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December 25, 2016

Holiday pitch from NY Times editorial board for "Cutting Prison Sentences, and Costs"

With Christmas on a Sunday this year, I will have to guess whether it was a holiday spirit or an end of year spirit that inspired this new New York Times editorial headlined "Cutting Prison Sentences, and Costs."  Here are excerpts, with a little commentary to follow:

States across the country have rushed to trim prison costs by backing away from the draconian sentencing policies that drove up the national prison population from 200,000 at the start of the 1970s to a peak of about 1.6 million in 2009.  While the total inmate population has declined by 2.9 percent since then, several states that approached reform more aggressively have already reduced their prison populations by far more. California, New Jersey, New York and Rhode Island have done so by more than 20 percent.

These states have shown that it is possible to shorten sentences — or divert offenders to community supervision — without compromising public safety.  But even bolder reforms to the sentencing system will be necessary to bring the prison census down to where it should be and reverse the corrosive effects of mass incarceration....

A new report by the Brennan Center for Justice at New York University School of Law provides a blueprint for further reforms.  It calls on states to mandate alternative sentences like drug treatment, probation or community service for low-level crimes like drug possession, minor drug trafficking, minor fraud, forgery and theft, which account for 25 percent of the nation’s prison population.  Judges would have the flexibility to hand down prison sentences in exceptional circumstances, as in the case of serious, repeat offenders.

The report also recommends a reduction in sentences for major crimes that account for a majority of the prison population — aggravated assault, murder, nonviolent weapons offenses, robbery, serious burglary and serious drug trafficking. (Under such a system, the typical inmate convicted of, say, robbery would serve 3.1 years, as opposed to 4.2.)  If these reforms were retroactively applied, the authors estimate, more than 200,000 people serving time for these crimes would be eligible for release.

Under a saner system, the report says, nearly 40 percent of the country’s inmate population could be released from prison without jeopardizing public safety. This would save states $200 billion over the first 10 years — enough to hire 270,000 new police officers, 360,000 probation officers or 327,000 teachers.

The preliminary reforms that many states already have enacted reflect a growing realization that mass incarceration is economically unsustainable and socially disastrous. But to reverse four decades of bad policy, state lawmakers will have to adopt a more decisive and systematic approach to sentencing reform.

Though I am inclined to embrace the essential elements of this editorial, it strikes me as politically and practically tone-deaf in many respects. Politically, the editorial could and should have emphasized the significant number of "red states" that have reduced their prison populations, states like Texas and Georgia and South Carolina and Mississippi. Practically, the editorial could and should have acknowledged that some violent crime (especially murder) and heroin problems have been increasing in recent years, which in turn suggests and demands that states and the federal government focus on fighting crime smarter and not just tougher.

December 25, 2016 at 12:33 PM | Permalink


My home state, Kentucky, tried to address its rapidly increasing prison and jail populations in 2011, with the effectiveness of HB 463. In 2008-2010, Kentucky had one of the fastest increasing (in percentage terms) prison populations in America (which was a financially unsustainable trend in the state with the most under-funded ($35 billion) state pension plans in America). The changes included making most misdemeanors (excluding DUIs and other crimes where the defendant is a danger to himself and others) non-arrestable offenses, with only a citation being given! The unfettered discretion of Judges to revoke probation and parole, even for technical violations, was removed and Judges were required to consider drug treatment and other options in the community, as well as short jail punishments as an alternative to imposing the entire unserved ( probated or paroled) time period. Incentives were imposed for the Parole Board to let more people out of prison sooner than had occurred in the past. Yet, Kentucky's prison populations did not decline as much as the Legislature had hoped (the Judges and Parole Board didn't fully cooperate), and Kentucky's prison population is now increasing again. There have also been collateral consequences, including searches (usually revealing illegal drugs and guns) incident to (now) unlawful arrests being suppressed, as the police continued to arrest people for misdemeanor crimes (such as driving on a suspended license) that are no longer arrestable offenses. And controversially, the appellate Courts have held that the 1978 shoplifting statute still gives the police discretion about whether to arrest defendants for stealing small amounts of merchandise. IT looks like the Kentucky Legislature will have to now consider additional options for reducing the prison population here.

Posted by: Jim Gormley | Dec 25, 2016 1:15:03 PM

The statement that 40% of prisoners could be released without public safety problems has some requirements.

1) a certificate from the Justice Department of absolute legal immunity for all information gathered;

2)a review of the dockets of the prisoners;

3) in depth interviews about the hundreds of crimes that were not prosecuted committed by each prisoner;

4) rehabilitation and job prospects that are as lucrative and otherwise as rewarding as crime upon release.

Posted by: David Behar | Dec 26, 2016 10:46:33 AM

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