The Fiscal Crisis and Criminal Justice Reform

Does fiscal crisis promote criminal justice reform? From reading newspapers and magazines, one would certainly think so. State efforts to cut costs by downsizing prisons have been one of the biggest criminal justice stories in recent years — with articles like this one (on California) and this one (on Oregon and… (the list could go on) now a recurring feature in both national and local newspapers. UC-Hastings law professor Hadar Aviram has coined a term for this convergence of fiscal woes with prison reform: “humonetarianism.” And one of the more intriguing political developments of the Obama era — the sudden reversal of many right-wing politicians from their Bush/Clinton/Bush era “tough on crime” stance — can be explained in part by concerns about the runaway costs to taxpayers of mass incarceration. Yet as Malcolm C. Young notes at The Crime Report, state budget woes can also be “double-edged swords” if they lead states to slash social programs that can help keep people out of prison.

In a (relatively) new paper, UW law professor Mary D. Fan provides some timely scholarly analysis of this seeming trend of “budget-cut criminal justice,” and offers suggestions for how states might move beyond expedient cost-cutting to lasting penal reform. In turn, here’s UC-Davis law professor Elizabeth Joh, writing at the legal blog Jotwell, discussing Fan’s findings:

Some of [the recent state-level prison reform] measures are decidedly modest; about half of the states have introduced “back-end” sentence reductions in their early release and parole programs so that individual prisoners receive small adjustments in their sentences in the interest of collective fiscal savings. Wisconsin has introduced “Taco Tuesdays” to save $2 million dollars a year by shaving off ten cents per inmate meal. Other measures, though, are decidedly more ambitious. Fan draws upon many examples. In 2008, Mississippi amended a law requiring prisoners to serve 85 percent of their sentences, so that parole boards could decide to release prisoners after serving 25 percent of their sentences. In 2009, New York amended its law to give counties the discretion to establish “local conditional release committees” to review applicants for early release. In 2010, the Colorado House of Representatives passed a bill with bipartisan support that lowers the penalties for several drug possession and use crimes. …

Fan suggests public officials consciously embrace a fiscally responsible, evidence-based approach to penal policies that focuses on alternatives to automatically increasing sentences and warehousing prisoners. Unlike the rehabilitative ideal of the first half of the twentieth century, this rehabilitation pragmatism is less interested in the moral transformation of the prisoner and more concerned with cost-effective measures that nevertheless assure the public of its safety. Fan draws our attention to a moment in our history that may well be a turning point for prison policies that desperately need political will and legislative attention.

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Judge Rejects Prison Guards’ Lawsuit to Keep Staten Island Jail Open

A federal judge has thrown out a class-action lawsuit by prison guards seeking to keep open the Arthur Kill Correctional Facility on Staten Island. Set to be shuttered on December 1, the prison is one of seven targeted by Gov. Andrew Cuomo for closure. The lawsuit was filed on behalf of black and Latino guards,

contending that the closure of Arthur Kill will cause disproportionate harm to minority officers because the nearest medium security jail they can transfer to is 100 miles away from their homes.

The upstate prisons slated for closing are largely staffed by white officers who will not face a similar hardship commuting to another jail, according to lawyer Linda Cronin, who represents the minority officers.

[Judge Dora] Irizarry reserved decision on the request for a temporary restraining order, but ripped Cronin for coming to court with “nothing more than hearsay and speculation.”

Fun with the California Budget

The Los Angeles Times has a fun (frightening?) interactive tool where you can try your hand at eliminating California’s deficit, limiting yourself to options actually on the table in Sacramento (if I understand the tool correctly). Here’s my stab at balancing the budget — note: these aren’t necessarily my considered policy preferences, but just my first stab playing around with the tool with a special eye toward prisons, the fastest-growing component of California’s spending commitments.

Three things I like about the tool:

• It comes with a Q&A that punctures various right-wing canards about California’s budget woes. California’s not bleeding money on discretionary services for illegal immigrants, its taxes aren’t the highest in the nation, and depending on what program you’re looking at, California isn’t actually that generous with welfare spending: “For some benefits, California’s payouts are among the lowest in the nation. For others, the state is more generous.”
• The tool graphically illustrates how hard it would be to make the necessary cuts if you have any level of commitment to public education and welfare programs — and if you know what kinds of cuts/fee hikes California’s K-12 schools, community colleges, and universities have already endured.
• Finally, the tool shows just how much of California’s budget is currently being sucked up by its counterproductive sentencing policies. The option on the table is to reduce the prison population by 40,000 inmates, but that still leaves over 100,000 inmates behind bars and the state’s bloated prison system basically intact.

When playing around with the tool, the easiest choice for me — although it’s probably a lot harder for people who work in Sacramento — was to “release” 40,000 prisoners. This wouldn’t be that radical of a step: California’s already under a federal court order to do so, and there are viable plans out there for gradually reducing the prison population without sacrificing public safety — mainly by fixing California’s absurdly broken and wasteful parole system, which resembles that of no other state in the nation.

Washington State Will Save Money with Monthly Prison Lockdowns

Thanks to a law school classmate who alerted me to this press release (PDF) from the Washington Department of Corrections:

There will be a scheduled one-day lockdown each month between now and the end of the budget cycle, which ends June 30, 2011. The lockdowns will allow the Department of Corrections to expand the number of staff members who are impacted by temporary layoffs.

“This is just one of many unprecedented steps we’re taking to reduce spending and help the state overcome a historic budget crisis,” Prisons Director Bernie Warner said. “We will be adequately staffed to operate the prisons safely. Offenders just won’t have access to programs, education or work.”

According to the press release, every Washington state agency has been required to reduce spending by 6%, or in the DOC’s case, $53 million, this budget cycle.

Web Resources: See What Your State Spends on Corrections with the Vera Institute’s New Tool

The Vera Institute’s new interactive feature makes it easy to find out how much your state is spending on corrections, and where it’s getting the money — at least if your state is among the 44 that responded to a Vera Institute survey. The feature is the online component to a new Vera Institute report, The Continuing Fiscal Crisis in Corrections. Among other features, you can compare 2011 with 2010 spending, and find out how much federal stimulus money was poured into corrections in your state. With this new tool combined with the Sentencing Project’s interactive state-by-state map, it’s easier than ever to quickly find or confirm corrections-related data by state.

Upcoming Event: NASC 2010 on the Alabama Gulf Coast

The National Association of Sentencing Commissions (NASC) will hold its 2010 conference this August 8-10 in Point Clear, Alabama, which is on the Mobile Bay. Registration info available here. (h/t: Doug Berman)

I had the opportunity to attend some sessions of the 2008 NASC conference in San Francisco and can attest that it’s an informative, thought-provoking event that attracts a wide range of criminal justice professionals from around the country. And based on many childhood vacations, I can also attest that the Alabama Gulf Coast region is a very nice place to visit! (Although it has tragically been hit hard by the BP oil spill.) The conference agenda is available here; the theme is “Sound Sentencing Policy: Balancing Justice and Dollars”:

This year’s conference will offer plenaries, workshops and roundtable discussions on issues relating to sentencing practices and the hurdles sentencing commissions and criminal justice officials must overcome during these times of shrinking budgets and scarce resources, as well as innovative ways that states have faced these challenges. Welcoming the conference attendees will be Alabama’s Chief Justice Sue Bell Cobb, Federal Circuit Judge, Bill Pryor, former Attorney General of Alabama and leader in establishing Alabama’s Sentencing Commission, and Commission Chair, Retired Circuit Judge Joe Colquitt, Beasley Professor of Law, University of Alabama School of Law.

What We Talk About When We Talk About Private Prisons

As I noted in an earlier post, the Hawaii Legislature and Governor Linda Lingle are mired in battle over whether the state should send auditors to the private prison in Arizona where Hawaii sends most of its inmates. In this op-ed, Kat Brady tallies at least five inmate deaths at the Saguaro prison in the past two years and accuses the Corrections Corporation of America of falsifying internal audit reports to downplay troubling incidents. Like any good corporate spokesperson, CCA operations VP Ron Thompson took to the op-ed page to defend his employer against such claims. From the Honolulu Star-Advertiser:

For more than a decade, CCA has partnered with Hawaii to relieve prison overcrowding. In doing so, CCA has provided cost-effective prison space and services that include meaningful rehabilitation programs to help inmates stay out of prison once released. … To ensure that we are accountable, Hawaii’s contract with CCA sets requirements for services and performance. One requirement is accreditation by the American Correctional Association – the nation’s highest standard of professional correctional services. This means that in addition to oversight from Hawaii officials – who have full access to our prisons – we are also audited and inspected by an independent team of professional experts.

Now, I’m sure there are holes to be poked in Thompson’s argument, but I’m less interested in vilifying CCA, and more interested in interrogating the rhetorical limits of the current debate on private prisons. The argument between these two op-eds takes place in fairly practical, dollars-and-cents terms.

“The Case for Treating Drug Addicts in Prison”

That’s the headline of this Newsweek article, which is mostly informative, although it is illustrated with some pretty inexplicable charts (“Marijuana Use vs. Perceived Risk”? risk of what?). Three key takeaways:

• Most states don’t make methadone or buprenorphine easily available to prisoners (in half of states, they’re not available at all), although they’re both on a World Health Organization list of medications that should be available to prisoners at all times.
• Notwithstanding stereotypes about them, many correctional officials are not opposed to drug treatment, especially given that over half of inmates have some history of drug problems and studies show treatment lowers recidivism.
• But states are reluctant to fund in-prison treatment programs due to political and short-term cost constraints. The evidence suggests that in the long run states would actually reduce crime and save money by investing more upfront in drug treatment.

Is the War on Crime Nearing Detente?

In The Nation this week, Sasha Abramsky asks: “Is This the End of the War on Crime?” Abramsky argues that the decline in violent crime in recent years, combined with the current fiscal crisis, has opened up ideological and political space for reform. Here are just a few of the many examples Abramsky recounts:

In Texas a $600 million prison-expansion plan was shelved in 2007 in favor of a $241 million plan expanding community-based drug and alcohol treatment services, after researchers convinced legislators that the latter would lower crime rates more than expanding the state’s penal infrastructure. …

In Kansas legislators approved a large investment in drug treatment programs and services for parolees designed to stop so many offenders from simply cycling back into prison after their release. The result was a drop in Kansas’s prison population significant enough to allow the state to close several facilities.

Michigan recently reformed its prisoner-release process to allow for shorter sentences … . The state closed eight prisons as a result and invested some of the $250 million savings expected to be generated over a five-year period in an expanded network of mental health and job training services, as well as drug treatment programs.

Since I can’t imagine any politician will ever announce that the war on crime is over — surrender not being an option and victory being difficult to define, if not imagine — I think the metaphor of detente may be a helpful way to frame the seeming thaw in the heated tough-on-crime rhetoric of decades past. And detente only goes so far; after decades of a war mindset, permanent disarmament is difficult to achieve, both practically and politically. Now that states have built such a massive carceral infrastructure, which many citizens have come to take for granted, how far can they really go in abandoning it? If the economic climate improves, or crime rates rise, will states simply remobilize? Notably, while state prison populations declined last year for the first time in decades, the federal prison population keeps rising. As Doug Berman points out, it’s not surprising that “that jurisdictions that generally have to balance their budgets saw a decline in incarceration in 2009, while the one jurisdiction that just prints money went in the other direction.” 

Hawaii Legislators Call for Audit of Arizona Private Prison Where Two Inmates Have Been Killed in Four Months

After two inmate-on-inmate killings in the past four months — as discussed in this local news report — Hawaii legislators are calling for a state audit of the Saguaro Correctional Center in Eloy, Ariz., the private prison that Hawaii pays $60 million a year to house 2,000 male inmates. Saguaro is run by Corrections Corporation of America, the nation’s largest private prison corporation (or, as CCA calls itself in a somewhat Orwellian turn of phrase, “America’s Leader in Partnership Corrections”). The article notes that Hawaii used to send its female prisoners to another CCA prison, Otter Creek in Kentucky, but brought them all back after allegations of rape and abuse (I’ve posted before about rape allegations at Otter Creek). Republican governor Linda Lingle has indicated that she may veto the audit bill. The ACLU Hawaii website has information on how you can share your views with Gov. Lingle.

Apart from the issues with privatization generally, I am curious as to what readers think about Hawaii’s practice of exiling its inmates across the Pacific. Arizona is about a six hour flight from Hawaii, to say nothing of Kentucky. Even assuming an inmate’s family has the money for plane tickets, that’s not an easy trip to fit in on a weekend. According to this local article, Saguaro was built especially for Hawaiian inmates, observes Hawaiian holidays, and employs a “Native Hawaiian Cultural Advisor.” I can’t imagine all of that is too much comfort for inmates’ family members, many of whom must be effectively barred from visiting their loved ones in prison by the 3,000+ mile distance between them. Prior to the Arizona contract, Hawaii was scattering inmates to Mississippi, Oklahoma, and Kentucky, so consolidating everyone in Arizona was (supposedly) intended in part to make it easier for families to visit. But surely it’s still not that easy.

Here’s another wrinkle in all this. The first inmate who died was reportedly killed by two fellow inmates who have now been indicted for first-degree murder under Arizona law, and Arizona may seek the death penalty — although Hawaii doesn’t have the death penalty. This is just one of the many jurisdictional knots that arise when states outsource their inmates. To be clear, I don’t see any purely legal reason why Arizona shouldn’t seek the death penalty if authorized under Arizona law, but I thought it was an interesting issue to flag for readers who follow the death penalty.

At least one inmate (though the quote is anonymous) blames the violence at Saguaro on understaffing. In the same article, Honolulu prosecuting attorney Peter Carlisle apparently blames it on the fact that prisoners are inherently “unstable and dangerous,” which leads me to wonder if Carlisle thinks prisons have any responsibility to keep inmates safe. Tellingly, the article quotes a state estimate that Hawaii saves $43 million by outsourcing imprisonment to CCA. Considering the travel costs that must be involved, I would not be surprised if some of those savings are coming from leaner staffing, although maybe overhead is just exponentially lower in Arizona. Anyway, I suppose these are the sorts of things we might learn if the audit goes forward.