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 800 600 400 200 0 1960 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014 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. 2 Trends in State Courts 2016 Keynote U.S. Violent Crime Rate, 1960-2014 per 100,000 Population 800 600 400 200 0 1960 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014 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