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July 01, 2011

The Political Climate Change Surrounding Alternatives to Incarceration

by Mary D. Fan

As the costs of imprisonment are proving unsustainable, we are realizing that out of sight does not mean we can put offenders out of mind. For decades, the fierce politics of crime made it difficult to explore and expand alternatives to the dominant penal paradigm of incarceration. The wisdom is so widespread it seems obvious—politicians cannot afford to look soft on crime or risk backlash if someone let out of jail early recidivates. As budget crises sweep the states, however, the social meaning of cutting back on incarceration and penal harshness is changing.

Rather than being soft on crime, the search for alternatives to incarceration is a way to cut costs and staunch the fiscal bleeding from maintaining an incarceration nation. Because of the social-meaning change of exploring alternatives to imprisonment from being too soft and fuzzy on crime to being fiscally responsive and responsible, the political climate for exploring alternatives to incarceration is changing.

Coming to Consciousness

In a steep recession, confronting the fiscal and human costs of incarceration has become unavoidable. Today, one in thirty-one adults is under some form of correctional control, either in jail, in prison, or on probation or parole. The statistics are even starker and more troubling for African Americans and men because of disproportionate incarceration: One in eighteen men and one in eleven African Americans are under correctional control. There is widespread concern among criminal justice experts that we have reached a tipping point where such high rates of imprisonment may buy us less safety and even be criminogenic.

As more and more people are incarcerated, not only the most dangerous are locked away. The efficacy of the incapacitation strategy is diminished because lower-risk people are also warehoused away rather than doing good in their communities as fathers, mothers, brothers, sisters, sons, and daughters. In disadvantaged communities where the vast proportion of imprisoned people originate, imprisonment decimates social and family structures that supply the bonds and nurturing against lawbreaking. High rates of incarceration therefore can be criminogenic outside prison walls, in disadvantaged communities, as well as within the pressure cooker of prisons.

For these diminishing or even perverse returns, the fiscal burden is crippling. The bill for incarceration has swelled dramatically as incarceration surged 240 percent between 1980 and 2008. The nation spent $75 billion on corrections in 2008—the majority of the money on incarceration. The $68 billion total spent on prisons was a 336 percent increase from the amount two and a half decades ago. Prisons have become the nation’s second fastest-growing general fund expenditure. To house just one prisoner in 2005, taxpayers spent an average of $23,876 a year. These steep costs are unsustainable in a deep recession and halting recovery when at least forty-two states and the District of Columbia are struggling with at least $103 billion in budget shortfalls.

Searching for Alternatives

The pressures of cutting costs are changing the meaning and political momentum for seeking alternatives to incarceration in many states. About half of the states have adjusted early release and parole programs and sentencing laws or have plans to do so. Putting people back in the community early puts the emphasis on the important question of how we prepare people to reintegrate in the community. Some recent legislation offer examples of recalibrating incentives to foster rehabilitation and reintegration.

For example, in 2008, Pennsylvania passed the Recidivism Risk Reduction Act, which allows for a reduction of up to a quarter of the sentence of a nonviolent offender as an incentive to attend rehabilitative programs. (Pa. Code tit. 61, ch. 45, §§ 4504–06 (2008).) The legislation is projected to help save $71.5 million in five years. At the time, severe overcrowding was forcing the state to construct four new prisons at $200 million each. In a striking change from the tough-on-crime politics that had dominated the Pennsylvania legislature since the 1980s, the incentive for rehabilitation was widely backed by criminal justice insiders, including prosecutors, police, and prison officials.

In August 2009, Colorado officials launched early release initiatives intended to save the state $19 million and to help redress a $318 million budgetary shortfall. Colorado’s House Bill 1352, enacted after bipartisan sponsorship, also reduces the penalties for drug possession and use crimes. (Colo. Rev. Stat. Ann. §§ 18-18-401 to 18-18-406.) The legislation’s statement of purpose explains:

Successful, community-based substance abuse treatment and education programs, in conjunction with mental health treatment as necessary, provide effective tools in the effort to reduce drug usage and criminal behavior in communities. Therapeutic intervention and ongoing individualized treatment plans prepared through the use of meaningful and proven assessment tools and evaluations offer a potential alternative to incarceration in appropriate circumstances and should be utilized accordingly. (Colo. Rev. Stat. Ann. § 18-18-401(b), (c) (2011).)

One of the bill’s sponsors, Republican Representative Mike Waller, a former prosecutor, explained, “It’s time to switch our focus from being tough on crime to being smart on crime. This bill is about how we can get the best bang for our public-safety dollars.” Demonstrating a bipartisan coming to consciousness, Representative Waller stated, “I’m convinced that warehousing people who are addicts doesn’t do anything to solve the problem.”

Budgetary pressures may also build political will to explore sentencing alternatives, such as house arrest. In Mississippi, for example, budgetary pressures led the Department of Corrections to increase the number of nonviolent drug offenders serving time under house arrest rather than parole. According to Mississippi Department of Corrections figures, in fiscal year 2007, putting an offender in the intensive supervision program under house arrest cost an average of $9.96 per day compared to $45.48 a day to house a prisoner in the state penitentiary. The difference represents a nearly fivefold savings for each prisoner per day.

The search for alternatives to incarceration in the nonviolent drug offender context has also led to the increasing popularity of drug courts. Well before the present economic contraction, drug courts began in the 1980s as a tactic to relieve some of the pressures of high drug caseloads overburdening the courts. Drug courts represent a break from the punitive approach to incarcerating those with substance abuse problems, adopting a disease model and giving incentives to engage and succeed in treatment to avoid incarceration. Criminal justice actors, including judges, act alternately as cheerleaders and “tough love” providers toward overcoming the problem and reducing the risk of recidivism. Avoiding or reducing prison time is an important incentive for successful completion of rehabilitative programming.

Because of the success of drug courts, the notion of mental health courts is also gaining political traction. Mental health courts are also anchored in a therapeutic model. Approaches vary in the jurisdictions experimenting with this alternative model. In general, however, the goal is to offer an alternative to the traditional penal model to provide incentives for treatment that address the root problems of lawbreaking and reduce recidivism. The hope is to stop the expensive recycling of people through the system because root problems are not redressed.

A Precarious Time

While budgetary pressures may create political conditions conducive to exploring alternatives to incarceration, the need to slash and burn also may imperil promising programs. For example, Kentucky is phasing out its family and drug court to address a $7 million deficit as part of short-term cost-cutting measures with long-term consequences.

Kansas also has cut important therapeutic programs for reducing
recidivism and breaking the cycle of reoffending. Though as many as 80 percent of inmates in the Kansas system have substance abuse problems and 40 percent can be considered addicts, Kansas cut its substance abuse treatment programs. The state also slashed community residential programs that help the mentally ill transition back to the regular population after serving their sentence and stay on their medications, thereby posing less of a risk of harm to others and themselves.

Backlash against back-end sentence reductions, such as expanding early release, has in some instances led to attempts to cut costs in less politically perilous ways by slashing rehabilitative programs. Colorado, for example, recently cut $1.9 million in funding for prisoner treatment programs for substance abuse and mental health problems to address its budgetary woes after an expanded early release program to save money got off to a rocky and controversial start and few inmates were actually released. As budgetary shortfalls lead to recurrent states of emergency or urgent program cuts, the danger is misaimed slashes to relieve short-term pain at the expense of long-term pathologies.

The Judicial Awakening

While much of the fomentation is in the political branches, courts have an important role to play in curbing the excesses of an incarceration nation that transgress the human rights safeguarded in the Bill of Rights. The judicial awakening is demonstrated by Justice Anthony Kennedy’s recent opinions for the Supreme Court in Graham v. Florida, 130 S. Ct. 2011 (May 17, 2010), and Brown v. Plata, 131 S. Ct. 1910 (May 23, 2011).

Graham categorically invalidated sentences of life imprisonment without possibility of parole for juveniles in nonhomicide cases as a violation of the Eighth Amendment prohibition against cruel and unusual punishment. The case reinvigorated Eighth Amendment proportionality review, which had been essentially dormant for more than a half decade since the Court’s famously fractured decisions in cases such as Ewing v. California, 538 U.S. 11 (2003), and Lockyer v. Andrade, 538 U.S. 63 (2003), let stand sentences of twenty-five years to life for shoplifting three golf clubs and fifty years to life for shoplifting videotapes.

The same year as the Court decided Ewing and Lockyer, in 2003, Justice Kennedy gave a memorable speech to the American Bar Association urging that lawyers do something to ease the fiscal and community toll of spiraling penal severity. Justice Kennedy told the audience, “Our resources are misspent, our punishments too severe, our sentences too long.” He said:

The debate on the purposes of prison—should it be deterrence, should it be prevention, should it be rehabilitation—has gone on for a long time. But please do not think it is a tired debate. That debate must be renewed given the number of people we have in our prisons. We have to find some way to bridge the gap between skepticism about rehabilitation and the fact that so many of your fellow citizens and your fellow humans are being maintained in prison. We have to ask, “why are they there?” We have to ask if there are some better ways to prevent the addiction of crime which causes the cycle of recidivism.

For seven years, the Court sat back and waited for the political process and branches to do something about the pathologies of the system. But the political process was stuck. Finally, Justice Kennedy led the Court in Graham and in Brown v. Plata in acting to address the human toll and vindicate the values enshrined in the Eighth Amendment.

In Graham, Justice Kennedy explained that the penalty’s forswearance of the rehabilitative ideal and snuffing out of hope for juvenile nonhomicide offenders was relevant to the severity analysis. The legislature is free to choose among penal approaches, Justice Kennedy wrote. But “[i]ncapacitation cannot overwhelm all other considerations, lest the Eighth Amendment’s rule against disproportionate sentences be a nullity.”

Soon after Graham, Justice Kennedy again wrote for the Court in affirming a prisoner release order “of unprecedented sweep and extent” requiring California to reduce its prison population to 137.5 percent of design capacity within two years. The order would necessitate the release of as many as 46,000 prisoners to ameliorate Eighth Amendment violations in the provision of health and mental care to prisoners because of severe overcrowding. The Court ruled the order was required to redress what Justice Stephen Breyer in oral argument termed “a big human rights problem.”

These landmark decisions are important nudges for a nation stuck in the pathological politics of crime. It is not the province of courts to set penal policy. It is the task of courts, however, to make constitutional values salient to the polity and to act rather than abdicate review when process dysfunction leads to legislation that pushes the gray boundaries of constitutionality. The judicial nudges show the value of our system of cross-checks that envisions the need for the vision of institutions set outside of the political quagmires in which political actors may be stuck.

A Return to Our Roots and Humanity

For much of the twentieth century, the prevailing orientation of American criminal justice was rehabilitation and hope for redemption, centered on the belief that the system and its sentences should reform the offender. Dubbed the “rehabilitative ideal,” the prevalent penal approach reflected faith in modern therapeutic intervention as well as older Western beliefs in punishment as loving chastisement meant to correct and improve the offender. Oriented by this penal philosophy, the American incarceration rate of around 100 per 100,000 people in the population was in line with much of the democratic West until around 1974.

The spike in our appetite for incarceration is the aberration rather than the cultural norm. Despair over surging crime rates, collapse of faith in government institutions to successfully rehabilitate, and a governance structure highly responsive to flare-ups of passion and Manichean crusading led to the decline of the rehabilitative ideal beginning in the 1970s. Times and crime rates have changed again. We can afford a return to our cultural roots of hope for reintegration.

In a forthcoming article, I will explore the future of penal approaches and contend that the future of penal law may be shaped by what I term “rehabilitation pragmatism.” Rehabilitation pragmatism is not the starry-eyed and egalitarian hope for reclamation of every soul of the rehabilitative ideal. Program beneficiaries will be selected for suitability and chances of success. Rehabilitative pragmatism will be data-driven in selecting its beneficiaries, held accountable for its costs through demand for evidence of success, and derive its bipartisan support from the notion of cost savings and empirical support for efficacy.

Limitation on access, in turn, poses challenges of potential disparities in who becomes a beneficiary of rehabilitation pragmatism and who is left out that must be addressed. As we use the political cover of budget-cut criminal justice and the judicial awakening to explore alternatives to incarceration, we must take care to address rather than aggravate inequities in who bears the burdens of penal harshness and who benefits from measures of mercy. Performance measures should take improvement of humans and community as well as fiscal costs into account for a sustainable transformation and progress forward.


Mary D. Fan

Mary D. Fan is an assistant professor of law at the University of Washington School of Law specializing in U.S. and international criminal law and procedure.