Getting Criminal Justice Right

Marc Levin reviewed factors that contributed to the current state of corrections and explored how Texas and other states have moved to a commonsensical system that provides safety, equal justice and prevention. The foundational principles of the TPPF are: personal responsibility, free enterprise, limited government, and private property rights that are applied to criminal justice issues, working in collaboration with the Prison Fellowship as well as such allies as the Heritage Foundation.

Mr. Levin said the prison boom was a result of over-reaction to failed concepts of the 1960s such as eschewing personal responsibility while blaming society and low self-esteem for criminal offenses. He opined that officials underestimated the need to incarcerate violent and dangerous offenders, put insufficient focus on victims, failed to realize that better policing can reduce crime and gave into union pressures on prisons.

He noted that “the pendulum needed to swing [to more punitive principles] but went too far.” Almost 89% of corrections budgets were allocated only to jails, while programs and strategies that would keep people out of prison, such as funding for drug programs, educational programs and probation services, were eliminated. Parole officers faced an unmanageable caseload of 200 people per officer.

The Right on Crime platform seeks to restore the appropriate balance. The TPPF sought to find the balance between conservative principles and criminal justice reform to achieve 7 specific goals:

1. Public Safety

The first goal and priority is ensuring public safety. Mr. Levin indicated that rates for violent crimes have dropped significantly over the past decade. Research has shown that for many nonviolent offenders, such alternatives as problem-solving courts, faith-based programs, graduated sanctions, electronic monitoring, and treatment-oriented interventions for mentally ill offenders can produce better public safety outcomes than a revolving door of incarceration.

For many nonviolent offenders, such alternatives as problem-solving courts, faith-based programs, graduated sanctions, electronic monitoring, and treatment-oriented interventions for mentally ill offenders can produce better public safety outcomes than a revolving door of incarceration.

2. Control Spending

Incarcerating adults has a pricetag of  about $30,000 per year, while juveniles cost as much as $226,000 annually in New York City’s juvenile detention. If a first-time delinquent goes on to a life of crime, the societal cost is $2 million to $3 million. Alternatives to incarceration have been shown to be effective, but legislatures must address the fiscal disincentive to use alternatives when counties bear the brunt  of that cost.

3. The Restitution Principle and Giving Victims a Voice

Restitution is a core principle of criminal justice in the Bible and nearly every major religious tradition, Mr. Levin noted. The notion of “repaying one’s debt to society” by going to jail neither fosters rehabilitation for the perpetrator nor does it compensate victims. In an Iowa survey of burglary victims, only 7% wanted the guilty individuals to receive a prison sentence, while 75% or more said restitution, community service or paying a fine was the appropriate punishment.

Probationers pay $391 million in restitution (at least 34 times more per offender than inmates) and do 135 million service hours. Mr. Levin noted that 14 states have statutes for victim mediation, where the mediator must be chosen by both the victim and the offender. These programs have proven to reduce recidivism and increase victim satisfaction as a result of apology and completion of restitution in 89% of cases.

4. Liberty & Limited Government

Stop criminalizing capitalism, the speaker observed, pointing out that there are over 4,500 federal offenses, and states such as Texas and Arizona have more than 1,000 additional offenses, mostly related to business and recreational activities. He recommended that legislators institute procedural safeguards to slow growth in new criminal laws. By streamlining laws, the criminal justice system could function more efficiently.

5. Accountability

There is currently little accountability for outcomes from jail-related spending and scarce training for prison and probation employees. Mr. Levin said legislators must demand outcome-oriented performance measures such as recidivism, educational advancement, employment and victim satisfaction.

6. Redemption

The prisons are packed with people serving lengthy sentences with minimal programming for rehabilitation. Mr. Levin indicated that only a small number of offenders  are incorrigible, and most of the 7 million Americans under correctional control can change, as research by Byron Johnson at Baylor University has shown. In his studies, many of the most effective programs for changing the mind and heart included a faith-based component.

7. Centrality of the Family

Mr. Levin reported that unnecessary incarceration breaks up families and leads to millions of dollars in foster-care expenses and billions in unpaid child support. He recommended that legislators emphasize strategies that keep families intact. For example, rather than imprisoning mothers who commit drug offenses, providing treatment for addiction may improve the home environment so these women can keep their children.

How Texas Cut Crime and Costs

The trend in Texas is lower incarceration, lower crime rates, and lower prison costs. In 2014, that state’s crime rate reached its lowest level since 1968, exceeding the national decline and with the state avoiding $2 billion in prison costs. This was accomplished by increased availability of proven alternatives such as drug courts, expanded in-prison rehabilitation programs to reduce recidivism and increased availability of diversion programs for nonviolent and mentally ill offenders.

Problem-Solving Courts

Mr. Levin reported positive outcomes from implementing Problem-Solving Courts. Drug courts, for example, focused on high-risk offenders who would have gone to prison, show 34% lower recidivism than incarceration. He noted that Hawaii’s HOPE Court, which costs a third of drug court costs, imposes regular testing, treatment as needed, and weekend jail for the negligiblenumber of cases of noncompliance. The program resulted in 66% fewer re-offenses. Research reported in the American Journal of Psychiatry demonstrated that the use of mental health courts led to fewer incidents of total and violent re-offense.

Strengthening Supervision

Mr. Levin stressed the need to create graduated sanctions and incentives using risk/needs assessments to match offenders with the optimal programs for their needs. For example, in a Florida study, probationers who were monitored by GPS were 89% less likely to have their parole revoked. Legislators must find ways to reduce the lengthy waits for therapy in many states for substance abuse and mental health problems and to adopt effective new treatments for heroin and alcoholism addiction.

Drug Sentencing Reform

The era of punitive response to offenses led to long mandatory sentences that often were not matched to the crime. For example, under Florida’s sentencing laws, possessing 44 pills of oxycodone results in a mandatory minimum sentence of 25 years in prison, the same sentence that a child rapist would get.

Mr. Levin said legislators should require probation, treatment, and drug court in low-level drug possession cases in lieu of jail unless the offender has a prior and substantial record and the judge finds a danger to public safety. South Carolina, Kentucky, Ohio, Georgia and Arkansas have reduced low-level drug possession penalties.

Delaware, Hawaii, Kansas, Louisiana, Missouri, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Vermont, Virginia and West Virginia have all passed measures aimed at preserving prison space for the most dangerous and violent offenders.

Incentive Funding & Risk Assessment

Mr. Levin presented examples from California, Illinois, Texas, Ohio and Arizona, which have passed performance-based probation funding measures providing departments with incentive funding for fewer commitments, fewer new crimes, and more restitution. In Arizona, this measure led to 31% fewer new crimes and 28% fewer revocations of parole. The Illinois bill requires system-wide use of assessment instruments that match risk and needs to supervision strategies, tracking an offender throughout the system.

The “Earned Time” Revolution

States such as Georgia, Texas and Ohio have recently adopted or expanded “earned time” for lower-level offenders. “Earned time” accelerates release of lower-risk inmates who complete education, vocational training, treatment and work programs or participate in other productive activities. Studies of policies in New York, Wisconsin and Washington have found reduced recidivism when offenders have incentives to complete rehabilitative programs.

Expand Post-Release Supervision

A 2014 Pew study found that more than 1 in 5 inmates are released without supervision, despite the fact that a previous Pew study (2013) found that similar inmates put on parole had 36% fewer new offenses than those released without being supervised. Post-release supervision promotes continuity of care for mentally ill ex-offenders and those with addictions. Mr. Levin suggested that legislators use some savings from reduced time served to expand post-release supervision.

Remove Barriers to Re-entry

Mr. Levin noted that most prisoners eventually return home, stressing  the importance of ensuring that those discharged from prison leave with supervision, a photo ID, and a volunteer mentor. He advocated for programs that enable former offenders to obtain provisional occupational licenses when they leave. As a prison record can kill many a job opportunity, Mr. Levin’s group works to implement nondisclosure of records while also advocating legislation that protects employers from negligent hiring lawsuits.

Discussion

Sen. Mike Miller, Jr. (MD): Based on your report, it seems that Republican states are making many criminal justice reforms. Why? What about other states?

Mr. Levin: The criminal justice reform movement is happening in many states. It takes a bipartisan approach and the legislative process to make the necessary changes. New York, for example, has seen the second largest decline in its prison population among the states. They recognized that assigning sufficient police officers to the right places averted crime and was more cost-effective than jail.

Mr. Travis: The politics of crime shifted over the past 10 years. In Republican states that were “tough on crime” a decade ago, Republican governors and legislators are now in favor of reform because they see that the old, more punitive system isn’t working and isn’t cost-effective. A bipartisan coalition is essential to be able to change course. The fact that Republican governors support these modifications suggests that this is good fiscal and public policy. But criminal justice is not an executive branch issue, but it is a legislative issue.

Mr. Finneran: What about the need for quality in correctional officers and wardens? We hear about gang activity in prison and increasing hostility toward police. We often focus on teacher quality, but is anyone monitoring the quality of correctional personnel?

Mr. Travis: Billions of dollars are invested in prisons, and yet there is no accountability and no oversight. State leaders need to look inside the black box of prisons and examine the quality of life. What assistance do prisoners get? Are there GED or anger-management programs? Are inmates ready to rejoin the community when they get out of jail? Taxpayers should know what they’re getting for their tax dollars. The legislature should hold hearings on the quality of personnel in prison management and institute hiring practices that determine whether prison personnel have gang involvement or prior convictions themselves.

Sen. Joseph Scarnati (PA): One of the hidden costs of jail is the inability for people to pass a background check to get a job, even after they serve their sentences. There is a huge backlog of hundreds of requests for pardons in the Pennsylvania Board of Pardons. Consider a college kid who was convicted of shoplifting, or someone who was convicted for an action 40 years ago that today is no longer criminal. These people should not continue to be punished, although having a record is a continuing punishment.

Mr. Travis: This is an invisible punishment--legislative enactments that impose penalties long into a person’s life. In the US, there are millions of people with criminal records that are affecting their job prospects. If you have a criminal record and are African American, you have little hope of employment. Nowadays, mercy is only dispensed by the executive branch of government through a pardon. We need a legislative way for people to get off these problematical lists.

Mr. Levin:  “Ban the Box” movements to eliminate the job-application question: “Have you ever been convicted of a crime?” are gathering plenty of support across the country, and the evidence supports this. If offenders remain crime-free for 7 years after their conviction, they are as unlikely to commit another crime as a never-convicted person. In Texas, people can apply for an order of nondisclosure, which formerly required a $1,000 filing fee. Today, there is an online process with a $22 fee.

Sen. Tonya Schuitmaker (MI): The Michigan legislature passed legislation that allows the Department of Corrections to issue a certificate of employability to inmates based on their criminal history, training, skills, behavioral record and education. These certificates aim to vouch for parolees’ good moral character and their ability to engage in the workforce. With the certificate, employers are immune from negligent-hiring lawsuits.

Sen. Bill Cadman (CO): Colorado law authorizes prosecutors to establish pretrial diversion for all but specified serious sex offenses, where successful completion means dismissal and no conviction. The law’s stated purpose is “to ensure defendant accountability while allowing defendants to avoid the collateral consequences associated with criminal charges and convictions.” Another Colorado law requires judges to reduce low-level felony drug convictions to a misdemeanor conviction, if the defendant successfully completes probation and meets other statutory conditions.

Sen. Danny Martiny (LA): What about the impact of social media? It gives us the ability to get messages out very effectively, but there is no accountability for what people say. What’s the impact of social media on criminal justice reform efforts?

Mr. Travis: Social media is creating an informed and interested younger electorate that cares about the issues. Social media comments about the book The New Jim Crow: Mass Incarceration in the Age of Colorblindness kept it on The New York Times’ bestseller list for 70 weeks. The book by Michelle Alexander, a civil rights litigator and legal scholar, deals with social, political, legal and race-related phenomena in the US and applies the term 'The New Jim Crow' to the situation of African Americans and US prisons. Clearly, a growing awareness in this nation is lifting the issues of criminal and social justice to high levels of importance.

Other Criminal & Social Justice System articles.

Marc Levin
Policy Director, Right on Crime
Director, Center for Effective Justice
Texas Public Policy Foundation (TPPF)

 

For many nonviolent offenders, such alternatives as problem-solving courts, faith-based programs, graduated sanctions, electronic monitoring, and treatment-oriented interventions for mentally ill offenders can produce better public safety outcomes than a revolving door of incarceration.

 

In an Iowa survey of burglary victims, only 7% wanted perpetrators to receive a prison sentence of a year or more, while more  than 75% said restitution, community service or paying a fine was the appropriate punishment.

 

Only a small number of offenders are incorrigible, and most of the 7 million Americans under correctional control can change, as research by Byron Johnson at Baylor University has shown.

 

Unnecessary incarceration breaks up families and leads to millions of dollars in foster-care expenses and billions in unpaid child support.

 

Hawaii’s HOPE Court imposes regular testing, treatment as needed, and weekend jail for the negligible number of cases of noncompliance. The program resulted in 66% fewer re-offenses.

 

Delaware, Hawaii, Kansas, Louisiana, Missouri, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Vermont, Virginia and West Virginia have all passed measures aimed at preserving prison space for the most dangerous and violent offenders.

 

California, Illinois, Texas, Ohio and Arizona have passed performance-based probation funding measures providing departments with incentive funding for fewer commitments, fewer new crimes, and more restitution.

 

Most prisoners eventually return home. The most effective deterrents to recidivism are to have them leave with supervision, a photo ID, and a volunteer mentor.

Sen. Mike Miller, Jr.

 

“State leaders need to look inside the black box of prisons. It is a hidden world of punishment that we don’t want to look at. Standards need to be established, and there must be accountability for the billions of dollars spent on prisons.”

– Jeremy Travis

Sen. Joseph Scarnati

 

“If offenders remain crime-free for 7 years after their conviction, they are as unlikely to commit another crime as a never-convicted person.”

– Marc Levin

Sen. Bill Cadman

Sen. Danny Martiny

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