old law prisoners, this is figured according to charges that had then been dropped pursuant to a plea bargain or charges that resulted in acquittal at trial or, in many cases, charges that had never been filed. The parole board essentially, routinely disregarded decisions that had been made by prosecutors and judges and in some cases reflected what many people in Ohio consider overcharging by the prosecutors office. As a result, many old law prisoners were serving much, much longer terms than prisoners who were coming in under the new law and many of them getting out flat.

Wiley Layne was indicted in December 1988 for kidnapping, abduction, and two counts of weapons possession. In January 1989, the prosecutor offered to drop the kidnapping charge, and Wiley pled guilty to abduction and possession of weapons and he received a sentence under the old law of two to 10 years. Under Ohio law, Wiley became parole eligible in 1990. He was denied parole. Layne’s first scheduled parole hearing under the new guidelines was held in September 1998. Now according to his conviction charge and his criminal history, Layne scored an offense level seven and risk level four with a recommended five to seven years to serve. But the parole board effectively restored his kidnapping charge and hiked his offense to level 10 with a recommended time to serve of 12-1/2 to 17-1/2 years and denied him parole.

In December 2002, the Ohio Supreme Court heard Wiley Layne’s appeal and they ruled that the Ohio Adult Parole Authority must project prisoners’ parole based on their actual crimes of conviction. The Supreme Court determined that the practice of hiking the offense charge on the basis of unproven allegations rendered Ohio’s statutory parole eligibility rules meaningless. The Court held the Parole Board could still use discretion in determining whether to depart from the guidelines by considering all the circumstances surrounding the offense, including crimes that did not result in conviction, to determine whether parole may in effect further the interest of justice and be consistent with the welfare and security of Ohio citizens, but that discretion, they said, must yield when it runs afoul of statutorily-based parole eligibility standards and judicially sanctioned plea agreements. This decision affects some 18,000 prisoners in Ohio. More than 3,000 of those prisoners whose offenses had already been hiked up by the parole board have now been scheduled for reconsideration between last month and this October.

Before the Layne decision, over the last two years, Ohio has gained an almost completely new parole board. In the last two years, veteran parole board members were offered very attractive retirement packages. The state was facing a budget crunch; these were the more expensive members of the board perhaps. Commissioner Reggie Wilkinson has been able to appoint six new members of the nine including a new parole chair. Parole board priorities have been refined and refocused. These goals now are sentencing equity and public safety, moving their focus away from the punitive practices of the old board, and they’ve been instructed that when there is no unreasonable risk or threat to public safety, they are urged to give strong consideration to release at the minimum eligibility date.

The new board has, in the last month or so, reviewed 43 cases that were heard under the new ruling in Layne and 38 prisoners were granted parole. It’s too soon for anyone in the research department of the Ohio Department of Rehabilitation and Correction to project what the impact of this decision is going to be on their prison population. But the managers at the department seem really quite delighted with the latest developments. They’ve long since shelved any plans for prison expansion. They’re currently advocating expansion of treatment programs, new programs within the walls so that more prisoners can avail themselves of treatment as well as earn some of those small earned time credits. But their emphasis will be primarily, if they can reach into federal pockets for some funds, building more programs outside the walls, because they’re very concerned still about stemming the increase in new court commitments under the sentencing guidelines.

In closing, I’d like to say something about the current budget crisis and its effect on all of us in terms of state policy changes and particularly speak to those of you in the audience who might be or work as advocates for sentencing or correctional or parole reform. And that is that I think it’s really important right now that we recognize that this is an enormous opportunity for us. The budget crisis is not going away. But we have to be clear as we work for change in this exciting period, that it’s really not just about the money.

Reggie Wilkinson, in Ohio, is quick to say that he’s still housing far too many prisoners in his prisons, and most of us would add that there is still far too much racial disparity in our sentencing system and our correctional systems. I think there is a growing consensus around that.

Mr. Jondahl this morning said that the budget crisis is forcing us to work together. That is, from my point of view, the nub of the opportunity. This is a wonderful opportunity to forge new alliances and make new friends and develop bi-partisan consensus around steps that we can take while the crisis is upon us, but it’s also an opportunity to convince all of our new allies with our best arguments about why we are doing this. That it’s not just about money. That it’s about fairness. That it’s about justice. So, we can forge really strong agreements with these new allies about ways to be smart rather than tough on crime and ways to work for reasonable and responsible change because we want to keep our alliances when the economy improves.

Thank you very much.