2016 Trends in State Courts Special Focus on Family Law and Court Communications

Trusted Leadership. Proven Solutions. Better Courts. www.ncsc.org Keynote

Keynote

Recent Sentencing Reform Initiatives to Reduce Recidivism, Promote Fairness, and Control Costs

Roger K. Warren President Emeritus, In 2008, 1 of every 100 adult Americans National Center for State Courts was confined in an American prison or jail, the highest incarceration rate of Faced with increasing crime rates in the mid-1970s, federal any nation in the world and six to nine and state policymakers implemented increasingly punitive and times the incarceration rates of western ineffective criminal-sentencing policies. This article highlights European countries. Thirty-six states recent state and federal sentencing reform initiatives to address and the District of Columbia have higher incarceration rates than the country the consequences and failures of those sentencing policies. with the next highest incarceration rate, Cuba. The U.S. has less than 5 percent of the world population and The History and Consequences almost 25 percent of its prisoners. of Prevailing U.S. Sentencing Policies

Throughout most of the 20th century, American “indeterminate,” where the form and length of penal policy focused on “rehabilitation.” the sentence were not specifically determined The “rehabilitative ideal” referred to using by a judge at the time of sentencing but penal and corrections institutions to restore entrusted to prison and parole authorities an offender to a condition of law-abiding to determine later in light of the offender’s behavior. State and federal sentencing schemes demonstrated degree of rehabilitation while to accomplish that purpose were primarily incarcerated or under supervision.

Recent Sentencing Reform Initiatives to Reduce Recidivism, Promote Fairness, and Control Costs 1 U.S. Incarceration Rate, 1960-2014 All Prisons and Jails per 100,000 Population

Source: Federal Bureau of Investigation - Uniform Crime Reports

There were many problems with indeterminate Almost simultaneously with enactment of the sentencing schemes. They led to significant U.S. Sentencing Reform Act in 1984, the country sentencing disparities, whereby offenders convicted was engulfed in the crack-cocaine epidemic. of similar crimes with similar criminal histories Violent crime increased 41 percent between 1983 served substantially different sentences, and and 1991. Through the War on Drugs, the federal corrections officials had little accountability government and over 30 state governments for their broad exercise of discretion. enacted “mandatory minimum” statutes, which prescribed mandatory and lengthy prison sentences More importantly, they did not work. By the mid- for drug and other offenders. Although violent 1970s, it was clear that indeterminate sentencing crime began to fall sharply after 1991, further was ineffective in deterring crime and changing “tough-on-crime” legislation was enacted in offender behavior. Violent crime tripled between 1960 the 1990s—for example, “Three Strikes and and 1975—the fastest growth in America’s violent You’re Out” laws in Washington and California crime rate ever recorded. Furthermore, nothing and long federal and state sentences for certain seemed to change offender behavior. Indeed, habitual offenders, usually 25 years to life in “nothing works” was the apparent conclusion of prison for third-time violent offenders. some of America’s top criminologists. The American public lost confidence in sentencing and correc- The Sentencing Reform Act also required tions policies and in judges and other officials federal prisoners to serve at least 85 percent who administered them. Legislators responded of their sentences. The 1994 U.S. Crime with more punitive, “tough-on-crime” alternatives. Bill appropriated $850 million for prison construction in states that enacted similar In the mid-1970s, American penal policy shifted “truth-in-sentencing” provisions, which

1 Unless otherwise noted, toward a focus on “just deserts” and “limited happened in 35 states and the District of Columbia. statistics in this article regarding crime rates, retributivism.” Many states, and in 1984 the incarceration and federal government, adopted “determinate” The impact of these policies on corrections imprisonment rates, and corrections sentencing systems, which establish a specific populations, corrections costs, and offenders of populations and costs are based on published sentence, sentence range, or sentence alternative color, in particular, was dramatic. From 1978 data from the U.S. Department of Justice, for each crime in light of the defendant’s criminal to 2008, the number of prisoners in state and Pew Center on the States, history. These sentences are determined either federal prisons increased from 294,000 to and International Center for Prison Studies. by statute or through “guidelines” established almost 1.4 million.1 by a sentencing commission.

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U.S. Violent Crime Rate, 1960-2014 per 100,000 Population

Source: Federal Bureau of Investigation - Uniform Crime Reports

From 1980 to 2013, federal relevant scientific research prison spending increased “Given the small concluded: “The increase in almost sevenfold, and state crime prevention incarceration may have caused a corrections costs quadrupled, effects of long prison decrease in crime, but the becoming the fastest growing sentences and magnitude of the reduction is item in state budgets (after the possibly high highly uncertain and the results of Medicaid). Between 1983 and financial, social, most studies suggest it was unlikely 2008, 88 percent of new state and human costs to have been large…. Given the spending for corrections went of incarceration, small crime prevention effects of to prisons, rather than parole federal and state long prison sentences and the or probation. By 2008, prisons policy makers possibly high financial, social, and accounted for almost 90 percent should revise human costs of incarceration, of state corrections costs, while current criminal federal and state policy makers 70 percent of offenders were on justice policies should revise current criminal either probation or parole. The to significantly justice policies to significantly average daily cost to manage an reduce the rate reduce the rate of incarceration offender on probation or parole of incarceration in in the United States.”2 2 J. Travis, B. Western, and S. Redburn (eds.), The is about $3 or $7, respectively; the United States.” Growth of Incarceration in the United States: the daily cost of maintaining an National Research Council of the There is also no evidence that Exploring Causes and Consequences (Wash- offender in state prison is $79. National Academy of Sciences, 2014 our prevailing crime policies ington, DC: National Re- lowered recidivism rates, and search Council, National Academies Press, 2014). Like the sentencing and corrections policies in some evidence that they resulted in higher place during the first three-fourths of the 20th recidivism. U.S. Bureau of Justice Statistics century, the most important question about the (BJS) data, for example, indicates that 64 policies inaugurated in the late 1970s is whether percent of felony defendants arrested in 2006 had they actually “worked,” i.e., were effective in at least one prior felony arrest, up from 55 percent reducing crime and recidivism. Much has of felony defendants in 1992, and that 43 percent been written about the impact of our “mass had at least one prior felony conviction, incarceration” policies on U.S. crime rates, which up from 36 percent in 1992. The National continued to rise until the early 1990s and have Research Council also reviewed the scientific been consistently declining over the past 15 years. research on the “criminogenic” effects of The most recent and exhaustive review of the imprisonment and concluded that current

Recent Sentencing Reform Initiatives to Reduce Recidivism, Promote Fairness, and Control Costs 3 evidence “consistently points either to no effect support that conclusion. The average re-arrest or to an increase rather than a decrease in rate of state prisoners released in 1994 was recidivism. Thus, there is no credible evidence 5 percent higher than the re-arrest rates of of a specific deterrent effect of the experience prisoners released in 1983, when the incarcer- of incarceration.” Data from BJS appear to ation rate was roughly half what it was in 1994.

Recent State Sentencing Reform Initiatives

Today, there is broad bipartisan support, dating based sentencing back to at least 2006, for reform of both state practices to reduce and federal sentencing practices. Reform recidivism are efforts began in the states and have proceeded referred to as along three different but related paths: first, “evidence-based establishing sentencing practices, especially sentencing” (EBS). for offenders not sentenced to prison, that With initial financial support from the State are more effective in changing behavior Justice Institute and others, and subsequently and reducing recidivism; second, seeking largely through participation in Pew Charitable to change state sentencing policies through Trusts’ Public Safety Performance Project (Pew), legislation and administrative rulemaking; and and under the direction of the CCJ/COSCA Joint third, relying significantly on court orders and Standing Committee on Criminal Justice, NCSC voter initiatives, as evidenced in California. has published extensively on the topic and worked directly with judges and court leaders in over Evidence-Based Sentencing 30 states to implement EBS practices. In most states, EBS reforms have focused on improving With the support of the Conference of Chief outcomes for offenders on community supervision Justices (CCJ) and Conference of State Court (probation) by encouraging judges to focus Administrators (COSCA), the National Center supervision and interventions on medium- and for State Courts (NCSC) launched a sentencing high-risk offenders (not on low-risk offenders) reform project in 2006. Building on the success and on the individual offender’s specific risk of drug courts and other “problem-solving” factors, along with increased use of programs courts, state court leaders concluded that shown to be effective in reducing recidivism, their main sentencing reform objective was incentives, and swift, certain, and proportionate “to promote public safety and reduce recidivism sanctions in responding to the behaviors of through expanded use of evidence-based offenders under supervision. practices, using programs that work and offender risk and needs assessment (RNA) tools.” …improved offender outcomes In 2007 CCJ and COSCA adopted a formal and reductions in recidivism can resolution supporting “state efforts to adopt be achieved through an informed, sentencing and corrections policies and practical, and collaborative programs based on the best research evidence approach to the implementation of practices shown to be effective in reducing of evidence-based sentencing… recidivism.” In the state courts, these research-

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In 2007, for example, the Arizona Supreme Court established a Center for Evidence Based Sentencing. The center oversaw incorporation of information from the state’s validated RNA instrument into all Arizona felony presentence reports. That, and related evidence-based reforms, reduced the new felony conviction rate among Arizona felony probationers by 38 percent over the next five years. Judicial leaders in Idaho, Indiana, and West Virginia have also directed that RNA information be included in felony presentence reports, and in at least four other states (Colorado, Kentucky, Tennessee, and Wisconsin), RNA driving the state’s prison population growth and information has been incorporated into presen- related criminal justice spending, and then develop tence reports statewide at the initiative of the and implement alternative policies that generate legislature or department of corrections. Local savings and increase public safety. The resulting trial courts in many other states have also savings are then reinvested in evidence-based incorporated RNA information into their felony- strategies that can more effectively decrease sentencing proceedings. A federally funded pilot crime and hold offenders accountable. project in California to assess the impact of the use of RNA information by judges at sentencing Texas is often credited with implementing and in probation violation proceedings concluded: the first significant JRI. In 2007 Texas was “Taken as a whole, this study’s findings suggest facing a $2 billion prison expansion while more that improved offender outcomes and reductions in than 2,000 offenders awaited placement for recidivism can be achieved through an informed, substance abuse or mental health treatment. practical, and collaborative approach to the The conservative Republican chair of the implementation of EBP, including both the use of House Corrections Committee teamed with the evidence-based presentence investigation and more liberal Democratic chair of the Senate supplemental/violation reports and effective Criminal Justice Committee to secure legis- 3 3 T. Agnese and S. Curran, supervision and case management practices.” lative approval of a reform package that saved “The California Risk Texas most of the projected $2 billion and Assessment Pilot Project: The Use of Risk Justice Reinvestment reinvested over $241 million of the avoided costs and Needs Assessment Information in Adult in an array of evidence-based strategies to reduce Felony Probation Sentencing and Violation Most state sentencing policy reforms over the past recidivism, including drug courts; other substance Proceedings,” report ten years have been spearheaded by the Justice submitted to the State abuse, mental health, and residential treatment Justice Institute and Reinvestment Initiative (JRI) sponsored by Pew and programs; and incentives to promote compliance National Institute of Corrections the U.S. Department of Justice’s Bureau of Justice with terms of supervision and swift and graduated for the Judicial Council of California, Administration. JRI is a data-driven approach to sanctions to address technical violations of December 2015, p. 9. improving public safety under which a national the conditions of supervision (violations not technical assistance provider helps a bipartisan, based on absconding or commission of a new interbranch state work group to analyze the state’s offense). The crime rate in Texas subsequently criminal justice data to understand the factors fell to its lowest level since the early 1970s.

Recent Sentencing Reform Initiatives to Reduce Recidivism, Promote Fairness, and Control Costs 5 Since 2007, more than 25 states have implemented Although it is far too early for any definitive bipartisan JRI projects. Although JRI often national evaluation of the success of JRI, a national generates many prison- and parole-related reforms assessment by the Urban Institute in 2014 of eight as well, typical sentencing-related reforms include: states in which JRI policies had been legislated in 2010 or later, and actually in effect for at ƒƒ reducing the penalties for drug and property least one year, found that prison populations crimes by reclassifying offenses (including had been reduced in those states since the from felony to misdemeanor) and eliminating start of JRI. Total projected savings resulting or reducing mandatory minimum and other from averted prison operating and construction sentence enhancement provisions costs amounted to as much as $4.6 billion, of which $165.8 million had been reinvested. ƒƒ expanding presumptive probation provisions for lower-level drug and property offenses Court Orders and Voter Initiatives (California) ƒƒ expanding availability of presentence risk/needs and other assessments In August 2009, a three-judge federal court found that due to overcrowding in California’s prison ƒƒ revising definitions of drug-free school zones system, the provision of medical and mental health ƒƒ limiting revocations of probation for services to state prison inmates was severely technical violations inadequate and constituted cruel and unusual punishment. California was ordered to reduce ƒƒ implementing probation reform, including the prison population to 137.5 percent of design shortening lengthy terms of probation, using capacity, a reduction of about 40,000 inmates. performance-incentive funding, and expanding use of RNAs, earned discharge, graduated In October 2009, while the state’s appeal of the sanctions and rewards, administrative trial court’s order to the U.S. Supreme Court was sanctions, and other evidence-based practices pending, the state enacted a program to reduce ƒƒ expanding availability of intermediate probation revocations to prison by providing fiscal sanctions (e.g., electronic monitoring) and incentives to county probation departments to evidence-based community interventions, reduce revocations to prison through the use of including cognitive behavioral interventions evidence-based supervision services, including RNA and expansion of the Hawaii Opportunity tools, offender incentives, and swift, certain, and Probation with Enforcement (HOPE) proportionate sanctions. By 2015, according to the program and drug, behavioral health, California Judicial Council, the program had and other specialty courts decreased probation revocation rates by 29 percent (compared to the 2006-08 base years), resulting in statewide savings of $970 million, 60 percent of Total projected savings resulting which was reallocated to county probation depart- from averted prison operating ments to further implement the evidence-based and construction costs amounted supervision practices that produced the savings. to as much as $4.6 billion, of which $165.8 million had been reinvested. After the Supreme Court upheld the trial court’s Urban Institute, 2014 - study of eight states implementing JRI order in 2011, the legislature enacted “Public Safety (Justice Reinvestment Initiatives) Realignment,” further reducing the state prison

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population by transferring responsibility for To obtain the potential reductions, inmates had incarcerating and supervising certain lower-level to file individual petitions with a federal judge. felons and parolees from state to local Judges reportedly granted about 75 percent of the government. In November 2012, California petitions, and 6,000 federal inmates obtained early voters approved Proposition 36, which revised release in November 2015—the largest one-time California’s tough three-strikes law and allowed release of federal prisoners in history. The many inmates sentenced for nonserious and commission estimated that an additional 8,550 nonviolent offenses to petition the courts for inmates would be eligible for early release over the shorter prison terms. next year. Eventually, almost half of all imprisoned federal drug offenders may qualify for early release. Despite the three actions described above, in More recently, the Justice Department has also October 2014 the state was still almost 3,000 inmates instructed its prosecutors not to charge most above the court-mandated target. In November low-level, nonviolent drug offenders with 2014, California voters passed Proposition 47, offenses carrying mandatory sentences. which converted many lower-level drug and property offenses from felonies to misdemeanors A further proposed reform, the Smarter Sentencing and, like reinvestment legislation in other states, Act, introduced in both the House and Senate in specified that the resulting savings be directed 2014, would allow the Fair Sentencing Act of 2010 toward mental health and drug abuse treatment, to be applied retroactively and could reduce many anti-truancy efforts, and victim services. According federal mandatory minimum sentencing provisions. to the Public Policy Institute of California, by January 2015 California’s prisons dropped below Current federal-sentencing-reform proposals 137.5 percent of design capacity for the first time have been inspired by the successful state in recent memory. California’s total prison reforms described earlier. As recently as population had declined 45 percent since its March 2015, for example, Senate Judiciary peak in 2006, resulting in California’s lowest Chairman Chuck Grassley (R-IA) had been incarceration rate since the mid-1990s, while publicly committed to kill any federal legis- crime rates were at levels last seen in the 1960s. lation softening federal mandatory minimum sentences. Yet, barely six months later on Recent Federal Sentencing Reform Initiatives October 1, he joined half a dozen of the Senate’s most powerful Democrats and The initial federal sentencing reforms resulted Republicans in announcing new legislation, from recommendations and actions of the U.S. the Sentencing Reform and Corrections Act Sentencing Commission to reduce federal crack of 2015, that does exactly that, calling it “the v. powder cocaine sentencing disparities and biggest criminal-justice reform in a generation.” culminated in enactment of the Fair Sentencing In an October 2015 interview with Rolling Stone Act of 2010, which prospectively reduced the magazine, he explained that it was learning cocaine-sentencing disparity from 100:1 to 18:1. about the state reforms that changed his mind: In 2014 the commission also reduced federal “I’ve learned from what some states have done, sentencing guidelines for most drug-trafficking changes could be made and money could be offenses, potentially shaving an average of about saved and not hurt society with people that two years off sentences averaging over ten years. do harm coming from behind bars.”

Recent Sentencing Reform Initiatives to Reduce Recidivism, Promote Fairness, and Control Costs 7 Another key source of support for the “This nation’s war on drugs focused on criminal Sentencing Reform and Corrections Act of punishment instead of treatment has been a 2015 and other proposed federal sentencing complete failure. At long last there is growing reforms, and one that traces back to the bipar- support for changing that. Iowa’s senior tisan support for the Texas JRI in 2007, has senator should not stand in the way.” been the rapidly growing support for reform among many of the country’s most prominent In October 2015, the Sentencing and Corrections thought leaders on the political right. In Reform Act passed out of the Senate Judiciary December 2010, the Texas Public Policy Committee on a bipartisan vote of 15 to 5. Foundation launched its “Right On Crime” In addition to its revisions of existing mandatory initiative, a “one-stop source for conservative minimum sentencing provisions, it also provides ideas on criminal justice,” supported by many retroactive effect to the Fair Sentencing Act, contains national leaders of the conservative movement, compassionate-release provisions for older inmates, including , , Bill expands earned-time credits to allow some offenders Bennett, , and . to earn extra credits for participating in recidivism reduction programs, and establishes a demonstration The Right on Crime website explains: project to pilot promising reentry programs.

Conservatives The pending bill that most dramatically are known for reflects the influence of state sentencing being tough on reforms is the bipartisan Safe Justice Act crime, but we must also be tough on criminal bill introduced in the House in 2015. The bill justice spending. That means demanding more restricts and reduces application of many cost-effective approaches that enhance public mandatory minimum sentencing provisions safety. A clear example is our reliance on prisons, in drug and weapons cases and makes those which serve a critical role by incapacitating changes, as well as the provisions of the dangerous offenders and career criminals but Fair Sentencing Act, retroactive. Like the are not the solution for every type of offender. Sentencing and Corrections Reform Act, the And in some instances, they have the unintended bill also contains compassionate-release and consequence of hardening nonviolent, low-risk earned-time-credit provisions for offenders offenders—making them a greater risk to the participating in recidivism reduction programs. public than when they entered. The bill also contains many other provisions modeled on similar provisions contained in Right on Crime and other conservative advocacy state-sentencing-reform legislation: groups consistently supported the state JRI reforms ƒƒ expanding use of probation for described above and more recently have been first-time, nonviolent offenders joined by the Koch brothers, religious leaders, and other conservative advocacy groups to promote ƒƒ expanding earned-time credit for federal sentencing reform as well. Indeed, compliance with terms of supervision between March and October 2015, 130 faith leaders ƒƒ requiring development of graduated from Senator Grassley’s home state of Iowa blasted sanctions grids for use in probation current federal sentencing policy, while the and post-prison supervision editorial board of the Des Moines Register opined,

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ƒƒ placing a 60-day cap on confinement for technical violations

ƒƒ encouraging development of drug courts and other problem-solving courts

ƒƒ establishing a performance-incentive-funding pilot program to reduce revocations to prison

ƒƒ requiring half-way house contracts to contain recidivism-reduction performance provisions

ƒƒ requiring the inclusion of fiscal impact statements in sentencing bills and that federal agencies report on Hispanics are incarcerated in the United States federal-offender-recidivism rates at a rate 84 percent higher than whites, and African-Americans at a rate five times that of whites. Conclusion If U.S. state and federal imprisonment rates remain what they were in 2001, 1 in 3 black males born that year, and 1 in 6 Latino males, will go to prison As a result of recent sentencing and corrections at some point during their lifetimes compared to reforms, 2014 was the sixth consecutive year 1 in 17 white males. A similar pattern exists among of reduction in the nation’s imprisonment rate, women, although women are about six times less while both violent and property crime rates likely to go to prison. simultaneously declined for the fifth time in seven years and, at the end of 2014, were about 2010 Census Data 25 percent below their 2007 levels.

Although the indeterminate sentencing prior conviction, and 48 percent had more than policies that prevailed up to the mid-1970s and one prior conviction. It is fair to say that most determinate sentencing policies that have been felony crime is committed by offenders who in place until recently differ in many respects, have been through the criminal justice system they share one feature in common: both proved before, and the obvious question is why our relatively ineffective in reducing crime and sentencing policies and practices have been so recidivism. If the belief in the mid-1970s that ineffective in changing offender behavior and nothing works to change offender behavior led reducing recidivism. The question is especially to the sentencing policies that have prevailed pertinent today because, unlike 40 years ago, until recently, we have now learned that those there is a solid body of scientific research prevailing policies did not work either. BJS data supporting EBS practices that reduce recidivism. indicates that 77 percent of felony defendants The most promising feature of recent reform in 2006 had been previously arrested, and 35 initiatives may well be the extent to which the percent had been previously arrested ten or state initiatives and some recent federal initia- more times. Sixty-one percent had at least one tives incorporate those EBS practices.

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