Katherine Robertson, Jay Neal and Jerry Madden: ”By adopting policies based on conservative principles—personal responsibility, fiscal discipline, and individual liberty—states including Georgia, North Carolina, and Texas have enacted policies proven to both enhance public safety and minimize the cost to taxpayers.”
Our policy experts Vikrant Reddy and Marc Levin wrote an excellent piece recently for The American Conservative magazine. It’s entitled, “The Conservative Case Against More Prisons” and appeared in the latest issue of the magazine.
Here is an excerpt:
There are other ways to hold offenders—particularly nonviolent ones—accountable. These alternatives when properly implemented can lead to greater public safety and increase the likelihood that victims of crime will receive restitution. The alternatives are also less costly. Prisons are expensive (in some states, the cost of incarcerating an inmate for one year approaches $60,000), and just as policymakers should scrutinize government expenditures on social programs and demand accountability, they should do the same when it comes to prison spending. None of this means making excuses for criminal behavior; it simply means “thinking outside the cell” when it comes to punishment and accountability.
The Texas Public Policy Foundation recently released a report on overcriminalization which I co-authored with my Right On Crime colleague, Marc Levin. The report, titled Engulfed by Environmental Crimes: Overcriminalizaton on the Gulf Coast, has received some attention across the internet after being the subject of features on FoxNews.com and The Washington Examiner.
In the report, we argue:
“’Ground zero’ for state-level overcriminalization may well be the United States Gulf Coast. Five U.S. states border the Gulf of Mexico—Texas, Louisiana, Mississippi, Alabama, and Florida—and between them, they have passed nearly 1,000 laws criminalizing activity along the coast. Criminal sanctions are of course appropriately applied to an individual who intentionally contaminates another person’s property. Too often, however, the activity that is governed by these myriad laws is non-blameworthy, ordinary business activity.”
We offer five recommendations to address the problem. First and foremost, we advise that states review their environmental regulations to determine whether criminal sanctions—in particular, prison—are appropriate. As former Texas state representative Jerry Madden says, ‘prisons are people we’re scared of, not people we’re mad at.’
Second, we advise states to strengthen the mens rea elements in their environmental criminal statutes. In environmental criminal prosecutions, offenders frequently lack the state of mind that would be necessary to convict for a traditional crime.
Third, we urge states to codify the rule of lenity and ensure that it is applied in environmental criminal cases. The rule of lenity is the canon of construction advising that vague criminal statutes be construed against the government and in favor of the defendant. It places a burden upon legislators to draft statutes as precisely as possible.
Fourth, we advise eliminating provisions that delegate to agencies the power to create new criminal offenses through rulemaking.
Finally, we encourage the adoption of safe harbor provisions. These provisions protect offenders from penalties if no harm has been done and the offender promptly acts to come into compliance.
The report is not limited to an abstract public policy discussion. In an appendix, the report documents several notorious incidents of overcriminalization throughout the Gulf states.
Rising prison populations in two states are stimulating legislative attention to criminal justice reform—and neither state, fortunately, is resorting to merely letting inmates out early. Instead, both states are turning to proven, evidence-based reforms that decrease unnecessary incarceration for non-violent, low risk offenders, and reforms keyed to decreasing recidivism rates.
In Alabama, Republican State Senator Cam Ward pushed sentencing reform through the Alabama Senate which would focus on non-violent offenders charged with drug and alcohol offenses, shifting the focus for those offenders from long prison terms towards community based programming that would include substance abuse programming. Senator Ward pointed to the 50 percent decrease in costs for this type of treatment as evidence that prison bed space as well as taxpayer dollars would be more efficiently prioritized in Alabama with this legislation.
In South Dakota, however, experts are seeking to pass legislation next year that would deal with higher rates of recidivism as well as low-level, non-violent offenders. After hitting record high prison populations, the state started looking at why—and realized fewer inmates were working to become eligible for parole, and recent spikes in parole violations.
The state hopes to have legislation ready in 2013 that would deal with substance abuse issues—such as drug courts and DWI courts—to stem the flow of inmates into the system, tailored treatment for female offenders, and targeted intensive reentry services for younger ex-inmates to put more of them on the track to productive, law-abiding lives.
The National Juvenile Justice Network (NJJN) brings us news that sixteen states have recently shut down traditional juvenile detention centers, or drastically reduced the number of youths being incarcerated in those facilities. All the way from New Mexico to Rhode Island, there appears to be a trend away from juvenile lock-up facilities. But what is replacing these facilities? And are these closures being made for the right reasons?
Some states are choosing community-based treatment options for juveniles in lieu of traditional detention facilities. The success of this model, demonstrated by the first states to adopt it, has encouraged others to follow suit. One such state, Alabama, diverted some of the savings from reduced juvenile detention costs to community-based programs, while simultaneously creating a grant system to supplement that funding.
Quite a few states, however, have decreasing numbers of juveniles in their detention facilities merely because fewer juveniles are ever in jeopardy of commitment to the juvenile system. California, for example, is arresting fewer people—and thus incarcerating fewer people—but that trend is not a recognition of the ineffectiveness of traditional juvenile detention facilities for some offenders. It does not suggest what the number of juveniles in lock-ups would be if the state’s arrest rate were to resurge.
Finally, still other juvenile justice systems are closing prison doors—not because there aren’t any juveniles to put in the cells—but rather because prison conditions brought about lawsuits, which required the closure of the facilities. New York was hit with Department of Justice investigations and a class action lawsuit, and responded by closing juvenile facilities. Unfortunately, funding for alternatives to incarceration has not yet gone into effect—which means juveniles in New York are stuck in between shuttered doors and postdated checks.
The NJJN has its priorities in the right place: it is focused on prioritizing incarceration for those juveniles for whom it will be most effective, and considering community based alternatives for others. A juvenile detention facility closure, however, should not be celebrated if these factors were not a contributing cause. If juvenile prisons are being closed because of lawsuits or lower arrest rates, continued positive change in the juvenile justice system is by no means certain—and perhaps not even likely.
Alabama Chief Justice Sue Bell Cobb has a warning for the legislature of her state: fix the overcrowded Alabama prison system, or the judiciary will do it for you. Like many other states’ leaders, she read Brown v. Plata, and saw a similar problem in her own state. Alabama’s prisons are currently operating at about 190% of capacity: dangerously close to the level that prompted the Supreme Court to declare California’s overcrowding levels unconstitutional and forced the release of 30,000 prisoners in a 5-4 decision. The Huntsville Times has the story.
The Plata decision along with the legislature’s failure to pass a broad sentencing reform package, have Chief Justice Cobb and a number of state senators concerned about a judicial takeover of Alabama’s prisons. Cobb estimates that a sentencing reform package pending in the state legislature could have reduced the overcrowding to 170% of capacity. The sentencing reform package was taken down by legislature, however, primarily based on a fear of appearing “soft” on crime to constituents. Senators told the Chief Justice “we didn’t come to Montgomery to lessen sentences.” In response, Senator Cam Ward pointed to a number of conservative states like Texas who have seen great success in abandoning archaic “tough on crime” principles in exchange for “smart on crime” principles.
In the end, only one of the seven bills in the reform package survived, and that one merely corrected and updated an existing law. Accusatory fingers are pointing in several directions, but regardless of who is to blame, the legislature’s failure to take care of a glaring problem in a way that would have saved millions is discouraging.
Were a judicial takeover of Alabama prisons to occur, it wouldn’t be the first time. A U.S. District court declared the overcrowded prison conditions cruel and unusual punishment in 1976, and appointed a special master to oversee a transition to a system that passed constitutional muster.
“It’s a shameful thing,” said the Chief Justice. “They knew we were locking people up for things that are not appropriate for changing their behavior, and we’re wasting money.”
Conservative advocates of criminal justice reform sometimes have their “tough on crime” bona fides questioned, but Alabama Governor-Elect Robert Bentley demonstrates why such criticisms are unfounded. On his campaign website, he listed the following as a point in his “Law Enforcement and Crime Prevention” platform:
“Non-violent criminals, and only non-violent criminals, should be rehabilitated to prevent their return to crime when they have finished serving their sentences.”
The italics are his — and they’re noteworthy. He goes on to say, “As Governor, I will ensure that criminals receive a punishment that fits the crime they committed. Unfortunately, Alabama’s criminal justice system suffers from intense overcrowding. This is because the ‘lock them up and throw away the key’ mentality does not work for individuals convicted of non-violent crimes.” Bentley was explaining to voters that he is serious about rehabilitating non-violent criminals, but he is not going to put Alabama’s public safety at risk by focusing rehabilitation and re-entry resources on violent offenders. Those offenders will remain incapacitated in prison, where they belong.
Soft on crime? Alabama voters don’t think so. They’ve elected Bentley to become their 53rd Governor, and he’ll get the chance to start enacting his smart and tough platform on January 17th.