Tough times to be tough on crime: an edited transcript of a recent discussion on corrections and sentencing policy among key state legislators.

Zero tolerance for drug offenses, mandatory-minimum sentences for many crimes and "truth" laws that require serious offenders to serve 85 percent of their sentences have been the prevailing state policies of the past two decades.

Throughout the 1990s, states could mostly afford them. More recently, the worst state budget scenarios in a generation have lawmakers scrambling to cut spending, with seemingly everything on the table. At the same time, crime rates, especially those for violent crimes, have dropped substantially, while state general funds continue to pay a hefty tab for tough-on-crime laws.

A growing number of states over the past couple of years have put in place policies to divert, treat or consider nonprison options for certain offenders, usually those who use drugs or have committed other nonviolent offenses. Does this suggest a trend toward new, less costly approaches in criminal justice?

The Vera Institute of Justice, a New York City-based nonprofit that works with government on justice issues, and the National Conference of State Legislatures put this question before a group of lawmakers who are leaders in criminal justice policies in their states and nationally. Their discussion focused on how states' budget crises and declining crime rates are influencing them, their colleagues and constituents on corrections and sentencing policy. They highlighted specific strategies being enacted or pursued in their states.

CUTTING CORRECTIONS SPENDING

Moderator: How has the current budget situation in your state affected corrections?

Senator Denton Darrington (Idaho): Corrections personnel are down about 8 percent in the last year and a half with administrative, program and correctional officer positions remaining unfilled. We're as thin as you can get and still maintain order within the prisons.

Representative Michael Lawlor (Connecticut): Perhaps like most states, we're spending more money to run our prisons and jails than to run our colleges. Our prison population has been increasing steadily over the past five years. Whether or not you think everybody in jail deserves to be there, you start weighing that against the other things that make you popular, like improving roads and schools. That is the bind we are in at the moment.

Senator Don Redfern (Iowa): The corrections and judicial budgets have faced cuts. Corrections officers were among state employees furloughed last year, but in recent weeks we have reinstated many of those critical employees.

Representative Ray Allen (Texas): Out of the $5 billion corrections budget, we need to cut $172 million the last half of this year. And we need to follow that with another $525 million out of the next biennium. That will allow us to fund little more than gray boxes with steel bars. We have 151,000 people locked up in state prisons. With cuts of this size, many programs will disappear or get cut significantly.

Oregon Representative Floyd Prozanski (Oregon): Corrections has been pretty well-insulated, except for start-up costs for new prisons. But on July 1, we'll start the next biennial budget with a deficit of around $2.9 billion.

FUTURE SENTENCING OPTIONS

Moderator: How do you see this budget situation influencing corrections and sentencing discussions? What sorts of changes have been made or what proposals are before you?

Representative Bill McConico (Michigan): After last year's election, more than 85 percent of the Senate is completely new. That and the budget deficit has prompted us to look at new ideas. I'm not sure specifically how we are going to do it, but I think we'll have a different system a decade from now.

Representative Jari Askins (Oklahoma): Newer members are not as caught up in some of the crime rhetoric as many long-serving members, on both sides of the aisle, have been. There are more of us, some in leadership positions, recognizing that we can't fund education the way we say we want to unless we make changes in our sentencing policies. We realize we need to put money at the front end, that is shift dollars to treatment programs for people before they come to prison so that we can reduce those numbers.

Representative Ray Allen (Texas): We continue to have drug courts, re-entry courts, in-prison therapeutic communities and the like. What we've not done in the adult system is pull that together into a system that starts with the first criminal contact and makes certain there is an absolute consequence. On a second or subsequent record, there is a progressively tougher sanction. We have a progressive sanctions model on the juvenile side that works pretty well. I think that if we can put that together for adult defendants, we will have an impact. We're still going to have a tough system, but it will be considerably more efficient than it is today and also fiscally sustainable.

Senator Dwite Pedersen (Nebraska): We built a new prison five years ago that cost us $75 million and now takes $25 million a year to run. One other senator and I did everything we could to stop that prison and build work release centers.

Those cost one-third as much as a prison to build and operate. The two work release centers we have had for years have been successful. Fewer than 15 percent of our inmates are in for violent crimes. I have worked in this field, and I've seen that the one thing that changes people is work. Inmates acclimate themselves to prison within weeks. If they get out without work, without treatment, they are lost. They are coming right back.

Senator Donald Cravins (Louisiana): We are looking for cost-saving options that do not jeopardize public safety and that result in better outcomes. We have too few parole officers and too many parolees. We have launched a pretty significant reentry program, working with technical and community colleges. We will take inmates two years before they are eligible for parole and train them in a trade, a skill. Once released, we are working to give them better support to try to keep them out of prison. We've not done it long enough to know the results, but it is encouraging.

Representative Prozanski: We started a pilot re-entry program in the early 1990s in Oregon, and I regret that we did not use it as a model to build on. It was a halfway house program with strong components for jobs, housing, alcohol and drug treatment and testing. Participants were pulled from the general population. A year later all but one was succeeding. Now 10 years later, the department is looking to recreate it.

Senator Redfern: We're in a Catch 22 on that in Iowa. We have a strong community corrections system, coordinated among all eight judicial districts. However, with budget shortfalls, we've been cutting those programs. While 80 percent of our prisoners are or will be eligible for parole, the board's decision to parole them depends, in part, on available community programs that have a good record of success. But they have been cut back. Years out, we know that we could be saving money, but we don't have the dollars today to maintain them. At the same time, our projections are that our prison population is going to increase almost 50 percent over the next eight or nine years.

Senator Darrington: My handprints are on much of our sentencing code. We abolished good time, for example, because judges and the public didn't know when someone was sentenced how long they would serve. And I think our public is safer because of some of those laws. It has been a success story for us to have hearing officers who better prepare inmates to see the parole board. That has resulted in a higher percentage of prisoners being paroled, which has helped our prison population remain flat at this time.

I take issue with those in our state who say that people are in prison for no good reason. Some of those low-level criminals are re-offenders who have been in various programs. Their neighbors are tired of them stealing, and the judge has had it. Some of them are drug users. We have a good prison drug and alcohol program that is regimented--boot-camp-like. Idaho also is in the process of expanding drug courts. These show great promise. We are successfully diverting people from prison and graduating them from these programs.

CHANGES IN DRUG POLICIES

Moderator: Policies for drug offenders are changing in quite a few states, including some of yours.

Representative McConico: I sponsored and Michigan enacted legislation last year that revised drug sentencing. One measure eliminated lifetime probation for low-level drug offenses. We brought it down to five years, just as for most every other crime. Another eliminates the minimum sentence for certain drug delivery or possession crimes. People already sentenced to life for such offenses can now become eligible for parole. We expect 248 prisoners to be released this spring and another 700 by October. There are nearly 1,300 first-time, nonviolent offenders eligible under this new law. Most were convicted of having less than 10 grams of cocaine. The Department of Corrections projects that if all these people are paroled, it will save the state $35 million.

Representative Lawlor: We had laws in Connecticut that required a mandatory-minimum sentence for drug sales within 1,000 feet of a school, day care center or public housing. We've since passed a law to give judges flexibility to depart from the mandatory in these cases. What led up to this was that we mapped it. We saw that in our dense cities, like New Haven, where I live, there is almost no location not within the 1,000-feet circles. We saw we were not targeting serious offenders who sell drugs to children, but basically everyone in an urban area, If you are trying to figure out why 72 percent of our prison population is African American or Latino, that helps answer it.

Senator Cravins: In Louisiana, the African-American community makes up about 32 percent of the population, but 70 percent to 75 percent of the prison population. There is a crack cocaine epidemic in this community, and we need to discuss and try to get to the root of those problems. We need options other than prison. We haven't done enough in the area of drug treatment. We tried unsuccessfully to raise the tax on alcohol and use the money for drug treatment. We have been able to enact, in a bipartisan effort, sentencing reform that gave discretion back to the judge for about 30 drug and property offenses for which a mandatory minimum had applied. And we are considering other reforms. We have about 250 inmates serving life sentences for heroin possession, most have served 40 to 50 years. Many of those people ought to be paroled.

Representative Allen: We are looking at some of those sub-populations, too, such as geriatric and hospice inmates. We can change Texas policies for some of these offenders without opening a revolving door. The public would be correct to fear wholesale releases from prison. But they would not fear judicious, common sense weeding. We also have started dealing more sensibly with technical parole violators. We were having a large number of those a couple of years ago and sending people back to prison to finish a 10- or 15-year sentence. We started diverting them into an intensive substance abuse program, which includes after-prison care. They are in nine months instead of five years, so there is considerable cost savings, and the recidivism rates are low. The aftercare appears to be more important than content or length of the program, suggesting we not invest in Cadillac programs, but invest in Chevy programs with Cadillac aftercare.

Senator Darrington: There is another group of people in Idaho prisons for drug offenses who are not dopers, they are entrepreneurs. They don't need treatment. They are dangerous and need punishment. Even in rural communities, everyone knows someone whose life was destroyed by drugs. I taught 14-year-olds for 33 years. I saw young lives destroyed. We're not putting people in prison for smoking a joint, but because they supplied the dope that destroyed young people's and adults' lives. That's fair.

Representative Allen: Right. There are 5,400 people in the Texas prison system sentenced to 10 years for possession of one gram or less of cocaine, but all of those are not poor, misguided 19-year-olds. About 1,800 of them are multiple-time offenders. The other, first-time offenders are worth a try in drug court and treatment programs. If with close supervision and aftercare it doesn't work, then I'll build a prison bed and put him in it. But perhaps it's a mistake to start them out at that end of the continuum.

Representative Askins: In Oklahoma, our prison growth is due to drug crimes. One thing we need to do is expand the use of intermediate options for probation violations. With drug offenders, you are going to have some dirty drug tests. We can't automatically send all these people back to prison. We are going to have to provide something to help rehabilitate them.

Representative Prozanski: On technical violations, we do need to address the conduct immediately without sending them right back to prison. The most effective means in Oregon has been the sanction of up to 10 days in the county jail, immediately. That's being responsible to the public.

GAUGING THE PUBLIC MOOD

Moderator: Do you see the drop in crime influencing how the public feels about crime and punishment?

Representative Askins: This was the first election cycle since I took office in 1994 that crime has not been a campaign issue. Yet regardless of what crime statistics say, we haven't been able to shift the mindset to be able to deal with drug offenders in the community. People who use drugs are a lot different than people who make and sell drugs.

Senator Redfern: The Iowa public is, I think, willing to see drug rehabilitation-type programs and that would certainly help decrease our prison population. One of the concerns I have is whether drug treatment is having the impact we would like it to have. What about the 40-year-old who has been in and out of rehab since he was 18 or 20? Dollars we invest in short budget times have got to be for programs that are effective and for people who will benefit from them.

Representative Lawlor: I think that's a fair question. But isn't it also fair to ask: What is the effectiveness of all of this incarceration? If the goal is to reduce the number of people using or selling drugs, I'm not sure that the incarceration option has been a success either. So I guess the real question is: Is drug treatment more successful than the prisons that we keep spending more and more money on?

Senator Pedersen: When I'm out talking to Nebraska citizens, I like to tell them that we have basically two kinds of prisoners, ones we are scared of and ones we are mad at. I ask them which ones they want us to lock up? That doesn't mean we should release all of the others, but at least consider how we classify them.

Senator Darrington: There is no outcry in the public today to release prisoners. In Idaho, the crime rate declined for a few years in the 1990s, but has since increased again. A lot of it is drugs and other crimes committed because of drugs, like assaults, thefts. The coffee shop talk I hear is that we are still not tough enough on crime.

Senator Redfern: We need to say to the public: Do you want us to just use prison, or should we pick from a range of options that we can sustain fiscally? As a conservative, that's how I am selling this. We also need to be concerned that cutbacks have severely affected Iowa's programs for kids in need of assistance, foster care and such. That's really the farm system for our prison system. We have to ensure that young people are getting the care they need.

BUDGET WOES BRING CHANGES

Moderator: It seems the budget crisis is changing the conversation in states, if not the policies.

Senator Cravins: We would not have had this conversation 10 years ago. The budget situation creates an opportunity to figure out what our corrections policy should be. It's the only thing that will drive us back to sanity. But we need to be cautious not to make rash decisions that then set us back 10 more years.

Representative Allen: An interesting discussion is under way in Texas to consider how corrections, as a finite resource, should be deployed. I think we want to spend our resources on the most dangerous offenders. Why put a young first offender in a prison bed if it denies us the opportunity to put an armed robber there?

Representative Lawlor: From the budget point of view, the do-nothing option--in other words don't change any rules or practices--is probably the most expensive. In Connecticut, we know from the last 15 years that if you don't rethink some policies you will keep spending more to build and run prisons. And it is not really clear what good it does.

Senator Pedersen: We have wanted to be punitive in Nebraska, but the budget shortfall suggests we change our ways. We need to do something different because we are wasting time and money on what we have been doing for years.

[GRAPH OMITTED]

CRIME RATES 1993-2001

The Justice Department's National Crime Victimization Survey shows that
between 1993 and 2001, the per capita rate of violent crime declined 50
percent. Property crime fell 47 percent. Drops in specific crimes were:


Murder               - 42 %
Rape/sexual assault  - 56 %
Robbery               -53 %
Aggravated assault   - 56 %
Simple assault       - 46 %
Household burglary   - 51 %
Motor vehicle theft  - 52 %

Source: Bureau of Justice Statistics, U.S. Department of Justice,
"Criminal Victimization 2001, Changes 2000-2001 with trends 1993-2001,"
September 2002.

RACIAL INCARCERATION RATES

Percent of U.S. males age 25 to 29 in prison or jail on June 30, 2002:


Black     12.9%
Hispanic   4.3%
White      1.6%

Number of inmates in state or federal prisons and locak jails per
100,000 U.S. residents:

          Male Inmates  Female Inmates

Black        4,810           349
Hispanic     1,740           137
White          649            68

Source: Bureau of Justice Statistics, Prison and Jail Inmates at midyear
2002, April 2003. Based on the latest available estimates of the U.S.
resident population for July 1, 2002, from the U.S. Census.

RELATED ARTICLE: STATE PRISON POPULATIONS

Nationally, state prison populations increased 20 percent between 1995 and 2001, while Census data show resident populations increasing an average of only 7 percent. States varied widely in prison population growth, and a handful of states with the greatest increases were among those with the flattest resident population increases. The few states with declining prison populations also had low growth in resident populations, with the exception of North Carolina where resident growth exceeded the national average while prison populations showed a slight decline. The types of offenders behind bars changed less than the numbers over a decade. At the end of 2000, 49 percent of state prisoners were serving time for violent offenses, up from 46 percent in 1990.

* Prison populations grew more than 50 percent between 1 995 and 2001

* Prison populations grew between 20 percent and 50 percent

* Prison populations grew 1 percent to 20 percent

* Prison populations went down between 1995 and 2001

* Not calculated because of reporting changes

Source: Bureau of Justice Statics, U.S. Department of Justice, "Prisoners in 2001," July 2002

THE PANEL

Representative Michael Lawlor of Connecticut is co-chair of the Joint Judiciary Committee and a vice chair for NCSL's Law and Criminal Justice Committee. A former prosecutor, he now teaches criminal justice at the University of New Haven.

Senator Denton Darrington chairs the Idaho Senate judiciary Committee and is a vice chair for NCSL Law and Criminal Justice Committee. He is a former educator.

Senator Don Redfern chairs the Iowa Senate Judiciary Committee. An attorney, he practices civil law.

Senator Donald Cravins of Louisiana is Senate Judiciary Committee chairman. An independent insurance agent, he has served in the Legislature 11 years.

Representative Bill McConico of Michigan is vice chair of the House Judiciary Committee and serves on the Appropriations Subcommittee for Corrections. He has been staff to a state legislator and U.S. senator.

Senator Dwite Pedersen has served on the Nebraska Senate Judiciary Committee for 11 years and is chairman of the Committee on Committees. He is a private practice addictions counselor and previously a counselor and administrator at Boys' Town in Omaha, Neb.

Representative Jan Askins of Oklahoma is chair of the House Judiciary Committee and serves on Appropriations and the Budget Subcommittee on Public Safety. She is a former trial court judge, and also has served as deputy counsel to the governor on paroles and as executive director of the Pardon and Parole Board.

Representative Floyd Prozanski of Oregon serves on the House Judiciary Committee and is an assistant district attorney.

Representative Ray Allen of Texas is chair of the House Corrections Committee. He is serving his sixth term.