Getting Prison Numbers Down—For Good
By Malcolm C. Young | January 01, 2012 | The Crime Report
Some commentators are celebrating the decrease in prison population numbers reported for 2010 by the U.S. Bureau of Justice Statistics (BJS)—and they should.
Any attention to mass incarceration is welcome in a nation where prison reformers, community groups, advocates from across the political spectrum, major foundations, and many policymakers favor reducing prison incarceration—currently at levels that have no peacetime historical or international precedent.
Yet despite evidence that the U.S. as a whole may at last have turned away from the annual increases in state prison incarceration that began in the early 1970s, it remains to be seen whether progress toward meaningful reductions will proceed at a pace necessary to have a significant impact on the phenomenon.
The basis for broad-based and deep change in sentencing and corrections practices has not yet emerged.
More Than a Symbolic Decrease
The decrease of 9,228 prisoners, just six tenths of one percent of the more than 1.6 million in state and federal custody, is a small step. But it has symbolic value that many hope will launch further and faster decreases. There are substantive changes as well:
- In the decade starting in 2000 during which total prisoner populations increased by 12.6%, Michigan, New Jersey and New York distinguished themselves for the consistency and amount by which they decreased theirs. Inmate counts in these states fell by 22,120: -3,605 or -7.6% in Michigan; -4,777 or -16.0% in New Jersey; and, by -13,738 or -19.6% in New York.
- Prison populations decreased in each of the last three years, 2008 – 2010, in 13 other states. In eight of these the decrease exceeded -5.0%: Alaska (-18.1%); Rhode Island (-17.3%); Georgia (-9.6%); Hawaii (-8.5%); Wisconsin (-7.3%); Connecticut (-6.7 %), Mississippi (-6.1%) and Kentucky (-5.3%).
- Sentenced prisoner populations fell by a combined total of 20,805, or -2.8%, in 24 states, a considerable change from 2006, when only nine states experienced a decrease, and from 2000 – 2005 when no more than 10 to 14 states decreased in any one year.
- Growth moderated in the states in which the number of prisoners increased in 2010. The average percentage increase in the 26 states whose populations were up in 2010 was +2.2%, down from a +4.1% average percentage increase in the 33 states that experienced increases in 2007.
The evidence is far less convincing that states are on the verge of reducing prison populations at anything approaching a pace that will have an impact on mass incarceration.
In 26 states last year, prison counts increased by a total of 11,060, not an insignificant number. In 18 of these 26 states, which house 42% of the total state population, the 2010 sentenced prisoner population was the highest ever.
Illinois led the states in the number of sentenced prisoners it added in 2010 (3,257), a +7.2% increase, followed by Arkansas (+6.6%) and Iowa (+6.5%).
Sudden increases have not been unusual.
The Political Dynamic
Between 2005 and 2009, 13 states reported a one-year increase in their prisoner populations as high as or higher than Illinois in 2010. Included among these are: Alaska (+12.0% in 2006); Georgia (+8.3% in 2006); Kentucky (+12.1 in 2005 and +11.8% in 2007); Mississippi (+11.9% in 2007); New Hampshire (+8.6% in 2006 followed by +7.1% in 2007); Ohio (+7.2% in 2006); Pennsylvania (+7.9% in 2008); Rhode Island (+15.4% in 2007); and, West Virginia (+8.1% in 2006).
In many of those states, a familiar political dynamic suppressed proposals to reduce sentence length, implement back-end “early releases,” or reduce imprisonment of rule-breaking parole violators.
That is what happened in Illinois.
In 2009, a bi-partisan majority of state lawmakers agreed to a policy of further restraining the state’s use of prisons. The governor signed laws intending to increase the use of community alternatives, revise sentencing laws and implement a rational approach to risk assessment.
But in the final months of 2009, a combination of sensationalistic and inaccurate news reporting and political opportunism by members of both parties in two election campaigns demonized a misnamed “early release program” that had ended a delay in awarding credits for good conduct to which inmates were entitled.
About 1,700 inmates had been released an average of 37 days earlier. Critics charged the corrections director and the governor with endangering public safety.
The ensuing media and political firestorm pushed Gov. Pat Quinn to suspend Meritorious Good Time (MGT)” a 30-year-old good conduct program through which about 24,000 prisoners were released on average 135 days before the end of their terms
Suspending MGT drove up the prison population, causing the kind of severe overcrowding, or “warehousing” that occurred in California prisons in the runup to last May’s U.S. Supreme Court case that ordered a population reduction.
Iowa’s 6.5% increase in prisoners resulted partly from new legislation that subjects sex offenders to “special revocation” for minor infractions that were occurring at higher rates than had been anticipated.
Several states that had taken steps to cut prisoner numbers registered increases last year.
Texas was second to Illinois in the number of prisoners added:- 2,466 or an increase of +1.5%. Texas has been a target of reform. For several years, the Texas Public Policy Foundation, a conservative advocacy group, worked with State Senator John Whitmire, State Representative Jerry Madden and national experts to design parole reforms and treatment alternatives to prison.
Texas prison populations fell in 2007 and 2009 by -.5% or less–hundreds of prisoners in a state with 160,000.
The state was widely heralded as a model for controlling expanding prison populations. Texas did close a prison for the first time. But it was soon buying cots to house overflow prisoners in other prisons.
The demand for bed space never abated. Texas seems a long way from reducing sentence lengths or mandatory minimums, steps deemed necessary to reduce the population. It may be moving in the opposite direction. In response to its own budget crisis, Texas is cutting substance abuse treatment in prisons that experts believe help reduce recidivism.
Maryland introduced reforms, changed parole policies and increased services including employment assistance and substance abuse programming to decrease its prison population.
While the state had consistent decreases in its prison population in recent years, there was an increase of 407, or +1.9%, in 2010.
Kansas, a conservative state that successfully introduced bold corrections reforms, cut its prison populations between 2005 and 2008 enough to close some facilities. The trend was reversed from 2008 to 2010 because budget pressures led the state to reduce funding for post-release drug treatment and supervision.
The percent of inmates who successfully completed parole fell from 61% to 54% and the prison population increased, requiring the state to reopen a closed facility. In 2010 the prison population increased by 410 or +4.7%, to 9,051, and reached 9,236 at the end of November 2011.
Several reforms initiated in 2010 were subsequently reversed.
In Wisconsin in 2010, Republican gubernatorial candidate Scott Walker and Republican legislators campaigned vigorously against an “early release” program introduced by the previous Democratic administration.
The program, parole reforms enacted as part of a state budget bill, expanded good time credits for some prisoners. Upon winning office, Walker and a Republican legislative majority abolished the program in 2011.
In New Jersey, gubernatorial candidate Chris Christie campaigned against an “early release” bill signed in the last days of his predecessor’s administration. Christie supporters asserted that people released under the “early release” law committed two murders.
On assuming office, Christie made a show of signing new legislation that revoked “early release.”
In Indiana, a promising set of reforms grounded in a solid report by the Pew Public Safety project, endorsed by Mitch Daniels, a Republican governor with a reputation for budget management, and introduced in the legislature with bi-partisan support, ended up in the ditch after prosecutors, arguing that the initiative was the equivalent of going “soft on crime,” ginned up opposition.
The bill was pulled, and the problem of excessive incarceration was deferred for study.
In 2010 Alabama, under the leadership of Supreme Court Justice Sue Cobb, moved toward passing legislation that would have helped control the size of the prison population. The legislature developed a reform package “designed to focus limited resources on violent criminals and alleviate the state’s perpetually overcrowded prisons.”
Bills appeared to advance with broad bipartisan support. But then the sands shifted. Despite Cobb’s warning of a federal takeover and a situation similar to California, by late June all but one of seven reform bills were dead.
A legislator surmised that his colleagues were “spooked” by descriptions of 3,000 prisoners being released. A Republican lawmaker said, “We didn’t come to Montgomery to lessen sentences.”
In other states, including Connecticut, Louisiana, New Hampshire, and Oregon, opposition from prosecutors and other elected officials hampered or limited newly enacted measures intended to reduce prison incarceration..
Impact of Recession
The recession and state budget crises have not provided the basis for a broad-based and deep change in sentencing and corrections practices
According to conventional wisdom, depressed state economies would compel states to take the steps necessary to reduce prison incarceration and that the public would support reductions in prison populations in favor of lower public expenditures and reduced taxes.
What actually happened suggests a disconnect rather than a causal connection between policy makers’ fiscal concerns and their willingness to take effective steps to reduce incarceration.
Illinois is one of the more cash-strapped states. Yet legislators and policymakers unhesitatingly engaged in political gamesmanship designed to win elections and guaranteed to increase corrections populations and costs.
In 2010 Illinois led all others in increasing its prison population. But it did so at the hands of the same political leaders( executive and legislative)who daily confront the state’s severe budget deficit.
California is a classic example of policymaker disconnect between a budget crisis and the political will to reduce prison populations. In the face of crushing state budget deficits, politicians and voters over decades enacted policies certain to increase prison populations.
The legislature routinely rejected passage or implementation of reforms, serially neglecting, rejecting or overriding the recommendations of crime commissions, corrections experts, and then-Gov. Arnold Schwarzenegger. Their collective decisions outpaced the state’s financial ability to pay for construction and maintenance of the prison space and staff required to constitutionally house sentenced defendants.
Eventually, the U.S. Supreme Court affirmed a three-judge panel’s decision requiring the state to reduce its prison population by some 34,000 inmates.
The current “realignment” process intended to accomplish that is vigorously opposed by some local officials. The web and radio waves are cluttered with dire warnings against a promised flood of violent criminals.
Realignment remains a product of litigation rather than an inherent desire to reduce prison incarceration attached to a well-thought out plan.
State budget crises are proving to be double-edged swords. Tight budgets have forced states to cut some of the very programs that help reduce recidivism. Kansas and Texas are among these states and have seen prison populations increase since programs were cut.
High levels of unemployment heighten union and public officials’ opposition to closing prison facilities. Local communities have long opposed closing prisons because of the jobs, contracts and other financial benefits they provide.
With the recession, opposition to closing prisons has metamorphosed into economic development policy favoring opening new prisons.
Certainly, the recession has forced policymakers to look to corrections to reduce costs, prompting efforts to reduce incarceration in conservative as well as liberal states: Connecticut, Indiana, Texas, Michigan, New York, Louisiana, South Carolina and Mississippi to name a few.
But the economy as one factor is hardly the same as the economy as an underlying, broad-based engine driving reform. And against “tough on crime” political assaults, fiscal responsibility stands up like a candle in a hurricane.
When Reform Worked
Several states are moving ahead with carefully researched plans and strategies grounded in “best practices,” bent on reducing prison incarceration and corrections costs. Among them are Ohio, South Carolina, Georgia, Kentucky, Louisiana and Mississippi.
A review of the way in which Michigan, New Jersey and New York reduced incarceration may be helpful to policymakers elsewhere.
New York State began investing in “Alternatives to Incarceration” or ATI’s- in the 1980s. Later, the Vera Institute applied research findings and risk assessment techniques to focus services on individuals otherwise bound for jail and prison.
The Vera programs distinguished themselves from many programs that elsewhere were serving less serious defendants and offenders unlikely to have been incarcerated even without the program’s intervention.
Today scores of ATI’s throughout the state deliver services that are credited with keeping thousands of individuals out of jail and prison.
New York increased the award of “merit time” for inmates, including some violent offenders, to reduce its prison population. Advocacy organizations pressed for sentencing reforms; their efforts finally brought about an end to the harsh “Rockefeller Drug Laws” which had been some of the most punitive in the nation.
New Jersey was experiencing escalating prison populations when in 1999 a lawsuit brought by inmates prompted the state to overhaul its parole system. The governor eliminated a two-year backlog in parole hearings. Next, he revised parole revocation practices, ending among other disfavored practices automatic reincarceration for rule violations.
Families Against Mandatory Minimums (FAMM) campaigned to revise drug laws, among the more punitive in the nation, which resulted in routine confinement of large numbers of mostly minority defendants for possession of small quantities of illegal drugs.
Police were arresting, prosecutors charging, and courts were sentencing individuals with prior drug convictions whose new offense might be nothing more than to be found by police in “drug zones” proscribed to them. Prosecutors agreed to change plea bargaining practices, which lessened the impact of mandatory drug sentences.
The state passed legislation reducing sentence lengths in 2010. New Jersey’s prison population decreased from 31,493 in 1999 to 25,007, or by -20.6%, at the end of 2010.
Michigan’s prison population increased dramatically in the 1980’s and 1990’s. The state had the highest incarceration rate in the Midwest, driven in large part by long mandatory minimum sentences for drug offenses.
By the turn of the century the Department of Corrections was rapidly becoming an unsustainable financial obligation in a state with severe economic difficulties. In large part in response to advocacy led by Families Against Mandatory Minimums, the legislature rescinded mandatory life and other punitive sentences and restored discretion to judges and paroling authorities.
The number of drug offenders sentenced to prison and the number of drug offenders in prison decreased after 2002, but by 2006 it was back up. Michigan’s parole granting and revocation practices became more restrictive in classic response to several violent crimes committed by several parolees.
The state ultimately created the Michigan Prisoner Reentry Initiative (MPRI) to plan, support and sustain local programs providing alternatives and parole supervision. The initial strategy was to develop programs to which the parole board would more readily parole inmates and which would actually reduce repeat offending.
MPRI won considerable national attention, and the endorsement of legislative leaders, community organizations and the Chamber of Commerce, concerned about correction’s drain on state spending and taxes.
Some prosecutors and elected officials opposed the MPRI. Its leaders struggled against the resistance of entrenched corrections practitioners and union and political forces with an interest in keeping prisons open.
Nevertheless, in a relatively short time MPRI achieved a significant impact. Parole approval rates increased by 15% in two years and returns to prison for technical or “rule-breaking” parole violations fell 22%.
These changes were in large part responsible for reductions in Michigan’s prison population from a high of 51,544 in March 2007 to 44,113 at the end of 2010, or a total of more than 14.4%.The state closed prisons and cut corrections costs.
Eight Lessons for Reform
The reform efforts in Michigan, New Jersey and New York have common elements:
- In each state the governor supported reform efforts, appointing department heads charged with the mission of reducing incarceration.
- The state corrections director became an ardent spokesperson for the initiative.
- Initiatives were put under the administrative control of outspoken champions of the broad goal of reducing incarceration.
- Strong research capabilities were directed toward improving program design and operations with the objective of reducing incarceration.
- New York and Michigan in particular formed collaborative relationships with stakeholders, politically influential persons, and perhaps most important, local and community groups and agencies.
- Multiple, coordinated strategies targeting policies and practices up and down the ‘system.’ Successful states have recognized that no one solution or program – whether it is parole reform, “early release,” reentry programming or sentencing reform, will solve the problem of mass incarceration. Michigan, New Jersey and New York reforms differed from efforts in states such as Texas, New Hampshire, Indiana and Wisconsin which tended to focus on one program model or one stage of the criminal justice process; for example, parole decisions.
- Active involvement by local and national private non-profit advocates for sentencing reform, prisoners or communities. These groups promoted and explained the value of reform goals to government officials, the media and the public.
- A developed infrastructure of non-prison programs. New York’s ATI’s and Michigan’s’ funded community programs provided services necessary to support defendants and former prisoners in the community. The daily presence of a program infrastructure helped the Michigan, New Jersey and New York initiatives withstand political opposition.
Even if we apply these lessons from states that have succeeded in reducing prison incarceration, something is still missing.
Except among highly committed corrections staff, advocates and a handful of political leaders, it is difficult to discern evidence of a genuine consensus favoring reductions in prison populations.
So far, neither the dollar nor human costs of a massive system of incarceration and its racial and class impacts, have ignited a widespread, energized political or social movement opposite of that which resulted in mass incarceration.
This has to be a concern if there is any chance of reversing four decades of prison expansion.
Malcolm Young was founding executive director of The Sentencing Project, past executive director of the John Howard Associaion of Illinois, and is currently a Soros Senior Fellow directing a project in employment reentry at Northwestern Law School’s Bluhm Legal Clinic. He welcomes comments from readers.