November 2nd may usher in the largest class of new governors in 40 years. Is the direction of state criminal justice policies about to change?
If national legislators think they've been facing tough decisions during the economic crisis, they might try being a governor for a day. Of the 50 states, 49 are legally required to balance their budgets and, as a result, state spending has cratered–falling in both 2009 and 2010, according to a survey by the National Association of State Budget Officers.
Such a two-year drop has never been seen in the survey's 31-year history. Those fiscal straits, along with high unemployment, have mostly relegated crime to a secondary issue in the gubernatorial races that will be decided November 2.
But not in Illinois.
In September 2009, Gov. Pat Quinn launched a quiet cost-saving initiative to reduce the size of the state's prison population. In a revision to the state's early-release program, which reduced non-violent offenders' sentences in exchange for good behavior, Quinn eliminated an extra 60-day waiting period that prisoners were traditionally required to serve even if they'd earned enough time to be released.
But the Associated Press ran a story in December 2009 citing examples in which the program released prisoners after they'd served no time in state prison at all. The Illinois legislature responded by passing legislation revoking Quinn's change.
Malcolm Young, an attorney and adjunct professor at Northwestern University School of Law's Bluhm Legal Clinic, contends that the examples cited in the Associated Press report were misunderstood. The released prisoners served no time because of plea deals with prosecutors and judges, not because of the change to the early-release program, he told The Crime Report.
Nevertheless, in September 2010, Michael Randle, the head of the state's corrections agency, resigned after months of pressure from Quinn's opponents to do so.
That didn't mollify the critics. Quinn's Republican challenger, state senator Bill Brady, has been running television ads accusing the governor of putting “1,745 hardened criminals” back into the streets through the program. That line of attack may be working. An October 21 poll has Quinn trailing by eight points.
Although Illinois is a special case, it also offers a template to how criminal justice policies could become part of the populist reform drive sweeping the country. In a change election powered by Tea Party sympathies, everything is up for grabs.
“With 30 new governors coming in, everything that's taking place in states could be potentially in play,” says Thomas MacLellan, who directs the National Governors Association's Homeland Security and Public Safety Division.
“Really Difficult Choices”
Forty states have cut their corrections budgets in the last two years, and several have prison systems in crisis. But if gubernatorial candidates are planning to address the problems, they're mostly not being specific about how.
California is the most prominent. Next year, the U.S. Supreme Court will rule on a lower-court three-judge panel's decision to require the agency to reduce the state's inmate population by 40,000–nearly one-quarter of the prisoner total–because of overcrowding.
But in a tight race, the gubernatorial candidates have shied away from addressing the issue in detail. Democrat Jerry Brown, who is also the Attorney General, has defended the Schwarzenegger administration's appeal to the high court for a reversal of the decision, as required by law. For her part, Republican Meg Whitman has alleged that Brown has a history of being soft on crime, without offering much evidence.
Likewise, the probable winner in the Kansas race–Senator Sam Brownback–has yet to discuss how he'll address the state's overflowing prisons. In August, the Kansas Sentencing Commission reported a prison population of 8269, ten more than the system's capacity, and the commission projects the population rising by another 2000 over ten years.
Until recently, Kansas was a model of forward-thinking prison policy. In response to a high rate of re-offending by ex-prisoners, in 2007 the state legislature funded a range of programs–such as education, drug treatment, and supportive housing–to help them reintegrate. The approach appeared to work: the number of ex-offenders returning to prison dropped by 16 percent from 2007 to 2009.
But Republican state representative Pat Colloton told The Crime Report that when the economic crisis hit, the programs were cut. In 2010, the number of former offenders returning to prison has spiked 16 percent, back to the 2007 level.
Colloton thinks Brownback will restore the lost money. That could happen–he's a champion of re-entry programs. “I want to see recidivism cut in half in the next five years, and I want it to start in Kansas,” Brownback had told a reentry policy forum back in 2005. He also co-sponsored the federal 2007 Second Chance Act, which funds housing, education, employment, and other services for ex-offenders.
Where the funds will come from is another matter. “I think whoever wins in Kansas is going to face some really difficult choices,” Roger Werholtz, Kansas' corrections chief, told The Crime Report. “You either spend more on corrections, taking the money from someplace else, or you look at controlling the [prison] population. My view of the analysis that's been done by the Sentencing Commission is that the only way you're going to control the population is through sentencing policy.”
From Sentencing Policy to Attack Ad
But if changes in sentencing are part of the solution to overcrowding in some states, they're also being used by challengers to bludgeon incumbents. In New Hampshire, the governor's race has turned ugly over the Justice Reinvestment Act signed by Democratic governor John Lynch in June 2010.
In line with the popular “smart-on-crime” approach, it allows shorter sentences in exchange for parolees enrolling in drug, alcohol and mental-health treatment programs. Ex-offenders also are monitored more intensively, and parole supervisors have the option of imposing swift and certain jail time and other sanctions.
The law passed both houses of the New Hampshire legislature this spring on bipartisan votes. But after the New Hampshire Union Leader reported on September 24 that four sex offenders were in the first group of prisoners released, several Republican legislators who had voted for the bill said they had been misled into thinking that it did not apply to sex and violent offenders, and Republican challenger John Stephen went after Lynch for pushing the legislation.
On September 30, the Washington-based group Americans for Prosperity began running a television ad that described Lynch's priorities as “urging lawmakers to pass a bill mandating early parole for prisoners, violent criminals, including sexual predators. . .”
For his part, Lynch, who is polling at least 10 points ahead, argues that the state will be safer if all prisoners are closely monitored after their release. And he's fighting fire with fire, criticizing Stephen for changing rules in 2004 when Stephen was head of the state's health and human services agency to allow social workers to decide whether to let former felons become foster parents.
The Return of “Tough on Crime?”
Negative attacks like these have in the past pushed candidates towards traditional “tough on crime” approaches like longer sentences, little leeway for nonviolent offenders, and harsher prison conditions, at least at election time. This year's campaign climate may presage a return to such policies, even though national crime rates continue to drop.
Indeed, in at least two other states, front-running gubernatorial challengers are talking tough. In Tennessee, Republican Bill Haslam, who has an 28-point lead over Democrat Mike McWherter in the latest poll, is running on tougher state sentencing laws, promising to minimize costs by using his management experience to improve the corrections system's efficiency.
Haslam campaign's press secretary, David Smith, said that Haslam had spoken with district attorneys across the state over the last two years. “They're all encouraging longer sentences,” he told The Crime Report. The candidate, says Smith, believes that in the long term, longer sentences will discourage would-be criminals and save the state money.
Haslam's call for longer sentences might be due to the fact that Tennessee appears better positioned to put more money into corrections than do other states. A recent analysis judged Tennessee's budget outlook the best of the fifty states, though the 2011 budget still has a modest $1 billion gap.
In Pennsylvania, the platform of front-runner Republican Tom Corbett doesn't mention his crime policy.
But he is on record criticizing sentencing reform, expressing skepticism in 2008 of a state law passed that year that awarded prisoners time off their sentences for good behavior. “I am going to take a look at what the crime rate is when that goes into effect,” he said, “and I want to see what it looks like five years from now,” adding that the law meant that Pennsylvania would no longer be a “truth in sentencing” state.
Corbett hasn't taken a position on another prison reform bill that passed the legislature on October 14. Now on the desk of Democratic Gov. Ed Rendell, it aims to ease prison overcrowding by giving technical parole violators alternative punishments to a return to prison.
Bill DiMascio, who heads the 200-year-old Pennsylvania Prison Society, a prisoner advocacy group, believes that the bill was severely weakened when Corbett worked behind the scenes to take out a key provision. The removed measure would have placed nonviolent offenders in a community corrections facility a year prior to their release to help them reintegrate into society.
Campaigning Versus Governing
At least two national prison reform advocates seem unconcerned about candidates' talk of longer sentences. “What I think is intriguing is how bipartisan many of the sentencing and parole reforms have been,” says Marc Mauer of The Sentencing Project, pointing to recent sentencing reforms passed in cherry-red states like South Carolina and Texas.
And Deborah Fleischaker of Families Against Mandatory Minimums, which advocates for sentencing reform, thinks that changes in states' governing party won't much matter, since governors will soon find out that they can't afford to keep locking up prisoners in the current numbers. “I think sometimes people say things in campaigns before they really understand the full scope of the problem,” she says
That's little solace to Northwestern's Malcolm Young, who calls the current situation in Illinois a “mess.” Since the state legislature suspended the revision to the early release program in January 2010, he says there's been an increase of 3,000 prisoners in the state prison system, due largely to the suspension.
He fears the accusations in the governor's race are having a trickle-down effect, making judges feel compelled to impose longer sentences and parole officers to put ex-prisoners back behind bars for minor violations.
“I think we're in trouble,” he says. “It's larger than the governor's race, it will continue after the governor's race, and it will permeate the system.”
Steve Yoder is a freelance journalist based in Woodstock, New York.
Photo by Tammy Greene via Flickr.