Controlling prison crowding.

Faced with growing jail and prison populations fueled by the "War on Drugs," U.S. correctional systems have invested heavily in expanding their bed capacities. Yet, the construction boom has not caught up with the population boom in most states. Despite spending more than $5 billion on new prison beds since the early '80s, California still was operating at 181 percent of capacity in 1985. Incarceration rates have skyrocketed in the past decade, from 313 per 100,000 in 1985, to 600 per 100,000 in 1995 - and the 1,585,401 inmates held in the nation's jails and prisons at the end of 1995 was nearly triple the number held in 1980. Double celling and augmenting capacity with temporary "emergency" beds have not sufficed to manage the overflow. Consequently, increasing numbers of inmates are shipped from state to state, wherever empty beds can be found.

Structured Sentencing Programs

A few states are struggling to gain control of correctional population levels through "structured sentencing" measures: sentencing guidelines designed to spare prison beds for more serious and violent offenders. In 1988, the Edna McConnell Clark Foundation initiated a program to help criminal justice policymakers plan and implement reforms such as these. Now based in a newly-formed Institute on Criminal Justice at the University of Minnesota Law School, the State Partnership for Criminal Justice (SPCJ) helps convene policymakers in selected states and supports a process by which key state leaders form a steering committee including legislators, corrections and probation commissioners, judges and prosecutors. The SPCJ process assists each steering committee in implementing strategies tailored to each state's needs.

The following look at the experiences with prison crowding and population control in two of the nine states which have participated in SPCJ illustrates the challenges policy-makers face as they balance the burgeoning cost of operating expanding correctional systems and the need to sustain other vital systems (e.g., education, housing and health care) which can produce more fundamental, long-term improvements in public safety.

Oregon's Effective Incarceration Project

In partnership with SPCJ, Oregon's Citizens Crime Commission, an affiliate of the Portland Chamber of Commerce, launched the Effective Incarceration Project in the summer of 1996. The project is geared toward improving state criminal justice policy-making by providing citizens with better and more complete information on criminal justice issues. The project's steering committee is co-chaired by Dave Cook, director of the Oregon Department of Corrections, and Paul Lorenzini, senior vice president at PacifiCorp, who chairs the Crime Commission board of directors.

With a longstanding tradition of reliance on community corrections, Oregon has maintained a rate of incarceration well below the national average since 1971. Yet, despite growing population pressures, prison bond measures had been soundly rejected by Oregon voters in 1980, 1983 and 1986. By 1987, the prison system was operating at almost double its capacity. Gov. Neil Goldschmidt began an $85 million effort to double the size of the prison system.

At the same time, the Oregon legislature mandated that the Oregon Criminal Justice Council devise strict sentencing guidelines to manage increasing population levels. The resulting sentencing structure aimed to toughen sanctions for serious violent crime. Its implementation produced dramatic increases in both admissions and average time served for such offenses. But, because the guidelines also created a strong presumption favoring probation and intermediate sanctions for less serious offenders, overall prison populations were held within capacity for five years.

In 1994, however, the state's voters gave overwhelming approval to a ballot initiative which imposed harsh mandatory prison terms for 16 serious felony crimes, trumping the guidelines and catapulting the state toward a new crowding crisis. Early estimates projected that the number of inmates in Oregon would double by the year 2000, but Cook thinks that the actual growth curve may prove to be somewhat less sharp. "Our district attorneys are trying to be discerning in the use of their discretionary powers under the new law, so the specific impact should be smaller than we originally thought," he says.

Even so, since passage of the "get tough" ballot measure, the prison population has jumped. According to an article by Bogan and Factor in the April 1995 issue of Overcrowded Times, the prison population has increased by 25 percent - from 6,844 in December 1994 to 8,550 two years later. A series of fiscal ballot initiatives passed since 1990 has constricted Oregon's tax base, and policymakers are worried that mandatory sentences embraced by voters could force cuts in health care, education and other vital state services.

Faced with the prospect of renewed crowding, Oregon's current governor, John Kitzhaber, has launched a new construction effort to expand the prison system to 17,500 beds by 2005. This plan is coupled with an ambitious effort to reserve new beds for the state's more serious, violent or career offenders. Kitzhaber won authorization during the 1995 legislative session to give responsibility back to the counties for all offenders sentenced to 12 months or less. His legislative package has provided a greatly increased state funding stream for local jails, community corrections and substance abuse treatment programs, and given communities control of the allocation of these monies.

Public Misconceptions and The "Get Tough" Mentality

Since these mandatory sentencing provisions were voted in 1994, SPCJ has sponsored two public opinion polls regarding crime problems and correctional policies in Oregon. The first was conducted by a national research firm in April 1995, and the second by a Portland-based firm in June 1996. Results from both polls confirm a solid base of public support for using community corrections and intermediate sanctions to help nonviolent offenders.

But, research also suggests that public misconceptions about the operation of the state's criminal justice system may have fueled the "get tough" mood expressed in the vote for mandatory sentences. While overall crime rates have been stable in Oregon for many years, with violent crime showing recent decreases, more than two-thirds of those polled said they thought crime was on the rise. And, while sentencing guidelines had stabilized prison population levels within capacity and abolished parole release, most Oregonians nonetheless believe that violent offenders routinely are set free due to prison crowding.

"The 'disconnects' between some of the public's beliefs and the realities of the criminal justice system point to the importance of the Effective Incarceration Project," says Ray Mathis, executive director of the Citizens Crime Commission. "If the public has current information on what is actually happening in public safety, that could certainly effect how they vote and what they demand of their elected officials."

Cook agrees. "The problem has been lack of knowledge," he says. "I believe that once people come to know the facts about what the system is accomplishing and what is effective, they'll act accordingly. They'll want to know if we're using their tax money wisely, and whether there are ways to use it even more effectively."

North Carolina's Criminal Justice Partnership Act

In 1994, North Carolina joined the SPCJ partnership with the goal of implementing major legislative initiatives which paralleled Oregon's reforms. Two measures already had been enacted by the legislature and were about to be launched when an SPCJ steering committee was formed:

* The Structured Sentencing Act introduced sentencing guidelines to effect "truth in sentencing" while gaining front-end control of the criminal justice system to balance sentencing policy with correctional resources.

* The State-County Criminal Justice Partnership Act established a comprehensive statewide community corrections system to provide cost-effective intermediate sanctions for nonviolent offenders in the community.

These two measures followed decades of sentencing policy struggles which had made management of the correctional system difficult. Prior to 1982, North Carolina's judges had enjoyed wide discretion under an indeterminate sentencing system, and there were few constraints on release decision-making by the state's parole commission. Despite such broad latitude, North Carolina frequently led the nation in per capita incarceration rates.

In 1979, a legislative commission on corrections voiced concerns about sentencing disparities and recommended the establishment of a system of presumptive prison terms based on the classification of each offense. Judges would deviate only if they found aggravating or mitigating factors, and parole release would be abolished. However, when the Fair Sentencing Act was passed in 1981, plea bargains were exempt from these restraints and provisions for liberal "good time" and "gain time" were incorporated. For a while, sentences were shorter and more uniform, but upward deviations soon increased and prison crowding worsened. Discretionary parole was reinstated and the time served on prison sentences imposed by judges began to fall.

By the mid 1980s, although a statewide network of "client-specific planners" had been established to advocate for alternative sentences for nonviolent offenders, prison crowding continued to escalate. Another legislative study recommended expansion of correctional capacity - both prison beds and sentencing alternatives - and the creation of a sentencing commission charged with the development of a comprehensive sentencing policy. In the meantime, under a 1987 settlement in a lawsuit challenging crowded prison conditions, the legislature enacted a cap on prison populations which triggered early release of offenders when populations rose to 98 percent of capacity. This measure slowed the growth of the state's incarceration rate by throwing the proportion of time actually served by imprisoned offenders into a downward spiral - from 40 percent in 1986 to 18 percent by 1993 - fueling, in turn, demands for tougher penalties by an incensed public.

In settling the lawsuit, the state had committed itself to a $275 million prison building plan which gained public endorsement through a prison bond referendum passed in 1990. The North Carolina Sentencing and Policy Advisory Commission was established by the legislature that same year to revamp the state's sentencing structure. After spending two years devising a sentencing guidelines grid, the commission submitted two separate options to the legislature. The first would have required significant prison expansion beyond the prison construction effort already underway. This option was rejected. The second option had been designed to bring population levels into balance with the projected future capacity, and would not require commitment of additional capital expenditures. This sentencing grid structure, adopted in July 1993, covers both misdemeanors and felonies. Each felony conviction can be classified according to the grid structure, and each grid cell contains a specific prescription for sentencing: a presumptive prison or jail sentence range for serious cases, or, for less serious offenders, a judge can choose incarceration or select an intermediate sanction such as day reporting or drug treatment. In a few grid cells representing the least serious felony cases, a judge's choices are restricted to nonincarcerative options. Parole release was eliminated again.

Sentencing data from 1995 show that the primary goals are being reached: to reduce the overall proportion of offenders sentenced to prison, while (as in Oregon) sharply increasing the proportion of violent and career offenders incarcerated and lengthening the time these offenders serve. In 1995, 29 percent of felons sentenced under the new law were imprisoned, compared with 48 percent of those sentenced in 1993 under the old law. But felons released from prison in 1993 had only served an average of 15.7 months. Sentencing Commission projections indicate that felony offenders sentenced under the new law in 1995 will, on average, serve within a range of 34 to 44 months.

The State-County Criminal Justice Partnership Act was enacted in tandem with the new structured sentencing law to provide more effective sentencing options for the increased numbers of low-level felons sentenced to intermediate sanctions and community punishments. During a legislative session on crime convened by Gov. Jim Hunt early in 1994, additional probation budget funds were appropriated to support the expected increased use of intermediate and community punishments. Partnership Act grant funds also were earmarked by the Department of Corrections for contracting by local jurisdictions for community corrections programs.

When in Doubt . . . Build?

At the end of November 1996, North Carolina's prisons held almost 29,000 inmates and operated at 118 percent of capacity. By the end of next year, enough new prison beds will be added so that housing inmates in leased beds out of state no longer will be required. When the building program is complete, North Carolina expects to have 35,500 prison beds on-line. According to Corrections Secretary Franklin Freeman, the prison population should come into balance with a 33,000-bed capacity by 1998, and will remain at or below capacity until at least 2003.

But Secretary Freeman believes that just having the bed capacity is not enough to ensure the success of the state's population control efforts. "Structured sentencing will not work unless you have strong community sanctions in place," Freeman gays. "If you only build prison beds, the reform will fail. Without community partnerships providing intermediate sanctions and the intensive supervision which are both vital to proper management of the people we're redirecting to community sanctions, it all will be undermined."

Freeman believes that a recent SPCJ-sponsored public opinion poll has been an essential element in the state's effort to strengthen the community sanctions system. "We learned that there was strong support for certain intermediate sanctions," he says. "The poll results helped us identify which ones they were, and to get them 'framed right' so we could continue to build even stronger support for our strategy."

The opinion research also has added political credibility to the reform package. "It helped us build and sustain these intermediate sanctioning programs during the crucial early months, when the concept came under repeated attack in the legislature," Freeman adds. "And it has served as a springboard for our public education effort, reinforcing the role of intermediate sanctions as an integral part of structured sentencing."

Judge Thomas Ross, who chairs the North Carolina Sentencing Commission and co-chairs the state's SPCJ steering committee with Secretary Freeman, agrees. "The public opinion poll gave us concrete information we could use to demonstrate that our policy reforms were supported," he says. The steering committee sees public education about the reforms as the central element necessary to sustaining success and warding off setbacks. Judge Ross has become a tireless campaigner in this regard - crisscrossing the state to share information with editorial boards and citizen groups.

A second aspect of the SPCJ partnership which, according to Ross, has greatly strengthened implementation of the state's sentencing reform agenda, has been the structure of the SPCJ steering committee itself: low-profile but high-powered, with joint leadership from both corrections and the courts. "We have brought other elements to the table which were not there before," he says. "We've been able to forge a coherent, consistent legislative approach to replace competition between the DOC and the Department of Human Resources. We've been able to go directly to the treatment folks and say, 'Join in with us . . . help us to design community programs that really work.'"

Judith Greene is program director of the State Partnership for Criminal Justice, which offers technical assistance to states trying to control population growth.