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Righting sentences: let's get smart about who should - and shouldn't - be in jail.

Kenneth McDuff was called "the most extraordinarily violent criminal ever to set foot in Falls County, Texas," by the Falls County district attorney. He was also extraordinarily lucky. After being convicted of brutally murdering two teenage boys and then raping a girl and snapping her neck with a broomstick, he was scheduled to die in the electric chair. But in 1972, when the Supreme Court commuted all death penalty cases to life in prison, McDuff got off death row. And 15 years later, as the war on drugs poured offenders into Texas prisons, he got even luckier.

By 1987, the Texas penal system was so overcrowded that the state started paroling 750 prisoners a week--even though, after a few weeks, they didn't have 750 inmates left who were eligible for parole. So instead of closing the gates, the parole board lowered its standards. So what if every law enforcement officer who had ever encountered McDuff said he had no conscience and would probably kill again? In 1989 Lucky McDuff was sprung on the small Texas community of Rosebud. Three days after his release, the naked, strangled body Stephanie Mencimer is a Washington writer. of 29-year-old Sarafina Parker turned up in a weed patch nearby. After a year-long crime spree and a cameo on "America's Most Wanted," McDuff was finally apprehended once again and charged with three murders. Officials are still investigating six others for which he may be responsible.

In 1991, around the same time one of McDuff's alleged victims was found floating in a gravel pit in Dallas County, a seemingly unrelated event was unfolding in Washington. The Supreme Court was considering the case of Ronald A. Harmelin, a Michigan man with no criminal record, who'd been pulled over for running a red light and was caught with about a pound and a half of cocaine. Convicted, he was sentenced under Michigan's mandatory sentencing law to life in prison with no chance of parole. The same crime under federal law would have gotten Harmelin 10 years in prison; in Alabama, he would have gotten five. But the high court ruled that the life sentence was not a disproportionate punishment for the crime and let Harmelin's life sentence stand.

Kenneth McDuff and Ronald Harmelin have never met, but in the recent history of American corrections, their lives are tightly connected. As more Harmelins overcrowd our prisons, the McDuffs are being set free. One cause of this terrible tradeoff is, simply, a nearly unmanageable rise in crime in recent years. But another cause is the profoundly misplaced priorities that guide the U.S. criminal system.

The United States now incarcerates the largest percentage of its population of any country in the world--nearly a million people--and the public apparently just can't get enough. The Senate crime bill introduced in 1992 had 56 new criminal offenses or penalty increases for violent crimes, drug trafficking, terrorism, and firearm offenses, plus mandatory federal prison sentences for 12 other serious crimes. The longer and stiffer the sentences, the happier we Americans seem to be--at least, perhaps, until now.

California built nine new prisons in the eighties to relieve overcrowding and has plans to build another eight. Planners are already warning that the system will be just as crowded when construction is finished in 1996, with 163,100 inmates crammed into space designed for 74,700. The operation costs of the system are astronomical--$2.1 billion a year and rising, not including the $4 billion in scheduled building costs. Meanwhile, violent crime in the state is steadily increasing.

As politicians legislate tough sentences for every other felony-of-the-week, the California conundrum is quickly moving east. And the result is that, stiff sentences or no, we've begun to let a startling number of criminals get off on relatively easy terms. Because 42 states are currently under court orders to relieve prison overcrowding, very few people actually serve the time required under new sentencing laws.

The good news is that we're finally beginning to realize that prison cells are a scarce resource. The bad news, as the McDuff case amply illustrates, is that we're still confused about how to maximize their efficiency--that is, how to preserve the safety of the community without spending more than we need to spend. That confusion ensures that the folks being let out of prison are often more dangerous than the folks being put in. It doesn't have to be that way. It's a smart move to let some prisoners do their time elsewhere. What's not smart is how we're going about discriminating between the mild-mannered and the McDuffs.

Cruel and usual

Criminal justice experts have long known that certain groups of prisoners consistently make safer bets for parole than others. Women, for example, are good risks, especially since 59 percent of the women jailed today are serving time for nonviolent offenses such as theft, forgery, drug possession and sales, and prostitution. Additionally, 80 percent of women in prison have children, which generally makes them more receptive to rehabilitation than their male counterparts. Despite that, women are now the fastest growing prison population. Why? Because when Congress overhauled the sentencing guidelines to eliminate gender and racial bias in 1986 (and many states followed suit), the number of women in prison skyrocketed 61 percent.

Women aren't the only prisoners who could be safely doing their time elsewhere. Clyde McClellan is a convicted second-degree murderer incarcerated at Washington, D.C.'s maximum security installation in Lorton, Virginia. He is not a charming guy. But McClellan is also half-blind, 74 years old, and has no legs. While most communities would probably risk having McClellan unloosed into the neighborhood, the D.C. parole board won't. It recently rejected McClellan's request to leave prison. Consequently, D.C. taxpayers will continue to pay $30,000 a year to keep a handicapped senior citizen under lock and key.

McClellan is not alone. In Florida, 10 percent of state inmates are over 55. By 2001, the United States will house 125,000 prisoners over the age of 55, at a cost of $4 billion. Why so high? Because the cost of incarcerating elderly prisoners is three times that of younger inmates. Is it worth it? Only 1 percent of inmates released after the age of 55 return to the system within a year, as compared to 20 percent of offenders under the age of 25.

Granted, some of these old guys committed crimes worthy of long sentences---like second degree murder. But surprisingly, murderers are often very good parole risks because their crimes are often committed in the heat of the moment or as crimes of passion and are not likely to be repeated. Case in point: Jean Harris, who murdered her lover, the Scarsdale diet doctor, is not likely to kill anyone else now that she's been freed. So, in even the coldest cost-benefit analysis, taxpayers aren't getting their money's worth with the McClellans. Not every older person should be let out on parole, but many of those 125,000 should be.

So why aren't more nonviolent elderly and female prisoners on parole? The interminable problem with corrections systems is that the public wants its goals to be everything--retribution, punishment, rehabilitation, and public safety. Even though he's not a physical threat to public safety, we want Ivan Boesky to spend some time behind bars because we don't want the rich to be exempt from the punishment poor people are almost always assured; we want the female purse snatcher in jail to teach her a lesson, and so on. Now that we're realizing we've got finite resources, we should be deciding the best way to maximize those resources.

Unfortunately, the system today does a poor job of allowing for these kinds of choices, making it easy for people like 26-year-old Rodney Solomon to come and go through the penal system's revolving door. Solomon made big Washington news recently when he was charged in Howard County, Maryland, with first degree murder for a "carjacking" in which 34-year-old Pamela Basu was killed after being dragged alongside her car for a mile and half. (Solomon stopped briefly to toss Basu's baby daughter out the window.) What should have been equally big news was that Solomon, who had been awaiting trial on heroin and cocaine distribution charges, had just been released from the D.C. jail despite requests from the U.S. attorney's office that Solomon be held without bond based on his record of assaults and robbery dating back to 1983--plus a history of probation violations.

One reason dangerous risks like Solomon get out of jail free is that the D.C. jail is overcrowded with nonviolent offenders, usually young people charged with drug offenses. Mark Cunniff, executive director of the National Association of Criminal Justice Planners, notes that drug offenses (possession, sale, and trafficking) now constitute over a third of felony sentences, which are, in turn, feeding the prison crisis. In 1990, 54.2 percent of the prisoners in federal prisons were serving sentences for drug-related crimes, up from 22.7 percent in 1980. In 1982, Cunniff says 30 percent of all arrested drug traffickers went to prison; the other 70 percent stayed in the community in probation programs. Now it's closer to 50-50. If the trend continues, by 2000, about half of all prison inmates will be drug offenders.

The benefits of all this hard line sentencing are hard to discern. In Delaware, for example, a tough 1989 anti-trafficking law mandates penalties of at least three years in prison with no parole for all convicted traffickers (defined as possessing five to fifteen grams of an illegal substance). By March 1992, arrests for drug possession had increased 59 percent, and 424 people had been convicted and imprisoned under the new law at a cost of $26.6 million. Yet officials discovered that 72 percent of those people had never before been imprisoned for any crime. Delaware officials are now reconsidering the trafficking law because it's bringing too many minor offenders into the already overcrowded prison system without a noticeable impact on the drug supply.

The New York office of the DEA came to a similar conclusion after attempting to combat the crack trade in New York's Washington Heights neighborhood in the eighties. Robert Stutman, former head of the New York office, orchestrated massive raids on what he believed to be the source of the drug problem--yuppies from wealthy suburban neighborhoods driving in for cocaine. After seizing a thousand cars and breaking up a few crack rings, Stutman realized that had made almost no impact whatsoever on the supply of crack in Washington Heights. His conclusion--and this, mind you, came from a DEA official--was that dealers and buyers in the drug trade can never be arrested in sufficient numbers to make a significant dent in the drug trade or related crime.

When a get-tough approach doesn't deter crime, spending billions of dollars to incarcerate people sentenced under get-tough laws doesn't make sense. What does make sense is something penologists have understood for years. A guy who wants to hold up a Hardee's isn't going to be chastened by the fact that the minimum sentence for the crime is seven years instead of three. What really deters crime (besides a healthy economy and plentiful high-wage jobs) is the likelihood of punishment instead of plea bargains or early release because of overcrowding. Unfortunately, our elected officials are content to perpetually pursue "tough on crime" measures which actually diminish the certainty of punishment.

Parole bored

In American minds, prison has become the only response to crime. Here is where liberals eagerly jump in, saying that more criminals should be placed in community-based alternatives to prison. While that makes more sense than building more prisons, we already have a massive community-based penal program. In fact, more than 60 percent of the people under the corrections tent are in it. The program is called probation and parole--and it isn't working much better than the punishment of the iron-bar variety.

About 2.7 million people are on probation and another 500,000 are on parole in the United States fight now. These programs, once used to carry out the rehabilitative ideals of the prison reformers of the seventies, changed their focus in the early eighties when the system essentially abandoned rehabilitation in favor of more prison construction. Parole and probation became only supervisory programs, solely devoted to protecting the public from ex-cons.

Even with that minimal agenda, parole and probation programs haven't been funded well enough in most states to keep up with an explosive increase in "clients." According to the National Association of Criminal Justice Planners, between 1981 and 1987 the number of people paroled jumped 81 percent--a figure that makes the 51 percent increase in the prison population seem almost manageable.

In New York City, the budget crunch has forced the city to cut probation staff and reduce workloads for remaining officers at the same time. To do this, the probation office is abandoning face to face interviews with nonviolent probationers and is focusing on violent criminals. But this is precisely where the system's priorities get confused. There's not a probation officer on earth that can make much of an impact on a truly violent criminal (who probably shouldn't be on probation anyway), but face to face interviews with nonviolent types may be the only chance of saving them.

New York isn't alone in this regard. In California, Proposition 13 cut the probation department's staff in half at the time when about 40,000 people in the state were on probation. By the end of 1990, however, 90,000 people in California were on active probation, yet the department was never restored to its original size. As a result, California probation officers now frequently have more than 200 cases apiece, giving them about 10 minutes a week to work with each person under their supervision.

In order to compensate for the strain on the staff, the state has a rather goofy scheme of monitoring its probationers: It makes them send monthly postcards to their probation officers to let them know where they are. ("Dear Officer Bob: Phoenix is great. Wish you were here. Love, Joe.") Not surprisingly, nearly two thirds of probationers in California and in the rest of the country end up back in prison.

That's not to say that liberals aren't right in theory when they argue that community-based corrections should be better used. Run wisely, probation and parole are existing mechanisms that could relieve prison overcrowding and cut recidivism rates. And electronic monitoring, house arrest, or residential drug treatment programs are cheap and effective methods as well.

With a little luck, these alternatives may become more popular if Attorney General Janet Reno carries her approach to Florida's drug problem to the Justice Department. Reno's famed "Drug Court" in Dade County, Florida, allows first time offenders and even non-violent repeat offenders to undergo intensive drug treatment rather than serve jail time. Since 1989, 3,200 people have completed the program, and those who graduate have only a 40 percent recidivism rate, compared to the 65 percent who come out of a regular jail. Not only does the program seem to be effective, it's cheap by penal standards. The "Drug Court" only costs $600 per offender, compared to the $17,000 spent to keep someone in the county lockup.

Meanwhile, the nation's sentencing laws could use a major overhaul, focusing on imprisoning the most dangerous criminals. Save those scarce cells for those young, violent criminals like Henry "Little Man" James, whose regard for human life is evident in the offhand remark he made after killing a woman on the D.C. Beltway: "I felt like bustin' someone." Then, for the smaller fish in the pond, money should be redirected from prison construction to better rehabilitation-oriented corrections, so that fewer of those millions of people on parole and probation become full-time prison residents.

Retooling the system isn't impossible. In fact, there's a tested model in Minnesota. Rather than build more prisons, Minnesota has invested in a network of community-based alternatives that most states still lack. The alternatives emphasize drug rehab and education (the two biggest variables in reducing recidivism), which officials find far easier and cheaper to accomplish in a community setting than in prison. And intelligent sentencing guidelines insure that only the lowest risk offenders have the luxury of participating in these programs. Consequently, one of the workhouses in Hennepin County has become one of the state's largest generators of general educational development (GED) degrees--second only to the Minnesota public school system--graduating between 100 and 150 inmates (out of about 550 in the program) per year. By comparison, in 1991, only 56 inmates in the entire D.C. prison system passed the test.

That doesn't mean that Minnesota is all soft-touch. For the high-risk McDuffs, a belief in certainty of punishment has become one of the state's guiding principles, You may not get a 20-to-life sentence for first-time cocaine possession, but if you're a rapist sentenced to seven years, you'll serve all of them behind bars. The result? Minnesota's closest brush with the prison overcrowding crisis is in newspapers from other states. It now ranks 48th in the country in per capita incarceration rate (78 per 100,000 compared to 320 in California).

Sure, St. Paul isn't East L.A., but the new Congress and administration could do worse than to follow Minnesota's example when it addresses crime, for crime threatens to be one of the biggest policy questions for the next decade as children of baby boomers come into their prime crime-committing years. If the government doesn't act quickly, our outrage at the Willie Horton story may soon seem like a quaint memento of safer times. "Only one Willie Horton in his closet? Maybe Dukakis wasn't so bad after all .... "
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Author:Mencimer, Stephanie
Publication:Washington Monthly
Date:Apr 1, 1993
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