A view from the states: evidence-based public safety legislation.

AuthorJames, Juliene
PositionSymposium on Overcriminalization
  1. INTRODUCTION

    Over the last three decades, incarceration became the primary weapon to combat crime. A wave of "tough-on-crime" policies expanded offenses punishable by incarceration and lengthened custodial sentences. These policies included the introduction of mandatory minimum sentencing regimes, penalty enhancements such as three-strikes provisions, and truth-in-sentencing policies requiring offenders to serve 85% of their sentences behind bars. All were designed to keep more criminal offenders in prison and off the street for longer periods of time. The unsurprising result was the exponential growth of the prison population nationwide: between 1972 and 2010, the state prison population increased 705%, from 174,379 state inmates in 1972 to 1,404,053 inmates as of January 1, 2010. (1) By 2009, it was calculated that more than one in every 100 Americans were behind bars. (2)

    The fiscal crisis of the last several years, however, has placed America's reliance on prisons under intense scrutiny: the rapid growth of prison populations has been accompanied by a corresponding explosion in state spending on corrections. More prisoners under state jurisdiction, serving longer sentences, has meant higher costs for basic necessities, such as food, inmate healthcare, and prison programming. It has led to the costly construction of more prisons nationwide and, in turn, to expanded expenditures on staffing, maintenance, and operations. Between 1985 and 2009, annual correctional expenditures from state general funds increased 700%, from $6.7 billion to more than $47 billion. Currently, state correctional agency costs nationwide are estimated at $52 billion annually. (3) A recent Vera Institute of Justice study found that the true cost of prisons is much higher, and includes costs outside of corrections budgets such as employee benefits and taxes, pensions and health care contributions, capital costs, and inmate services such as hospital care, education, and training. (4) The full price of prisons was 13.9% higher than correctional agency expenditures alone. (5)

    Spurred by ongoing budget deficits, states are seeking ways to manage correctional costs better. In the last few years, states have implemented short-term measures that have centered on operational efficiencies, including staff reductions, wage or hiring freezes, program cuts, consolidation of facilities and operations, or halting planned facility construction or program expansion. (6) These cuts only go so far. In order to reduce costs significantly, states have begun to reexamine and reevaluate their sentencing and correctional policies as a way to decrease prison costs over the long term. (7) With fewer dollars available, states are challenged to maintain public safety while coping with smaller budgets.

    In this context, overcriminalization can be understood as the incarceration of more people than (1) public safety requires or (2) states can afford. In times of fiscal emergency, legislators must grapple with overcriminalization by reexamining the criminal justice system as a whole. (8) The states profiled in this Article have acted to reduce their prison populations and costs, while at the same time investing in cost-effective strategies to enhance public safety. Seen in this light, overcriminalization ought to be a subject of great concern to policymakers and the people they represent.

    This Article examines the challenges that states have faced and the solutions that many have adopted to trim budgets without endangering public safety. Part II describes the research and data analysis that informs policy and practice reforms. Next, Part III discusses conditions necessary for comprehensive reform. Part IV then presents recent legislative efforts that focus on the use of incarceration while investing in community-based strategies to reduce recidivism and victimization. Part V lays out principles for effective implementation. Finally, Part VI examines whether states have succeeded in reducing prison populations and costs and expanding community corrections; it summarizes a recent study by the Vera Institute of Justice, observing that the potential gains of increasing reliance on community corrections may be threatened by the decreased budgets in the wake of the fiscal crisis.

    1. BACKGROUND: DATA- AND RESEARCH-DRIVEN POLICIES

      The sustained economic downturn of the past four years has forced many state and local governments to examine their budgets to identify and quantify the cost effectiveness of specific expenditures. Corrections agencies have not been spared this scrutiny. Seeking better outcomes for their communities--less crime, lower rates of recidivism, and fewer victims--states have accelerated efforts at broad-scale sentencing and corrections reforms aimed at overhauling expensive, ineffective sanctioning policies and incorporating data-driven policies and programs into agency operations. This Part explains the principles that underlie these efforts.

      Using research to guide criminal justice decisionmaking is not a new development in correctional practice. In the 1960s, New York City instituted an early version of an actuarial risk-assessment process to make pretrial release decisions. (9) A decade later, parole boards across the country began to use simple risk assessments to aid their release decisions. (10) Similarly, the Wisconsin risk-assessment system was widely adopted in the 1980s for probation and parole supervision, (11) while evaluations of the boot-camp programs prevalent in the late 1980s and early 1990s demonstrated their ineffectiveness, leading many states to abandon the model. (12) In the decades since, many criminal justice agencies and administrators have used well-structured research and evidence to make decisions that improve community safety. What has changed is that states are now using research to drive comprehensive legislative change.

      Decades of criminal justice research have identified policies and programs that are effective at reducing recidivism. (13) Collectively, this research has led to the use of what are widely known as evidence-based practices. Some of the most important findings are summarized as the principles of risk, need, and responsivity, used to determine, respectively, who should be treated, what should be treated, and how to intervene. These principles helped shape specific practices such as actuarial risk assessment, intrinsic motivation enhancement, and the application of targeted interventions.

      The risk principle states that, for the greatest impact on recidivism, the majority of services and interventions should be directed toward higher risk individuals. "High-risk" refers to those people with a higher probability of reoffending; "low-risk" people are those with prosocial attributes and a low chance of reoffending. Research demonstrates that placing low-risk people in more intensive programs can often increase their failure rates, resulting in recidivism. This is because placing those who are low-risk in intensive programming or supervision can interrupt prosocial networks (school, employment, or family) and may increase exposure to and influence of higher risk individuals. (14)

      The need principle holds that correctional treatment should focus on criminogenic factors--those needs that are directly linked to crime-producing behavior. (15) Extensive research on recidivism among the general criminal population has identified a set of factors that are most associated with criminal behavior. (16) These "central eight" factors are antisocial attitudes, antisocial associates, antisocial personalities, criminal history, substance abuse and alcohol problems, family characteristics, education and employment, and a lack of prosocial leisure or recreation. (17)

      The responsivity principle directs that treatment programs should be delivered in a manner consistent with the ability and learning style of the client. Treatment should be tailored to each offender's abilities, and interventions should be based on behavioral strategies, including cognitive behavioral techniques, skill building, or social learning.

      Efforts in recent years to develop policy based on data and research have inspired the concept of "justice reinvestment"--using data analysis to safely reduce prison populations and redirecting the dollars saved to strategies proven to decrease crime. Justice reinvestment has gained widespread acceptance as a promising approach to promoting public safety while conserving public dollars. (18) Since its introduction in Connecticut in 2003, the promise of justice reinvestment has motivated many states to undertake expansive reforms. (19) In 2011, Arkansas, Kentucky, Ohio, Oklahoma, North Carolina, and Vermont passed sweeping legislation aimed at rebalancing the use of incarceration--reserving prison for serious offenders--and making community corrections more effective by mandating the use of evidence-based practices. They joined other states that have gone through similar processes, including Connecticut in 2003; Colorado, Kansas, Rhode Island, and Texas in 2007; Oregon in 2009; and South Carolina in 2010. (20) Delaware, Florida, Idaho, Illinois, Louisiana, Maryland, Nebraska, and North Dakota have also passed bills in recent years that modify sentencing laws or support evidence-based practices in the criminal justice system. (21)

      Early in the current recession, many states focused only on achieving quick cost savings, but state lawmakers are now considering multiple, related policy changes that will have long-term fiscal impacts while directing the use of savings toward specific crime-reduction strategies. These states are aiming to overhaul expensive, ineffective sentencing policies and incorporate evidence-based policies and programs into their criminal justice systems to reach their goals of decreasing prison populations, achieving better outcomes for communities, and spending less money on corrections...

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