Does Smarter Sentencing Equal Lower Prison Numbers?

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The United States has the world’s highest incarceration rate—and efforts to reduce it have been the focus of studies by leading academics, advocacy groups and policymakers.

Most recognize that if significant change is going to come, it will be at the state level, where the majority of prisoners are held—and for the past decade or so, states have been pursuing strategies for reforming sentencing codes, developing alternatives to incarceration, and reshaping prisoner re-entry policies aimed at cutting recidivism.

So how well have they done?

The Crime Report asked some key experts to assess the progress so far, and the reactions were decidedly mixed. One preliminary conclusion: “tweaking” certain policies doesn’t work when it comes to meaningfully solving America’s mass incarceration problem.

But another—more optimistic assessment—is that states have come a long way in changing a massive system that took decades to build.

It’s important to note how far the needle has swung from the tough-on-crime polices of the 1980s and 1990s that swelled state prison populations (and sparked a prison-building boom) across the nation. For the most part, it wasn’t until after 2000 that legislators in many statehouses—for a variety of reasons—acknowledged that the hard-line strategies were not only an ineffective way to reduce crime; they were costing taxpayers a ton, with relatively little to show for it.

Legislatures took different approaches to address their own contributions to the problem of mass incarceration. Perhaps the most popular approach was to focus on reforming sentencing policy. Some states repealed harsh mandatory-minimum drug sentences; others created non-prison options for people convicted of lower-level property or drug crimes, or reduced penalties on repeat offenders.

In a special session this week at John Jay College of Criminal Justice in New York, some of the key players in state sentencing reforms will assess how well these measures have worked—and whether more needs to be done.

Feds Lag Behind

Most analysts agree that states have been much further ahead than the feds on these issues.

For the past year, members of Congress have been debating a variety of bills that would make changes to federal sentencing guidelines similar to some of the revisions already underway at the state level. The proposed Sentencing Reform and Corrections Act has received widespread bipartisan support—but is now stalled by the resurgence of concerns that relaxing punishment standards would lead to an increase in crime.

There’s no shortage of voices about what type of impact that bill would have.

But few seem to look to states for lessons, regardless of the well-worn phrase about them being “laboratories of democracy.”

Have states been successful?

Experts contacted by The Crime Report had different views.

Adam Gelb, director of The Pew Charitable Trusts’ Public Safety Performance Project said that the national conversation on criminal justice is undergoing a transformation.

“We are really starting to see a culture shift in which policymakers are becoming eager to base decisions on data and evidence rather than emotion or ideology,” Gelb said in an interview. “There’s been a tremendous amount of progress but there’s still a long way to go.”

Other researchers disagree, saying there is more smoke than fire in state efforts. Minor tweaks to sentencing policies, which they say is largely what states have done, have not worked to significantly impact the nation’s mass incarceration problem.

“Most states have not made any progress,” says James Austin, who runs the Washington, D.C.- and California-based JFA Institute, a criminal-justice consulting firm. “Those that are making some progress, it’s been pretty miniscule.”

Michael Tonry, director of the Institute on Crime and Public Policy of the University of Minnesota argues the same thing.

In his new book, Sentencing Fragments: Penal Reform in America, 1975-2025, Tonry describes states’ approach to reducing prison population through minor changes to sentencing and release policies as “nibbling” around the edges of the problem.

“What’s being done is these little tiny tweaking around the edges, and then making big projections,” he said in an interview with The Crime Report. “That’s not how the world is going to change.”

1.35 Million In State Prisons

Despite the attention paid to the federal sentencing bill, the number of prisoners under federal control is miniscule compared to the state level.

About 13 percent of our country’s prisoners are serving time in federal prisons. The other 87 percent, more than 1.3 million people according to the Bureau of Justice Statistics, are in state prisons.

That number of state prisoners hasn’t changed dramatically in the last decade; it’s leveled off. The number of people in state prisons is about the same as it was ten years ago. From 2004 to 2014, the state prison population went up from roughly 1.32 million to 1.35 million, according to the Bureau of Justice Statistics.

That most recent number (1.35 million state prisoners in 2014) is down from its high water mark, 1.41 million in 2008. Critics suspect the leveling off could be attributed to harsh sentences imposed in the 1980s and 1990s finally coming to an end. But defenders point to the nation’s decreased incarceration rate as real progress.

The nation’s adult incarceration rate, which includes offenders in not only state prisons, but federal prisons and local jails, dropped 10 percent from 2007 to 2014, from 1 in 100 to 1 in 111.

“The incarceration rate has declined steadily each year since 2008,” notes the most recent report on the correctional populations in the U.S. by the Bureau of Justice Statistics.

Last week, The Sentencing Project released an analysis on how well states have handled the problem of growing prison populations. “Relatively modest,” the report concluded.

“While 39 states have experienced a decline since reaching their peak prison populations within the past 15 years, in most states this reduction has been relatively modest,” reads the report. “The overall pace of change, though, is quite modest given the scale of incarceration.”

There have been major gains, though one could make the argument that the reductions in prison populations of three of the four states at the top of the Sentencing Project’s list had nothing to do with legislatures taking the initiative to reform sentencing policy.

New Jersey’s 31.4 percent decrease from 1999 to now could be attributed to a 2001 lawsuit that forced it to fix its parole backlog. New York’s 28.1 percent reduction from its peak year of 1999 to 2014, according to a report by the Brennan Center for Justice, had more to do with the NYPD’s shift away from making felony arrests and making more misdemeanor arrests.

California was forced to reduce its prison population by a federal court order.

Austin argues that California’s success is a sign that litigation and voter referendums (Proposition 47) are the path to change.

“Working within the system, in legislatures or with corrections departments, just doesn’t seem to be working,” he said.

Tweaks Or Real Change?

Tonry says one reason why reforms in certain states haven’t achieved projected gains is that stakeholders like prosecutors, judges and parole boards are not invested in changing the system.

“The problem with tweaking things is they have to be implemented by somebody,” he said.

Kentucky’s Public Advocate Ed Monahan says that’s exactly what’s going on in his state. In an interview, he pointed out that some judges aren’t taking advantage of having more discretion in sentencing, and that parole boards are paroling “less than 70 percent of people it evaluates as low risk.”

He’s right. Between July 2013 and February 2015, the most recent data available on the Kentucky Parole Board’s site, offenders with the lowest risk-level score, the first of four levels, were paroled 67.2 percent of the time.

“That’s costing the state millions upon millions,” Monahan said in an interview with The Crime Report.

Back in 2011, Kentucky was lauded as a model for taking a smart bi-partisan approach to reforming harsh sentencing policy. At the time, The Crime Report wrote a story titled, “How a‘Tough-on-Crime’ State Became Smart on Crime.”

Five years later, Kentucky’s projected reduction in its prison population hasn’t happened. In fact, the number of prisoners right now is more than it was when Gov. Steve Beshear signed the bill in March 2011.

In response to that, legislators in Kentucky have gone back to the drawing board. Rep. Brent Yonts, a Democrat in the Kentucky Assembly, recently introduced a bill that would create a new crime category, “gross misdemeanor,” aimed at reducing the number of felonies associated with not paying child support, forgery and possession of a forged instrument. He’s pitching it as a way to save the state $21 million in a tight budget year.

“Criminal court cases have dropped by 16 percent in the last decade, but the number of people who are incarcerated is still rising,” Yonts told The State Journal. “If we don’t do anything to solve that problem, nothing is going to change.”

Georgia Makes Headway

One state that has gotten a lot of press recently for figuring out how to successfully reform harsh sentencing laws is Georgia. In 2011, Georgia Gov. Nathan Deal signed a bill that modified mandatory minimum sentences on drug charges, gave judges more discretion in drug sentencing, raised the felony threshold for certain theft crimes.

Since the bill was signed, Georgia’s prison population has gone down every year, from 55,944 in 2011 to 52,949 in 2014, a slight decrease but a decrease nonetheless.

If that bill, along with another bill on juvenile justice in 2012, had not been passed, the state says its prison population would have gone up by 8 percent and cost $264 million more to expand capacity. The policy change has saved the state millions, but according to a report last year by the state’s Council on Criminal Justice Reform, Georgia’s prison population is projected to go up every year over the next five years.

So at least for Georgia, success seems to be measured on figuring out how to slow the increase, but not to reverse the trend. There is reason for optimism, though. Despite those projections, the prion population has actually continued its downward trend — and policymakers haven’t given up. After initial reforms were passed in 2011, Georgia has passed reforms every year since 2011, something states like Kentucky haven’t done.

“Georgia is back year after year,” said Gelb. “That kind of reform-minded environment can have an impact well beyond specific changes to law and policy.”

That could also be said for a state like Connecticut, which made a great amount of progress on reducing its prison population by reforming its parole system in 2004 and again in 2008. Those reforms worked at reducing the prison population, and last year Connecticut followed that up with a bill to reform sentencing guidelines last year.

Adam Wisnieski is a Hartford-based freelance reporter, and a contributing editor of The Crime Report. You can follow him on Twitter @adamthewiz. He welcomes comments from readers.

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