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December 21, 2008

How many states are being forced by economic realities to consider releasing prisoners?

This local story from Virginia, headlined "Kaine’s plan calls for release of inmates," has me wondering how many states are being forced to consider inmate releases because of economic difficulties. Here is the start of the piece from Virginia, which spotlights both the practical and political issues that always surround these stories:

Gov. Timothy M. Kaine’s proposal to release roughly 1,000 inmates 90 days early runs counter to the longstanding direction of policy in the state and is raising some mixed reactions, even among Republicans.

Kaine’s budget proposal, if approved by the General Assembly, would save an estimated $5 million by 2010 and would leave it up to the director of the Virginia Department of Corrections to select the nonviolent inmates for early release.

“The rate of growth in the state’s budget for incarceration [now over $1 billion annually] has dramatically outpaced other spending items over the past decade,” Kaine said Wednesday in detailing his plans to deal with a nearly $3 billion budget shortfall. “At a time of economic crisis, lawmakers should rethink costly policies, like prison expansion, that divert resources from education, health care and child services,” he said.

But former Virginia Attorney General Jerry W. Kilgore, Kaine’s Republican opponent for governor in 2005, thinks Kaine is taking a big public-safety and political risk. “Any crime committed by [the inmates released early] can be tied around his neck,” Kilgore said. “One thing you don’t cut even in hard times is public-safety dollars. I think that sends the wrong message, particularly when you go into bad economic times [and] you see more crime, not less.”

Likewise, J. Tucker Martin, spokesman for Virginia Attorney General Bob McDonnell, said McDonnell “does not believe this is an appropriate way to balance Virginia’s budget.” “This is contrary to the current policy of the commonwealth related to abolition of parole,” Martin said. Inmates should serve their full sentences and when released be provided with the resources needed to successfully re-enter society, he said.

But Richard Cullen, a former Virginia attorney general, U.S. attorney and longtime Republican activist, said, “Governor Kaine is very thoughtful, and I’m sure he’s not going to do anything that’s going to adversely impact public safety.”

I sense that these sorts of issues and debates are arising in nearly every state with sizable prison populations.  In addition to providing more evidence of the criminal justice ripples of our current economic times, these stories also provide a sober reminder of the long-term costs of using incarceration as our first response to all crime and public safety concerns.  The silver lining in all these stories is that states are now likely to seriously consider most cost-effective and "productive" responses to crime beyond the usual "let's get tougher" political rhetoric.

For another view on these economic dynamics, consider also this worrisome story out of Utah headlined "Economy forces state to scrimp on treatment for young sex offenders."  Here is how this piece begins:

Despite Utah's young demographics and a booming number of juvenile sex offenders, upcoming budget cuts will hit kids in trouble hard.  An expected $3 million shortfall through 2010 means fewer juvenile sex offenders will be evaluated and treated as efforts to build a new center have been scrapped. More kids will be crowded together if a long-term lockup center is closed. And funds will be chopped from a slew of community programs including one that gives police a place to take arrested juveniles if their parents can't be found right away.

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December 21, 2008 at 10:15 AM | Permalink


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I hold an MLA with emphasis in history and a minor in law. I am enjoying these changing times as I believe that ultimately they will lead to greatly needed social and economic reforms in the world. Thanks to the internet, voices like yours are now being heard. Thanks, Jim

P.S. I always love when government talks about the "message they send" whenever someone opposes an idea which typically is out-dated and anti-freedom orientated. Thanks.

Posted by: Jim Lunsford | Dec 21, 2008 10:49:23 AM

It seems we may be reducing the prison population (well, at least temporarily) by not holding trials! From the front page of today's Los Angeles Times: "Trials Halted to Save Money"--http://www.latimes.com/news/nationworld/nation/la-na-courts22-2008dec22,0,4764814,full.story

Of course now we need to think of those languishing in jails that much longer awaiting trial.

Posted by: Patrick S. O'Donnell | Dec 22, 2008 8:04:42 AM

Arguably the message it sends is one of irony. The reason assumedly that their prisons are overloaded is because they are catching a great deal of criminals. So what is the solution? If you continue to catch criminals at their current rate with their current amount of prison space, the continued consequence to that action is one that will continue to force Virginia to let prisoners out of jail before their time is truly served. The logic could be slightly flawed but once again ironically letting prisoners out early will be a "lasting" solution to their budget problem. No matter what theory of punishment you subscribe too (retributivism, utilitarianism, paternalism etc...) you would not appreciate the result.

Posted by: Craig R. | Dec 22, 2008 8:49:51 AM

In Texas, Doc, the Legislature actually foresaw an imminent overcrowding problem and created new treatment and diversion programs in the last four years that appear to have eliminated short-term space problems.

The main focus was requiring use of progressive sanctions by probation departments to reduce new prison entrants from probation revocations, and all but one of the state's five largest counties (which account for more than half the prison population) have seen double-digit percentage declines in probation revocations since the new regime was enacted. (During the same period, FWIW, crime rates significantly declined.)

So while Texas is not necessarily "releasing" inmates in response to economic concerns, we're definitely incarcerating fewer to avoid paying the tab for their confinement.

Posted by: Gritsforbreakfast | Dec 22, 2008 9:32:37 AM

There should be a rule that no state may imprison more than X% (say, 0.05%) of its population at any given time (excluding pretrial detainees). Once that limit is met by a given state, the state must either release people or cease to incarcerate new inmates. There comes a point when so many people are locked up that the problem is not with the people, but rather with the penal code. This would prevent prison overcrowding as well as financial incentives for the prison industry which I find to be against public policy.

I'm pulling the number .05% out of my ass, but it seems to be in the ballpark.

Posted by: BruceM | Dec 23, 2008 2:15:16 AM


It appears to me that what you are asking for is a general cap on the incarcerated population instead of a specific cap for an individual prison or jail.

The so called "criminal justice system" is a network of independent agencies with a common set of clients. Each node in the network has a manager but there is no general network manager or for that matter general oversight. As a consequence there would be a major structural problem with implementing a general cap.

If the state were to set a cap of 0.1% on percent incarcerated in a county jail that would probably mean the county attorney would dismiss more charges in order to stay below the cap. If there were such a cap for prisons that was applied to a judicial district the district judges would use incarceration for the most serious cases and a prison alternative for the rest. The chief judge would probably have the responsibility for cap oversight.

A cap would save a lot of money but it is very obvious that there would be major problems with fairness and the political problems with a cap would be immense. Another problem is coming up with a rational mechanism for setting the cap.

I suppose the Sheriff and Board of Supervisors could set their own cap (don't hold you breath). On a couple of occasions in the past our Jail Supervisor has temporally capped the jail population but even under those circumstances they would take person charged with a felony by releasing a prisoner charged with a misdemeanor. As a matter of fact I think we could make a strong case for capping misdemeanor jail intakes on weekends. If the jail inspector worked on weekends we might have one now.

Posted by: John Neff | Dec 23, 2008 9:10:06 AM

With up to 30% of people in jails with mental issues and the rising rate of homeless people and increasing numbers of joblessness, some individuals are committing crimes to get into jail. Perhaps there is a better way of handling these issues. Mental problems need to be handled by the medical profession and they lack funding. That being said our country needs to be able to use whatever talents these individuals may have. Hence, there should be more programs such as San Francico's Delancey program, which does not cost the taxpayers anything and uses the individual's talents constructively.

Posted by: Caroline S. Zoes | Dec 23, 2008 9:51:01 AM

We should execute more criminals too. Hell, if we do that, we reduce our collective carbon footprint.

Posted by: federalist | Dec 23, 2008 11:46:05 AM

John Neff: I think every state would apportion the available "incerceration slots" per county based on some formula including population and crime rate (though the former is usually somewhat inclusive of the latter - higher population density = higher crime rate). Again note that I excluded pretrial detainees (which is a large percentage of a typical county jail population) from the incarceration cap. Another way to go is for each county to sentence people per usual, and a singular state board will decide who goes in and who gets out based on whatever reasonable factors they decide to use, so long as the total number of incarcerated citizens of a given state remains at or below the cap.

I disagree that there would be fairness problems. Allowing unlimited incarceration is what creates fairness problems. When there are absolutely ZERO negative externalities for locking up as many people as the state desires, you end up with a system of mass incarceration like we have now, along with a prison-industrial complex. Persistent prison overcrowding, unending civil rights violations, constant prisoner abuse prison violence, and racial disparities.

Give the states a LIMIT as to how many people they can lock up (based on the state's population - California can lock up more people than Rhode Island), and they will be FORCED to be prudent about who gets incarcerated, and for more reasonable periods of time. If prison spaces are limited, violent criminals will be locked up before nonviolent drug offenders. That's the way it should be. And sentences will be more reasonable. Nobody deserves to spend more than 20 years in prison for normal penal code offenses (not things like genocide, wartime treason, international terrorism, mass murder). 20 year sentences should be rare; but we toss them out like candy with some crimes having mandatory minimums of 20 years plus. It's ridiculous.

Yeah victims will whine and any politician who votes for caps on prisoners would be burned at the "soft on crime" stake - guaranteed political suicide. But that doesn't mean it's a bad idea. Most good ideas are political suicide these days.... god forbid public policy might interfere with American Idol.

Posted by: BruceM | Dec 23, 2008 1:19:32 PM


Why do you exclude pretrial detainees? I think that the criteria used for the pretrial detention decision are obsolete and biased against poor people. The fairness problem applies to persons incarcerated before the cap is reached.

In Iowa the Board of Parole under some circumstances acts as review board for prison sentences. I have asked the county attorneys if you know the BOP will parole the person as soon as they are eligible why not use a prison alternative in the first place? They just roll their eyes.

We incarcerate people we are afraid of or are mad at. We could say there are no restrictions on incarceration for those we are afraid of and set up road blocks to incarceration of those we are mad at.

Posted by: John Neff | Dec 23, 2008 1:50:19 PM

John: As long as putting up money (bond/bail) is how arrestees guarantee their appearance at future court dates, the system will always be biased against poor people, as they by definition don't have much money. Maybe one day in the near future, when we all have state-mandated GPS tracking chips inserted into us at birth, bond will no longer be necessary.

I exclude pretrial detainees from my "state incarceration cap" because the full facts are not yet known at the time of arrest. After trial and sentencing, objective determinations can be made, as well as comparisons with other convicted offenders facing potential incarceration. I do think we need pretrial detention reform, no question about it. Here in Harris County, Texas (death penalty capital of the world), the prosecutors always seek no bond (or ridiculously high and unaffordable bond) to keep the defendant in jail so as to make it harder to work with his/her attorney. Also, despite clear state law to the contrary, defendants have to choose between paying bond and having appointed counsel - if they can afford bond, they are thus not indigent and are not allowed to have counsel appointed. Since all the criminal court judges in Harris County are prosecutors (judge is the highest position in the DA's office), they do this. It's a deprivation of both due process and the right to counsel, and it's clearly against state law. But they do it anyway. If you want appointed counsel, you can't pay your bond and have to stay in jail pending trial. Can you believe that?

Maybe GPS tracking chips are the way to go. Problem is someone desperate enough could always rip it out. Maybe they could put the chip inside one of the chambers of the person's heart, or inside their spinal chord, or intra-cranial... so it can't be taken out easily. Not that I'd ever let the government put a tracking chip in me, mind you, but I have an unusual care and desire for privacy. Most people don't care, because "if you're not doing anything wrong you have nothing to hide." Idiots... they still close the door when they go into the bathroom to take a crap. I wonder what they're hiding...

Posted by: BruceM | Dec 23, 2008 8:13:35 PM

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