State Efforts in Sentencing and Corrections Reform

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1 State Efforts in Sentencing and Corrections Reform Executive Summary Contact: Jeffrey S. McLeod Policy Analyst Homeland Security & Public Safety Division October 27, 2011 States continue to struggle during what is the most difficult fiscal environment since the Great Depression. Projections are that the economic recovery will be slow, forcing states to think longterm about how to do more with less. Full economic recovery may not happen until the end of the decade. With corrections among states largest expenditures, many are rethinking their approaches to sentencing and corrections practices as they seek to constrain spending. Between 2009 and 2010, at least 40 states made cuts to general fund expenditures for corrections. They are reducing staff salaries, benefits, or overtime, eliminating prison programs, and making food-service changes. Furthermore, states have been increasingly focused on finding ways to decrease overall prison populations. Given that the average prison bed now costs $29,000 a year, they are looking for ways to reduce the number of nonviolent and low-risk individuals going to prison, to move offenders who can be safely managed in the community out of prison sooner, and to keep ex-offenders out of prison through improved prisoner reentry practices. Ultimately, states aim to reduce prison populations enough to allow them to close prisons. States are accomplishing reductions through sentencing reform, efforts to reduce offender recidivism, and parole and probation reform. For example: South Carolina approved a sentencing reform package in 2010 that the state estimates will reduce the need to build and operate new prison beds by 1,786, saving up to $241 million by reducing incarceration of nonviolent offenders and more closely supervising released inmates to reduce recidivism; Nevada saved $38 million in operating expenditures by FY 2009 and avoided $1.2 billion in new prison construction by making key sentencing reforms, including expanding the number of credits inmates could earn for good time and the number of credits those on community supervision could earn for complying with conditions; and Kentucky passed legislation expected to save the state $422 million over the next decade by diverting certain drug offenders into treatment rather than prison and reserving prison space for violent and career criminals. The challenge to states is to make cuts in corrections spending while maintaining public safety. Fortunately, there now exists a significant body of research about which sentencing and corrections practices work and which do not. Research shows that implementation of evidence-

2 Page State Efforts in Sentencing and Corrections Reform based practices leads to an average decrease in crime of between 10 percent and 20 percent. Programs that are not evidence-based, on the other hand, tend to see no decrease or even a slight increase in crime. States can use that knowledge to make more informed decisions about which policies and programs to support as they seek to reduce spending on corrections. This Issue Brief provides an overview of the cost drivers behind corrections expenditures and identifies critical decision-points for states to consider as they take action to reduce costs. It also examines challenges to enacting reforms and makes recommendations for states looking to improve public safety with fewer resources. Those recommendations include: Pursue an approach to reform that involves coordination and collaboration among state executive, legislative, and judicial branches; Adopt evidence-based practices proven to reduce recidivism and eliminate programs shown to be ineffective or harmful; Target high-risk offenders and tailor sentencing, treatment, and release decisions to individual risk factors; Support mandatory supervision and treatment in the community; and Use real-time data and information for decision-making. Publication of this Issue Brief was made possible by funding from The Pew Center on the States. It seeks to build on the successes of Pew s Public Safety Performance Project and partner organizations in leading sentencing and corrections reform around the nation. What is Driving Corrections Costs? Corrections costs are driven primarily by growing prison populations, with the majority of those costs directly linked to staffing. Over the last 25 years, corrections spending has gone from approximately $16.5 billion to more than $50 billion (adjusted for inflation) an increase of 307 percent (See Figure 1). By some estimates, this rate of growth trails only state spending on Medicaid. 1 States are spending more because populations are higher, and populations are higher because more individuals enter prison and stay longer. (See Appendix, Table 1: Adult Incarceration Rates (Jail and Prison).) In FY 2008 corrections spending peaked at around $52.85 billion in real terms and is projected to decrease for a second straight year in FY While it is unclear whether this dip reflects a permanent shift in corrections practices or a temporary response to declining state revenues, projections are that the economic recovery will be slow and states will have to think long-term about how to do more with less. Full economic recovery may not happen until the end of the decade. 2 If states want to reduce corrections costs, they must find ways to reduce prison populations. That requires consideration of three essential decision-points.

3 Page State Efforts in Sentencing and Corrections Reform Figure 1: *Projected FY 2010 Expenditures Source: National Association of State Budget Officers, State Expenditure Reports: Who Goes to Prison? In recent years, a higher percentage of low-risk, nonviolent offenders are being sentenced to prison, as opposed to probation or other supervision options. According to a recent report, nonviolent offenders make up more than 60 percent of prison and jail populations. 3 Furthermore, nonviolent drug offenders account for about one-fourth of all offenders behind bars, up from less than 10 percent in How Long Do Inmates Stay in Prison? Another primary driver of corrections costs is the length of time inmates remain in prison. The cost of housing a prisoner is significant, and many states are facing the increased fiscal consequences of their sentencing policies such as truth-in-sentencing requirements, three strikes laws, and mandatory minimum sentences. Over the last two decades, those policies have led to a steady rise in the amount of time that an offender spends in prison. In 1993, the average time state inmates served before their first release from prison was 21 months; in 2009, it was 29 months. 5 According to the Pew Center on the States, in FY 2008 it cost an average of $78.95 per day to incarcerate an individual. According to the Bureau of Justice Statistics, at year-end 2009 there were approximately 1.3 million individuals incarcerated in state prisons. 6 Using these figures, the cost associated with housing prisoners for an additional 8-months is approximately $25.3 billion. 7 Additionally, the growing length of time prisoners remain behind bars is especially concerning given the graying of the nation s prison population. Between 1992 and 2001, the number of state and federal inmates aged 50 or older rose 173 percent and they continue to make up a larger proportion of the overall prison count. 8 States devote approximately 10 percent of prison

4 Page State Efforts in Sentencing and Corrections Reform spending to inmate health care. 9 However, that figure alone does not reveal how much more they spend to meet the needs of elderly prisoners compared to younger prisoners. States spend $29,000 per year on the average inmate but elderly prisoners cost an average of $70,000 annually to incarcerate. 10 How Many Offenders Return to Prison After They Are Released? Corrections costs also are largely driven by offender recidivism, the rate at which offenders return to prison after release. Nationally, approximately 45 percent of released inmates were reincarcerated within a three-year period for committing a new crime or for a technical violation of terms of their supervision, such as missing required drug tests or scheduled appointments. 11 Some estimates suggest that at least one-third of all new prison admissions are for violations of community supervision and, of those, one-third are for technical violations. 12 By reducing recidivism rates, states can reduce prison populations and save on the associated costs of incarceration. In addition, communities stand to benefit from offenders who can pay child support, taxes, and victim restitution. State Responses to Increasing Corrections Costs Between 2009 and 2010, at least 40 states reduced spending from their general funds for corrections. 13 As a result, corrections departments have had to make operational adjustments, such as lowering salaries, benefits, or overtime for staff, eliminating prison programs, and decreasing spending for food services. 14 While operational adjustments have led to significant savings for states, the largest cost savings only comes with closing prisons. In 2010, California closed three minimum-security prisons for $15 million in savings per year, Georgia closed the 700-bed Bostick State Prison for annual savings of $6.7 million, Maryland approved the closure of a 350-inmate minimum-security prison to save $12 million, and North Carolina authorized the closures of seven minimum-security prisons for savings of $22 million. 15 Since 2005, Michigan has closed 19 facilities, saving the state around $315 million. 16 In general, states have implemented reform efforts to reduce prison populations that focus on each of the decision-points mentioned above (i.e., who goes to prison, how long they stay, and how many individuals return to prison). Those actions fall into three broad categories: Sentencing reform; Reducing offender recidivism; and Reforming parole and probation. Sentencing Reform A number of states have amended their sentencing laws, guidelines, and practices in an effort to move nonviolent offenders out of the corrections system more quickly, while reserving prison space for offenders who pose a greater threat to public safety. Those reforms include adopting alternatives to incarceration, revising criminal codes to downgrade offenses or reclassify specific crimes, repealing or amending mandatory sentencing laws, and instituting earned time and good time credits to accelerate the release of lower-risk offenders from prison. 17 Florida, Louisiana, Vermont, Virginia, and Washington are states whose sentencing reforms have included adopting alternatives to incarceration. Vermont passed legislation requiring a sentence of probation for misdemeanors and nonviolent felonies. 18 Louisiana authorized courts to

5 Page State Efforts in Sentencing and Corrections Reform sentence offenders to home confinement instead of prison time. 19 Florida appropriated funds to help support a statewide program that diverts nonviolent offenders to employment assistance and counseling services, 20 and Washington developed the Family and Offender Sentencing Alternative program, which incorporates parenting classes, substance abuse and mental health treatment, and life skills classes for nonviolent offenders who have custody of children under In Virginia, felony theft, fraud, and drug offenders are diverted from prison if they are determined to be low-risk based on a risk-assessment instrument that takes into account the basic elements of their crimes and individual characteristics. 22 More than 1,400 of those offenders were sentenced to community supervision rather than prison in South Carolina revised its state criminal codes. In 2010, the state passed legislation that reduced the maximum penalty for nonviolent second-degree burglary from 15 years to 10 years; increased the property value threshold from $1,000 to $2,000 for all felony property crimes; and provided that individuals convicted of a first or second drug offense other than trafficking offenses are eligible for probation or a suspended sentence, parole, work release, and good conduct and other credits. 24 States such as Delaware, Minnesota, New Jersey, New York, and Rhode Island have amended state laws that imposed mandatory sentencing. 25 New York overhauled its so-called Rockefeller Drug Laws 1970s-era statutes that led to an increase in drug convictions and a surge in the state s prison population by eliminating mandatory minimums and reinstating judicial discretion in low-level drug cases. 26 Similarly, Minnesota allows judges to deviate from mandatory-minimum sentences upon a motion by the prosecutor in low-level drug cases. 27 Delaware passed legislation giving the court discretion to alter sentences of one year or less in cases where an individual has a serious medical need, requires continuous treatment, and does not pose a substantial risk to the community. 28 Other states, such as Pennsylvania and Washington, have adopted earned time and good time prison policies as part of their reform efforts. Inmates may be able to shorten their prison terms by accruing earned time if they complete rehabilitation, vocational training, or other productive activities. Good time credits are awarded to individuals who demonstrate good behavior and follow prison rules. Those incentives can improve inmate behavior, free up prison space, increase the odds that individuals will not reoffend once they are released, and save taxpayer dollars. Pennsylvania passed a law in 2008 allowing certain nonviolent offenders to reduce their minimum sentence by up to 25 percent if they complete prescribed evidence-based programs proven to reduce recidivism, demonstrate good conduct, and maintain a satisfactory work record. 29 Washington increased the amount of good time available to certain nonviolent drug and property offenders from 33 percent to 50 percent of the total sentence. 30 Overall, the law is estimated to have saved $7,200 per offender through shorter prison terms and avoided prison operating and capital costs, lowered recidivism rates and the benefits of reduced crime, and the greater productivity of released inmates who returned to the workforce. 31 (For another example, see text box, How Nevada Avoided the High Cost of State Prisons ) Indeed, as the Washington example illustrates above, sentencing reforms can mean significant savings for states. South Carolina approved a sentencing reform package in 2010 estimated to reduce the need to build and operate new prisons by 1,786 inmates, saving the state up to $241 million by reducing incarceration of nonviolent offenders and more closely supervising released inmates to reduce recidivism. 32 Kentucky expects to save $422 million over the next

6 Page State Efforts in Sentencing and Corrections Reform decade by, among other measures, diverting drug offenders to treatment rather than to prison. 33 Recently passed legislation reduces prison time for low-risk, nonviolent drug offenders caught with small amounts of drugs and reinvests savings from reduced prison costs into drug treatment for offenders who need help. 34 At the same time, the law seeks to strengthen probation and parole policies by requiring that decisions be based on an offender s individual risk factors. In recent years, states have begun to see declines in prison populations due to sentencing reform efforts. 35 Between 2008 and 2010 prison populations declined in 26 states. 36 Fortunately, research shows that less incarceration does not necessarily mean more crime. In fact, over the last decade 19 states reduced both prison populations and crime rates. 37 A look at trends in New York provides an example. In 2000, New York had a prison population of approximately 70,000. Since then, the population has dropped to below 60,000 while over the same period of time crime rates declined by 29 percent. 38 Reducing Offender Recidivism To tackle recidivism rates, states have adopted a variety of efforts to prevent offenders from committing new crimes or violating terms of their release. For example, Hawaii s HOPE program has reduced probation violations by drug offenders and others at high risk of recidivism through swift, predictable, and immediate sanctions. If probationers violate terms of their probation, they are immediately arrested and receive a short jail How Nevada Avoided the High Cost of State Prisons In 2007, Nevada projected a prison population increase of more than 60 percent by 2012 that would have cost taxpayers more than $2 billion. But the legislature voted to enact several policy reforms that in the end saved Nevada $38 million in operating expenditures by FY 2009 and helped it avoid $1.2 billion in new prison construction costs. Key reforms included: term. The length of stay increases for subsequent violations and repeat offenders are required to attend residential treatment. 39 Research shows that these types of programs can be effective in reducing both recidivism rates and costs. 40 (See text box, Hawaii s HOPE Program. ) Michigan targeted recidivism among its parolees and launched the Michigan Prisoner Reentry Initiative (MPRI) in MPRI s mission is to equip every released offender with the tools to succeed in the community and it incorporates individualized programming, transition plans for prisoners prior to parole, and graduated sanctions to manage parole violations after release. 42 To date, the program has helped the state reduce its prison population by 12 percent and close more than 20 correctional facilities. 43 Increasing program credits awarded for in-prison education, vocational, and substance abuse treatment; Expanding the number of credits inmates could earn for good time and the number of credits those on community supervision could earn for complying with conditions; and Reinstating an advisory commission to review sentencing and corrections policies for effectiveness and efficiency. Source: Prison Count 2010: State Population Declines for the First Time in 38 Years, Pew Center On the States, The Pew Charitable Trusts, March 2010, 4.

7 Page State Efforts in Sentencing and Corrections Reform Hawaii s HOPE Program In 2004, Hawaii Circuit Court Judge Steven Alm created Hawaii s Opportunity Probation with Enforcement (HOPE) program, which operates on the principle that punishment is far more effective if it is swift, certain and proportionate than delayed, unpredictable and severe. Rather than imposing prison time on offenders only after they repeatedly fail to meet the conditions of probation, sanctions are immediate and predictable. Failure to comply means a few days in jail, typically over a weekend to allow probationers to still work during the week. A National Institute of Justice study found that HOPE probationers were 72 percent less likely to use drugs and 61 percent less likely to skip appointments with their supervisory officer. Moreover, they were 55 percent less likely to be arrested for a new crime and 53 percent less likely to have their probation revoked. Oregon developed a comprehensive approach to reducing offender recidivism that targets inmates the day they enter prison. 44 At intake, inmates receive risk and needs assessments. During incarceration, they receive targeted case management. Within six months before release, inmates begin a detailed transition planning process to get ready for life outside of prison. In the community, parolees and probationers are subject to swift and certain sanctions if they violate the terms of their conditions. Rather than immediate re-incarceration, probation and parole violators face an array of graduated sanctions in the community. Oregon experienced a 32 percent drop in its recidivism rate between 1999 and Further, according to a report from The Pew Charitable Trusts highlighting 41 states, Oregon recorded the lowest overall recidivism rate in the country at 23 percent among offenders released in Reforming Parole and Probation Many states are reforming parole and probation practices as a part of a broader strategy to reduce recidivism. In addition, they are reforming parole and probation practices in an effort to use resources more effectively and reduce their reliance on incarceration. Alabama, Kentucky, and Missouri have reformed how they sanction probationers and parolees who violate conditions of their supervision. Missouri uses a risk-assessment tool to categorize parolees and help set supervision levels. If parolees or probationers violate the terms of their supervision, they are subject to a range of sanctions, including verbal reprimands, modification of conditions of release, residential drug treatment, or a brief stay in jail. 47 The state s recidivism rate has dropped significantly, from 46 percent in FY 2004 to 36 percent in FY For nonviolent probationers who commit technical violations, Alabama limits revocation to 90 days of incarceration, 49 and Kentucky parole officers now have discretion to confine those who violate the technical conditions of their parole to county jail for up to 10 days and no more than 30 days within a one-year period. 50 Sources: Angela Hawken and Mark Kleiman, Managing Drug Involved Probationers with Swift and Certain Sanctions: Evaluating Hawaii s HOPE, National Institute of Justice, December 2009; One In 31: The Long Reach of American Corrections, Pew Center on the States, The Pew Charitable Trusts, March 2009, 27. (December 2009). North Carolina passed legislation to make probation more effective, increase public safety, and reduce crime. 51 The law gives probation officers the ability to respond to probation violations more swiftly and put offenders in jail without a court hearing for up to three days. 52 The law also restructures how people on probation are monitored. It places greater emphasis on directing supervision and treatment resources to those who are at highest risk of reoffending. Those

8 Page State Efforts in Sentencing and Corrections Reform reforms are expected to help avert a projected prison population increase and save more than 3,600 beds by FY 2017 for savings of over $290 million. 53 Savings will be reinvested into probation and post-release supervision and expanding access to drug treatment. Other states have incorporated earned time credits into their probation practices. Arizona did so by passing the Safe Communities Act after a 2008 analysis estimated that the state prison population would grow by 50 percent in a decade and require the state to build space for 17,000 new prison beds at a cost of $2 billion to $3 billion. 54 A high rate of probation failures was identified as an important contributor to this growth. Before the act s passage, the state was sending around 4,000 probationers back to prison each year for violating supervision terms, at a cost of approximately $100 million. 55 To reduce recidivism rates, the law helped focus probation supervision on high-risk offenders by creating earned time credits for probationers who comply with the terms of their supervision. 56 Under the law, offenders can earn 20 days off of their probation term for every month that they meet restitution payments and community service assignments, but they lose those credits if they are arrested. Consequently, lower-risk offenders who meet their obligations earn release earlier and probation officers can focus their resources on higher risk offenders. In 2010, Arizona released data showing that the number of probationers convicted for new felonies had declined by 31 percent, and that the overall number of probation revocations had dropped by 29 percent since passage of the Act. 57 Moreover, these declines occurred despite the state s overall increase in the number of offenders on parole, from 82,576 to 85,144, and despite the increase in the ratio of probation officers caseloads, from 60:1 to 65:1. 58 Challenges to Enacting Reforms Reforming sentencing and corrections practices can help states manage rising costs, but enacting reforms may require overcoming significant challenges. Overcoming the Status Quo As governors attempt to enact reforms and reduce budgets, one of the challenges they face is longstanding corrections practices based on custom, culture, and habit rather than research. Such practices may make it difficult to drive reforms. In addition, prisons provide jobs to communities, and governors may have to make painful and unpopular decisions about which prisons to close and which cost-cutting policies to support. For example, probation and parole leaders in New Hampshire opposed a state prison reform bill that aimed to reduce the state s inmate population by moving offenders out of prison and into community supervision. 59 Opponents worried that the bill would leave the already burdened state workers responsible for more offenders than they could supervise. But through the use of actuarial risk assessments conducted by prison staff members, the state corrections department expects that parole officers will be able to accommodate a larger community corrections population by adjusting their workloads and focusing primarily on parolees most likely to reoffend. 60 Furthermore, by reinvesting the estimated $7 million in savings that the law is projected to generate into substance abuse and mental health treatment programs, the state anticipates that recidivism rates will fall, freeing up even more resources. The bill passed in 2010 with support from leaders of all three branches of state government. 61

9 Page State Efforts in Sentencing and Corrections Reform Limited Capacity to Provide Community Supervision and Treatment Programs As states reduce the size and budgets of their prison systems, they will increasingly rely on less expensive community-based supervision and treatment programs. However, with government at all levels confronting budget shortfalls, states need to adopt innovative funding strategies to improve their capacity to supervise and provide treatment for offenders. California uses performance incentive funding to drive down offender recidivism. The state rewards counties that reduce recidivism by sharing a portion of the costs avoided by the state by not having to incarcerate those probationers. The lower a county s failure rate, the more state funds it receives. 62 That approach encourages counties to supervise offenders in the community, rather than return them to state custody, and it helps the state save money that would otherwise be spent on incarcerating probationers. 63 Building Public Support for Corrections Reforms For states to reduce prison populations, they must assure the public and the media that costcutting measures will not jeopardize public safety. Those efforts may be helped by growing public support for sentencing and corrections reform. A recent national poll of public attitudes on crime and punishment found: Prison is not always required and voters recognize the important role that probation and parole can play in reducing crime. There is strong support for reinvesting prison savings in alternatives that hold offenders accountable. Nearly 9 out of 10 voters (87 [percent]) favor reducing prison time for low-risk, nonviolent offenders and reinvesting some of the savings to create a stronger probation and parole system that holds offenders accountable for their crime. 64 The poll, conducted by Public Opinion Strategies and the Benenson Strategy Group for the Pew Charitable Trusts, also noted strong support for the notion of better returns on public safety investments. To build support for reforms, policymakers should frame the discussion in terms that resonate with the public. For example, the public tends to be more receptive to phrases such as mandatory supervision, rather than community supervision, to describe non-prison sanctions. A 2007 voter poll in Texas revealed that 83 percent of respondents preferred a mandatory intensive treatment program as an alternative to prison for low level offenders, knowing that the diversion of lower level offenders could help avert $1 billion in new prison costs. 65 Ensuring that Policy Decisions Are Based on Current, Accurate, and Complete Information A challenge many states face is that corrections information is unavailable, incomplete, inaccurate, or outdated. Governors and other state policymakers need access to reliable information to craft effective policy solutions to public safety challenges. Without a standardized approach to collecting and sharing information, it is difficult to establish accurate baselines for performance measurement. If the performance of a program cannot be measured, policymakers cannot know which programs work and should be funded, and which are ineffective and should be defunded. Maryland applies a rigorous data-driven model known as StateStat to promote government accountability and efficiency. 66 The program is a performance-measurement and management tool that requires agencies to report performance data to the state. A team of analysts evaluates the data and creates executive briefing memos for members of the governor s team. The governor

10 Page State Efforts in Sentencing and Corrections Reform and his executive staff use that information during bi-weekly meetings with cabinet secretaries to discuss agency performance and priority initiatives. Those meetings hold state managers accountable and help drive improved agency outcomes. Strategies to Improve Chances for Success States can take a number of actions to reduce corrections expenditures and improve public safety. An important first step is to examine management practices, staff qualifications, and performance systems to ensure that the organizational capacity exists to encourage and support reforms. In addition, there are a number of strategies states can adopt to enact reforms: Pursue a cross-governmental approach to reforms; Adopt evidence-based practices that reduce recidivism and eliminate programs shown to be ineffective or harmful; Target high-risk offenders and tailor sentencing, treatment, and release decisions to individual risk factors; Support mandatory supervision and treatment in the community; and Use real-time data and information for decision making. Pursue a Cross-Governmental Approach to Reforms Through inter-branch coordination, states have been able to make significant reductions in spending while ensuring the reforms they enact reduce crime and promote public safety. State executive, legislative, and judicial branches each play a different role in shaping a state s criminal justice system, and when leaders from each branch work together with a common purpose, they can improve offender outcomes and maximize public safety. Alaska, Arkansas, Kentucky, and Ohio have created inter-branch entities to lead state reform efforts in addressing rapidly growing prison populations and rising corrections costs. Arkansas formed a bipartisan working group composed of state leaders from the legislative, executive, and judicial branches, as well as local government and law enforcement officials. 67 The working group reviewed Arkansas s sentencing and corrections data, existing community supervision practices and policy, and examples of best practices from other states. Based on its analysis, the working group developed a comprehensive set of policy recommendations to improve public safety at lower cost to taxpayers. Those recommendations led to passage of the Public Safety Improvement Act, which is projected to save Arkansas $875 million in prison construction and operation expenses through A portion of the savings will be reinvested in communitybased supervision, sanctions, and services designed to improve public safety and hold offenders accountable. Key among the law s reforms are protecting public safety and reducing recidivism by strengthening community supervision; improving government efficiency and effectiveness through data collection and performance measurement; and concentrating prison space on violent and career criminals. 69 To bring its rising prison population under control and address a high rate of offender recidivism, Alaska formed the Alaska Prisoner Reentry Task Force in State criminal justice data showed that two out of three prisoners returned to custody within three years of release, which was greatly contributing to the state s prison population growth. 71 The task force includes a broad range of state, local, and citizen members who are either stakeholders in developing solutions to

11 Page State Efforts in Sentencing and Corrections Reform prisoner reentry challenges or who represent a constituency impacted by the state s criminal justice system. 72 In early 2011, it released a five-year strategic prisoner reentry plan outlining steps that state and local policymakers can take to improve prisoner reentry outcomes. The task force s recommendations are expected to help the state avoid building additional prison space over the next 10 years. In Ohio, prisons were 33 percent over capacity and the state s prison population was projected to grow by an additional 3,000 inmates by Over the course of 18 months, a bipartisan, inter-branch task force composed of the governor, chief justice, and legislative leaders developed policy recommendations for the General Assembly that led to passage of legislation expected to help the state avert all projected growth through 2015 and save $500 million in prison construction and operation costs. In addition, the law will help generate $46 million in corrections savings by 2015 from reduced prison populations. 74 From these savings, the state will reinvest $20 million over four years by providing funding and incentive grants for improving felony probation supervision. 75 Kentucky s bipartisan, inter-branch task force included members of the Kentucky legislature, the chief justice of the Kentucky Supreme Court, the secretary of the Justice and Public Safety Cabinet, a county executive, a former prosecutor, and a former public defender. 76 The work of the task force led to passage of a justice reform bill in 2011 that is projected to save the state $422 million over the next decade. 77 Adopt Evidence-Based Practices Proven to Reduce Recidivism and Eliminate Programs Shown to be Ineffective or Harmful Research shows that implementation of evidence-based practices leads to an average decrease in crime of between 10 percent and Key Questions to Consider: 20 percent. 78 Programs and policies that are evidence-based are those that have been proven to work by research and scientific evaluation. By contrast, programs that are not evidence-based tend to see no decrease or even a slight increase in crime. 79 For example, research has cast doubt about the effectiveness of programs such as Scared Straight, designed to deter delinquent youth from crime by showing them the harsh reality of prison life. What is driving corrections costs in your state (e.g., parole violations, length of stay, nonviolent offenders)? Is your state s corrections and sentencing policy focused on reducing offender recidivism? Are your state s correctional programs evidence-based and proven to work by research and rigorous scientific evaluation? Can they demonstrate their impact on recidivism reduction and is there a positive return on taxpayer investment? Is your state using corrections dollars to focus on the highest risk and most violent offenders? Is your state adequately assessing the risk of individual offenders? Does your state know the effectiveness of its various crime prevention programs? Do you know the cost-benefit tradeoffs of various programs and approaches? Are policy decisions based on real-time, accurate data and information? Is your state holding low-risk, nonviolent offenders accountable through supervision and treatment programs?

12 Page State Efforts in Sentencing and Corrections Reform At-risk youths participating in Scared Straight tour prison facilities and hear personal stories from prisoners on the theory that the grim experience will frighten them away from crime and encourage them to change bad behavior. 80 Those programs were used throughout the country as a get-tough response to juvenile crime. However, research showed that those types of programs are not only ineffective but also harmful. An evaluation of nine Scared Straight-type programs concluded that they failed to deter crime and led to more offending behavior. 81 Research has also shown that boot camps, gun buybacks, peer counseling, summer jobs for at-risk youth, and neighborhood watches may not be effective crime prevention programs. 82 Thus, states should examine their own portfolio of recidivism reduction programs and determine whether they are evidence-based, supported by research, cost effective, and impactful. (See text box, Key Questions to Consider ) To identify what works, the Washington State Institute for Public Policy (WSIPP) reviewed 291 evaluations of programs to reduce recidivism in adult offenders and found that the following initiatives significantly lowered recidivism rates: 83 Adult drug courts (by 10.7 percent); Cognitive-behavioral treatment (by 8.2 percent); Intensive supervision with treatment-oriented programs (by 21.9 percent); and Employment training and job assistance in the community (by 4.8 percent). By contrast, the following programs had no statistically significant impact on recidivism rates: 84 Jail diversion programs for offenders with mental illness; Psychotherapy/counseling for sex offenders; or Adult boot camps. It is important to note here that proven programs may demonstrate seemingly modest results. For example, programs with a statistically significant impact may only reduce recidivism by 5 percent to 15 percent. However, even those small reductions, given compounding gains across a corrections system over time, can mean significant cost savings for a state. 85 States are beginning to use this knowledge in their decision-making practices. For example, Oregon adopted a statute requiring that at least 75 percent of the Oregon Department of Corrections program funding be used to support programs that are evidence-based. 86 In Washington, the state legislature directed its institute for public policy, WSIPP, to study the financial savings to state and local governments of implementing evidence-based treatment and corrections programs. 87 WSIPP found that evidence-based programs reduced recidivism by up to 17 percent and resulted in cost savings of $4,359 to $11,563 per participant. 88 Kansas decided to combat recidivism with an earned time credit program for offenders, which studies have shown can reduce crime rates, recidivism, and costs. 89 Under the program, lower-risk inmates who complete one of several eligible programs, including substance abuse treatment or vocational training, can earn up to 60 days off of their sentence. 90 Since its inception in 2007, crime is down 35 percent among parolees who participated in the program, and parole revocations are down 45 percent. 91

13 Page State Efforts in Sentencing and Corrections Reform Target High-Risk Offenders and Tailor Sentencing, Treatment, and Release Decisions to Individual Risk Factors The evolution of validated actuarial-based risk-assessment tools allows states to identify those individuals at greatest risk of reoffending. Those tools provide essential information to the courts and corrections agencies that make sentencing, treatment, and release decisions. By predicting more accurately who will reoffend and the level of harm they could cause, officials can make better informed decisions about how best to allocate limited corrections dollars. Research demonstrates that to reduce recidivism rates and improve public safety, states should focus supervision and treatment on higher risk offenders being released into the community, rather on lower risk offenders. 92 For low-risk offenders, supervision and interventions should be minimal. 93 Virginia uses a risk-assessment instrument for felony theft, fraud, and drug offenders that takes into account the offender s individual characteristics as well as elements of the crime. 94 Otherwise prison-bound individuals whose assessment scores are low are eligible for communitybased alternatives to prison. Virginia also uses a pretrial risk-assessment instrument to identify the likelihood that a defendant pending trial will fail to appear in court and assess the danger they pose to the community. 95 The instrument takes into account eight risk factors, including primary charge type (felony or misdemeanor), pending charges, criminal history, two or more failures to appear in court, two or more violent convictions, length of current residence, employment and primary caregiver status, and history of drug abuse. Based on those risk factors, defendants are scored and assigned one of five risk levels: low, below average, average, above average, and high. If a defendant is low risk, they are recommended for release into the community with limited or no conditions pending trial. 96 Those who receive average to above average scores may be released subject to various conditions, community resources, and/or interventions. Finally, those who are determined to be high risk are not recommended for release. Mississippi s use of a risk-assessment tool in parole helped it avoid a projected increase in its prison population. 97 In fact, the state saw a decrease in its prison population after implementing the tool. By assessing each parole case individually with help from a new risk instrument, the state s parole board was able to modestly increase its parole grant rate of nonviolent offenders, while at the same time maintaining the overall rate of parole revocations. Of the nearly 3,100 prisoners released in , only 121 were returned to custody as of Of those, all but five were returned for technical parole violations, not new crimes. The research is clear about several factors. First, different interventions are required for offenders with different risk factors. The most effective sentencing and corrections practices target offenders, not just the offenses. For example, imposing burdensome pre-trial release conditions on low-risk defendants can actually decrease the likelihood that they will appear in court, whereas imposing such conditions on high-risk defendants can increase the likelihood of pretrial success. 98 Second, states should target their efforts on high-risk offenders and work to move low-risk offenders out of the system as quickly as possible. Research shows that over-supervising offenders who are low-risk can actually cause harm. 99 This phenomenon may be explained by low-risk offenders being more exposed to higher risk offenders or by a disruption of prosocial factors that make them lower risk, such as good relationships with family members and coworkers. 100

14 Page State Efforts in Sentencing and Corrections Reform By predicting more accurately who will reoffend and the level of harm they might cause, officials can begin to make more informed decisions about how best to allocate limited corrections dollars. Support Mandatory Supervision and Treatment in the Community As states reduce corrections costs, they also need to identify strategies that enhance local capacity to provide supervision and treatment. The average prison bed costs states $29,000 per year. By comparison, it costs only about $1,250 per year to manage probationers in the community. The most effective recidivism reduction programs are those that include both supervision and treatment components. In 2007, Texas faced a projected prison population increase of 17,000 inmates over a five-year period. 101 Instead of spending nearly $2 billion to build new prisons, policymakers reinvested $241 million in a network of residential and community-based treatment and diversion programs. 102 By expanding sentencing options for new offenses and sanctioning options for probation violators, this approach helped prevent the large projected prison population increase at a small fraction of the cost of building and operating more prisons. 103 Use Real-Time Data and Information for Decision Making Current, accurate, and complete corrections information is essential for making decisions and driving effective reforms. Decision makers at all levels require accurate and timely information to improve the effectiveness of sentencing and corrections practices. States that are most successful at reducing recidivism and criminal justice costs will be those that are able to use corrections information effectively. Georgia uses real-time information to drive improvements in its parole system by tracking parole officer activity and offender parole completion rates. 104 Based on an actuarial analysis of more than 6,300 parole completions between July 2000 and January 2001, Georgia identified several risk factors such as age, offense type, and prior criminality that best predicted the likelihood that an offender would commit a new crime while under supervision. 105 The state used that information to develop an automated risk-assessment instrument that employs four key dynamic factors, including positive drug screens, residential moves, the number of days employed, and the number of months of program attendance. The instrument recalculates risk for each parolee daily and notifies the parole officer by when the risk level increases or decreases. 106 For example, if a parole officer records an offender s failed drug test on Tuesday, a new risk score is recalculated overnight. If the new risk score is above or below a predetermined high-risk threshold, the parole officer receives an notification on Wednesday. 107 Armed with that information, the parole officer can tailor supervisory activities by focusing on the factors directly related to completing parole. Such granularity allows for greater accountability and more immediate mitigation of problems when they arise. To inform decision making at the local level, states can also use global position system (GPS) monitors, rapid-result drug tests and ATM-like reporting kiosks to monitor the whereabouts and activities of offenders in the community. Those tools provide more accurate information faster and help ensure greater offender accountability. Florida has used electronic monitoring of offenders in the community for at least 20 years. Although electronic monitoring s ability to reduce recidivism is still debated, a study of Florida offenders placed on electronic monitoring found a 31 percent decline in the risk of revocation or absconding compared with offenders on other forms of community supervision. 108

15 Page State Efforts in Sentencing and Corrections Reform Conclusion As states struggle to balance their budgets, they are looking for new ways to drive greater efficiencies in government and squeeze more out of each dollar they spend. With corrections among the fastest growing categories of state expenditures, it is an area that is receiving increased scrutiny from states. States want to know: Can they cut corrections costs without sacrificing public safety? By adopting evidence-based practices and a cross-governmental approach to reform, focusing resources on high-risk offenders, supporting mandatory supervision and treatment in the community, and using real-time data and information to drive decisions, states can cut corrections costs while at the same time improving offender outcomes and ensuring public safety.

16 Page State Efforts in Sentencing and Corrections Reform Table 1: Adult Incarceration Rates (Jail and Prison) 1 in X (ratio of incarcerated to nonincarcerated adults) in X Percentage (ratio of of Adult incarcerated Population to nonincarcerated Incarcerated adults) Percentage of Adult Population Incarcerated Growth in Incarceration Rate, Alabama % % 176% Alaska % % 154% Arizona % % 173% Arkansas % % 204% California % % 137% Colorado % % 307% Connecticut % % 267% Delaware % % 139% Dist. of Columbia % % 48% Florida % % 127% Georgia % % 141% Hawaii % % 314% Idaho % % 314% Illinois % % 162% Indiana % % 195% Iowa % % 247% Kansas % % 223% Kentucky % % 324% Louisiana % % 272% Maine % % 116% Maryland % % 86% Massachusetts % % 200% Michigan % % 169% Minnesota % % 243% Mississippi % % 256% Missouri % % 217% Montana % % 287% Nebraska % % 197% Nevada % % 93% New Hampshire % % 264% New Jersey % % 192% New Mexico % % 232% New York % % 99% North Carolina % % 93% North Dakota % % 357% Ohio % % 173%

17 Page State Efforts in Sentencing and Corrections Reform Oklahoma % % 263% Oregon % % 130% Pennsylvania % % 280% Rhode Island % % 254% South Carolina % % 131% South Dakota % % 285% Tennessee % % 176% Texas % % 203% Utah % % 258% Vermont % % 188% Virginia % % 205% Washington % % 101% West Virginia % % 303% Wisconsin % % 300% Wyoming % % 252% Source: One in 31: The Long Reach of American Corrections, Pew Center on the States, The Pew Charitable Trusts, March 2009, 43.

18 Page State Efforts in Sentencing and Corrections Reform Resources Highlighted below are resources that governors and other policymakers can turn to for additional information and assistance in making reforms to sentencing and corrections practices. Alison Lawrence, Cutting Corrections Costs: Earned Time Policies for State Prisoners (Denver, CO: National Conference of State Legislatures, July 2009) This report looks at how state legislatures are trimming corrections costs while maintaining public safety. Christopher T. Lowenkamp and Edward J. Latessa, Understanding the Risk Principle: How and Why Correctional Interventions Can Harm Low-Risk Offenders (National Institute of Corrections Annual Issue, 2004) This article discusses the concept of risk and how it pertains to offender recidivism. It argues for the administration and delivery of more intense services and supervision to higher risk offenders. In contrast, low-risk offenders should receive less intensive levels of supervision and treatment. Crime and Justice Institute at Community Resources for Justice, Implementing Evidence- Based Policy and Practice in Community Corrections, 2nd ed. (Washington, DC: National Institute of Corrections, 2009) This paper outlines the theoretical and empirical support for an integrated model for the implementation of evidence-based practices as well as practical strategies for its implementation in community corrections settings. CrimeSolutions.gov The Office of Justice Programs launched this searchable online database of evidence-based programs to inform practitioners and policymakers about what works in criminal justice, juvenile justice, and crime victim services. Don Steman, Reconsidering Incarceration: New Directions for Reducing Crime (New York, NY: Vera Institute of Justice, January 2007) This paper provides policymakers with public policy strategies that embrace factors associated with low crime rates in a more comprehensive policy framework of safeguarding citizens. Lauren Stewart, State Government Redesign Efforts 2009 and 2010 (Washington, DC: NGA Center for Best Practices, October 2010) This issue brief examines the actions states have taken to deal with the budget crisis in policy areas such as corrections, K-12 education, higher education, employee costs, shared services and agency consolidation, privatization and asset sales, and tax expenditures. National Conference of State Legislatures, Sentencing and Corrections Enactments: All States/Reentry Programs and Supervision Database This database contains legislation enacted by states during the period from January 1, 2010 through November 15, 2010 to address a variety of sentencing and corrections issues. Nicole D. Porter, The State of Sentencing 2009: Developments in Policy and Practice (Washington, DC: The Sentencing Project, 2010) This report examines state legislative initiatives in sentencing reform, death penalty, probation and parole practices, and juvenile justice that have the potential to reduce prison populations and/or promote more effective approaches to public safety.

19 Page State Efforts in Sentencing and Corrections Reform Peggy Burke and Michael Tonry, Successful Transition and Reentry for Safer Communities: A Call to Action for Parole (Silver Spring, MD: Center for Effective Public Policy, June 2006) This paper focuses on the role of parole with respect to reentry and how key parole stakeholders can be agents of change in shaping how resources are targeted as offenders reenter the community. Pew Center on the States, Issue Brief: South Carolina s Public Safety Reform: Legislation Enacts Research-Based Strategies to Cut Prison Growth and Costs (Washington, DC: The Pew Charitable Trusts, June 2010) This issue brief highlights the work of the South Carolina Sentencing Reform Commission and examines the reforms it developed, which led to the Omnibus Crime Reduction and Sentencing Reform Act of Pew Center on the States, One in 31: The Long Reach of American Corrections (Washington, DC: The Pew Charitable Trusts, April 2009) This Pew Public Safety Performance Project report provides a detailed look at who is in the corrections system and which states have the highest populations of offenders behind bars and in the community. Pew Center on the States, Policy Framework to Strengthen Community Corrections (Washington, DC: The Pew Charitable Trusts, December 2009) This paper provides a menu of policy options for policymakers looking to know what works to strengthen probation and parole. Pew Center on the States, Prison Count 2010: State Population Declines for the First Time in 38 Years (Washington, DC: The Pew Charitable Trusts, April 2010) This survey, compiled by the Public Safety Performance Project, shows that for the first time in 38 years, the overall state prison population has declined. The report examines factors that led to this decline. Pew Center on the States, Right Sizing Prisons: Business Leaders Make the Case for Corrections Reform (Washington, DC: The Pew Charitable Trusts, January 2010) This Public Safety Performance Project paper features business leaders approach to working with policymakers on public safety issues. It shares strategies for overcoming political challenges to reform and identifies specific policy changes that are already yielding positive results in their states. Pew Center on the States, State of Recidivism: The Revolving Door of America s Prisons (Washington, DC: The Pew Charitable Trusts, April 2011) This Public Safety Performance Project report provides a state-by-state look at recidivism rates and finds that more than 4 out of 10 adults return to prison within three years of release. It also finds that if states could reduce their recidivism rates by just 10 percent, they could save more than $635 million in one year alone in avoided prison costs. Roger Warren, Arming the Courts with Research: 10 Evidence-Based Sentencing Initiatives to Control Crime and Reduce Costs (Washington, DC: The Pew Charitable Trusts, May 2009) This brief provides ten strategies that would help states reduce their crime rates while conserving state resources to meet other important needs.

20 Page State Efforts in Sentencing and Corrections Reform Tracy W. Peters and Roger K. Warren, Getting Smarter About Sentencing: NCSC s Sentencing Reform Survey (Williamsburg, VA: National Center for State Courts, August 2006) This survey collected basic information from state chief justices and administrators about state sentencing reform activities. Vera Institute of Justice, The Continuing Fiscal Crisis in Corrections (New York, NY: Vera Institute of Justice, October 2010) This survey describes actions states have taken to reduce costs and reviews legislative reforms aimed at reducing corrections spending over the long term. Washington State Institute for Public Policy (WSIPP) Benefit-Cost Tool WSIPP developed an analytical tool to help states identify evidence-based policies that reduce crime and lower corrections costs. The tool allows policymakers to examine various portfolios of programs and their impact on prison populations and costs. Based on projected outcomes, governors and state policymakers can make decisions about the types of programs the state will fund. To access the published report that describes the model and its applications, see