The Smart Way to Get Tough on Crime (Spring 2011 Trust Magazine Article)

Source Organization: Pew Center on the States

Author: Jodi Enda

08/05/2011 - Jerry Madden graduated from West Point, served in Vietnam and is a self-described “conservative Republican” who has represented Plano in the Texas House of Representatives for 18 years. His credentials are not those of someone given to being easy on criminals.

Yet Madden travels the country these days to spread the word of how Texas has reduced its inmate population and put an end to its once-skyrocketing rate of prison building. And he does so because it has all happened without jeopardizing Texans’ public safety and while saving his state billions of dollars.

It’s time, he says, for other states to follow the lead.

“There are opportunities in every state to deal with the problem we have of a shortage of prison cells and an ever-growing prison population,” Madden says. The key, he explains, is to do so in a smart way that protects the public and even makes it safer, keeps dangerous criminals behind bars and helps nonviolent offenders become productive members of society.

Madden is one of a growing number of policy makers from across the political spectrum who have been working in a bipartisan fashion, with the help of the Pew Center on the States, to reform their states’ corrections systems from top to bottom.

States spend $52 billion a year on corrections, a number that has quadrupled in the past two decades, according to a report this spring from the center’s Public Safety Performance Project. The only portion of states’ budgets that has grown faster is Medicaid, the health care program for the poor.

It’s no wonder: In a little more than three decades, the U.S. prison population has risen by more than 700 percent. The number of people on probation and parole also has gone up, to more than 5 million, an increase of 1.6 million people from a quarter century earlier. The project determined that between those under supervision and those in prison or jail, 1 in every 31 adults in this country was under some form of correctional control.

Despite the billions of dollars it spends punishing criminals, America is not getting a good return on its investment, the project concluded in its April 2011 study, State of Recidivism: The Revolving Door of America’s Prisons.

Recidivism rates have remained virtually unchanged—and very high—for decades. Of every 10 people released from prison, more than four return within three years. A state-by-state review conducted by the project and the Association of State Correctional Administrators showed that 45.4 percent of the people released from prison in 1999 were back behind bars by 2002. And 43.3 percent of those released in 2004 were incarcerated again by 2007.

A large number of people who return to prison do so not because they have committed a new crime, but because they have violated the conditions of their parole or probation. That can mean something as simple as failing a drug test or forgetting to show up for an appointment with a parole officer. “If more than four out of 10 adult American offenders still return to prison within three years of their release, the system designed to deter them from continued criminal behavior clearly is falling short,” the report concluded. “That is an unhappy reality, not just for offenders, but for the safety of American communities.”

The question is what to do about it.

“We Know So Much More Today”

The old way of doing things consisted mostly of locking up more people and having them spend more time behind bars—at an average daily cost of $78.95 per inmate. But for many nonviolent offenders, there are far less expensive and more effective alternatives.

The Public Safety Performance Project and its partners have worked with officials in 26 states to come up with individualized plans aimed at reducing recidivism while protecting public safety. The effort is part of the broader work of the Washington, DC-based Pew Center on the States to help states improve the performance of their services and address fiscal challenges to garner immediate and long-term stability.

“We know so much more today than we did 30 years ago, when we started down the prison-building path, about what we need to do to stop the revolving door,” said project director Adam Gelb. “Leaders from both sides of the aisle are recognizing that they can push smart policy in this arena and survive at the ballot box.

“That,” he said, “is where Texas comes in.”

Because of its reputation for being unabashedly tough on crime, because it moved early—well before the recession—to stanch the flow of dollars to prison construction, and because it did so in an overtly bipartisan fashion, Texas has become something of a poster child for corrections reform.

Indeed, reform leaders in the state legislature—Madden and John Whitmire, the Democratic chairman of the Senate Criminal Justice Committee—were among eight people deemed by Governing magazine to be “Public Officials of the Year” for 2010.

Between 1979 and 2000, Texas built 137 new prisons, more than any other state, according to a 2004 study by the Urban Institute. In 2007, the state Department of Criminal Justice sought another $523 million, enough to build only a fourth of the additional prison space it was projected to need in the coming five years. Texas housed more inmates—nearly 172,000—than any other state and was anticipating a 10 percent increase by 2012.

“We had two choices: Let them out or slow them down to have fewer people coming in,” Madden recalled. “The choice in Texas was pretty obvious in those days. We’re not one to throw open the prison doors.”

With assistance from Pew and its partner, the Council of State Governments Justice Center, Texas began its reform process by dividing prisoners into two groups: violent offenders who need to be kept behind bars for a long time, and nonviolent offenders, many of whom pose little danger to society.

“You keep the people in prison who you’re afraid of,” Madden said, such as armed robbers, kidnappers and murderers. Then, “look at the people you’ve got locked up who are low-risk. You’re probably mad at them … but not afraid of them. The drug users, the guy who steals your CD disk, takes your golf clubs out of your car, check forgers. Figure out what’s causing their behavior and figure out what you can do to change it.”

Rather than build new prisons, the Madden and Whitmire team proposed diverting money to substance-abuse and mental health programs, halfway houses for released offenders and short-term facilities to hold people who violated the terms of their parole or probation. The price tag: $241 million, less than half of what the state had requested for new prisons.

“Let’s Rethink This”

When states ask the Public Safety Performance Project and its partners for help, Pew seeks a strong, public and bipartisan commitment from leaders in all three branches of government. “We request and are getting letters signed by the governor, the Senate president, House speaker and chief justice saying they realize they have a challenge in this area, they want better results, and they want Pew and our partners to help,” Gelb explained. Often, those leaders will hold a news conference at the outset of the work, which “sends a strong signal that they expect something meaningful to happen.”

Pew helps analyze state data, determining, for instance, what it would cost to maintain the existing system and house additional prisoners; what is driving projected increases; and what strategies could help fewer offenders return to the system after being placed on probation or released from prison.

Since every state is different, there is no one-size-fits-all fix. Once the data reveal the culprits behind rapid prison growth or high recidivism rates, Pew helps a bipartisan, inter-branch group of policy leaders devise policy options that fit the state’s specific challenges. Pew’s experts offer policies, practices and programs that research has shown to reduce recidivism, and that have worked in other states. Pew also brings many criminal justice stakeholders into the reform process, including prosecutors, police and sheriffs, crime victims, and substance abuse and mental health treatment providers.

Some common policy options include reclassifying offenses to allow courts to impose shorter—and, sometimes, longer—prison terms, expanding eligibility for probation or community corrections to include more nonviolent offenders, increasing incentives for inmates to complete risk-reduction programs to hasten their discharge from prison, mandating that higher-risk offenders be supervised when they are released, and implementing swift but mild punishment for probation and parole violations.

Technology has made it easier to monitor people on parole and probation through global positioning systems and other means, and science has demonstrated how to modify behavior better and to determine who is most—and least—likely to return to a life of crime, Gelb said. Together, they reduce much of the guesswork that previously went into sentencing decisions and programs to help offenders during and after incarceration.

“People do assume that victims want to lock them up and throw away the key. That’s not my experience,” said Anne Seymour, a victims’ advocate based in Washington, DC, who has worked with Pew. “They want the offender to be held accountable. They want to feel safe and, in a lot of cases, they want restitution.”

Much of this new approach is based on Pew’s innovative research on these topics. In recent years, its reports such as One in 100: Behind Bars in America in 2008 and the 2011 study on recidivism have revealed important facts about the cost and effectiveness of incarceration and the impact of new, alternative programs being launched across the county.

This research is increasingly attracting the attention of a policy makers across the political spectrum who have helped create a political environment more amenable to change. They include such conservative luminaries as Newt Gingrich, William Bennett, Grover Norquist, Edwin Meese III and Asa Hutchinson, who have joined Right on Crime, an organization operated by the Texas Public Policy Foundation, a Pew partner, that seeks to demonstrate that supporting corrections reform does not mean being soft on crime.

Hutchinson is a former Republican member of Congress from Arkansas and administrator, under President George W. Bush, of the federal Drug Enforcement Administration. He said there are two important conservative concepts highlighted by Right on Crime: fairness and fiscal responsibility.

“It’s primarily a signal to conservatives across America that it’s appropriate and the right thing to do to take a fair look at our prison policies and make sure they serve the administration of justice and are also cost effective,” he said.

Hutchinson, also a former U.S. attorney who fought in Congress to close the sentencing disparity between users of powder and crack cocaine, noted that Right on Crime represents a significant change for the nation’s conservative leaders.

“It’s a shift from that approach that any legislative effort to increase penalties was automatically supported by conservatives because they didn’t want to appear to be soft on crime,” Hutchinson said. “Now the Right on Crime initiative says to conservatives across America: Let’s rethink this. Let’s not abandon a serious approach to crime problems, but at the same time, we have to be fair in looking at the policy and recognize that we have made some mistakes—one of them being the crack cocaine and powder policy.”

Meese, a U.S. attorney general under President Ronald Reagan, currently holds the Reagan Chair in Public Policy at the Heritage Foundation. He said conservatives are in favor of “appropriate penalties,” not in locking up offenders and throwing away the key.

“More important is to see if prisons can be improved so there are more work programs, more education programs, more drug treatment programs and other things relating to reentry—counseling and mentoring—so when people go back to society they are less likely to return to crime,” he said.

“The Cost of Doing Nothing”

Kentucky formed a bipartisan group to work on corrections reform legislation as it faced the fastest-growing prison population in the country and a 41 percent recidivism rate, three-quarters of which was the result of technical probation and parole violations. Working closely with Pew, the group developed a proposal that passed both chambers with near-unanimous bipartisan support this year.

In March, Gov. Steve Beshear, a Democrat, signed into law a bill that reduces prison sentences for low-risk, nonviolent drug offenders and establishes treatment programs aimed at preventing recidivism and turning drug abusers into productive citizens.

“We think it’s landmark. We have tried for probably at least a decade to do something along these lines,” said Rep. John Tilley, a Democrat who chairs Kentucky’s House Judiciary Committee. Although they had staged subcommittee hearings and convened blue-ribbon panels, nothing happened, he said.

What was different this time? Two things, according to Tilley: Texas and Pew.

“We used the Texas example. They epitomize the tough-on-crime mentality,” Tilley said. “We worked closely with Jerry Madden. You could directly credit Jerry Madden with some of our success in Kentucky. He came to Kentucky. I don’t think you can underestimate the part Texas played in being one of the first states to enact this type of reform.”

Like Texas, Kentucky was being squeezed financially. In fiscal 2010, the state spent $440 million on incarceration, a 214 percent increase over what it spent two decades earlier. Officials estimated that number would climb by $161 million in the next decade, with a quarter of the money going to new prison beds, Tilley said.

“The cost of doing nothing would have been great,” he said. “There was a thirst in the legislature on both sides of the aisle to identify and cut out wasteful and ineffective spending.” There was general acknowledgement that something needed to change. The prison population was growing too fast. Too many offenders were returning to prison following their release, and many spent more time behind bars for violating probation or parole than they did for committing the crime that sent them to prison in the first place. Drug use in the state was rampant. But the solution wasn’t apparent to everyone.

Sen. Tom Jensen is a Republican and a lawyer from London, Kentucky, a small Appalachian town. Jobs are scarce there, he said, and many people lose hope. Often they turn to drugs. They go to prison. They come out and can’t find work. They turn back to drugs.

“I realized that something wasn’t working. You just had too much recidivism, too many people going back in. When people were let out, they’d come back to the same environment that got them into it in the first place,” Jensen said.

“I knew there were some problems, but I didn’t see a better way,” he said. “I wanted to make sure that no one thought we were being soft on crime.”

In the end, Jensen, the Senate Judiciary Committee chairman, sponsored the legislation that Beshear signed. He persuaded his Republican caucus to pass it unanimously.

“I have to admit, listening to Pew and the people they brought in, they just convinced me of a better way,” Jensen said, as he described what he called his conversion from tough on crime to smart on crime. “Hearing the changes that Pew came up with really made me change my opinion about how it should work. I’m a big believer in it. I think we can cut down on recidivism by putting money into rehabilitation and jobs programs.”

“You Helped Us Craft the Solution”

Partnering with Pew helps state officials cut through the myriad complications that often prevent change. Gelb and his team ensure that consensus is built in a way that is orderly, scientific, bipartisan and practical. Arkansas Gov. Mike Beebe, a Democrat, said as much in a letter to Pew that was also signed by the chief justice of the state’s Supreme Court and the House and Senate judiciary committee chairs after the project’s work there this year.

“Your organization brought a commitment to the facts, a mastery of the specific policies and best practices, and a dedication to seeking out all voices and opinions,” the letter said. “We knew the problem; you helped us craft the solution.” Kentucky’s new law is projected to save the state $422 million over the next decade, though both Jensen and Tilley said they expect the amount to be larger. About half the money will be reinvested into alternative programs, which, it is hoped, will result in more ex-offenders finding jobs and paying taxes and fewer of their families requiring state aid.

Even before the law takes effect, Kentucky is seeing a benefit. In May, Beshear announced that he was closing a minimum-security prison and turning it into a state police training facility. By the end of June, he said, inmates from the 205-bed Frankfort Career Development Center were to be moved to county jails and halfway houses or placed under community supervision.

“It’s the first time to my memory that we have closed a state prison facility,” Beshear said. “For years, the state police have had a new training center on the capital construction list. It would cost $35 million to build. We’re going to be able to create a modern, state-of-the-art state police training facility for about a tenth of the cost.”

While the idea of saving money on corrections reform often is what brings state officials to the table, Gelb emphasized that doesn’t keep them there. Once they review the statistics on imprisonment and recidivism, once they see the evidence about what works and what doesn’t, officials generally realize that money is not the only—and perhaps not even the most important—reason to change the system, he said.

“There’s an assumption that states are holding their noses and making what they think are bad policy choices because their budgets are forcing their hands,” Gelb said. “The budget situation definitely is bringing states to the table, but it’s not the meal. States would not be balancing their budgets on the back of public safety. The reason this is happening is that they realize there are more effective and less expensive ways to handle nonviolent offenders.”

Beshear echoed the notion. “Our priorities going in were, number one, public safety; number two, we want to mete out appropriate punishment,” he said. “But if we can do both of those things and still find a way to carry that out with less cost to the taxpayers, that was our goal.

“And,” he added, “I think we accomplished that goal.

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