Broadening National Bipartisan Conversation - National Association for Public Defense

Broadening national bipartisan conversation on our responsibility to reduce incarceration. A remarkable shift is taking place in our country. Liberals and conservatives disagree on so many issues yet increasingly there is common ground amongst political forces on the need to reduce our correctional costs, make sure correctional interventions are not counterproductive, and reduce government’s promotion of over incarceration. Along with many others, I recently was invited to attend a PEW Summit on Justice Reinvestment in November 2014. Four hundred professionals from 30 states gathered to make further progress on reducing incarceration. Kentucky participants included Corrections Commissioner, LaDonna Thompson; AOC Director Laurie Dudgeon; DCBS Commissioner Teresa James; Henderson County Attorney Steve Gold; Justice and Public Safety Secretary Michael Brown; DJJ Commissioner Bob Hayter, Cabinet for Health and Family Services Dana Cox Nickles; KY Chamber of Commerce Director of Public Affairs Ashli Watts; and myself.

To spur us on and to demonstrate that this is not a conservative or liberal issue but a common sense issue, Grover Norquist and Newt Gingrich along with Van Jones addressed us about our responsibility to reduce correctional costs. Gingrich supported California 2014’s Prop 47 which just passed. It lowers penalties for crimes, reducing felonies to misdemeanors. The measure was promoted by George Gascón, San Francisco District Attorney, and William Lansdowne, former San Diego Police Chief Gingrich. Gingrich and Van Jones are working on an initiative to cut the prison population by 50|PERCENT| over the next decade called #cut50.

Norquist said that conservatives assumed the criminal justice professionals were properly handling things so conservatives weren’t paying attention to the fact that correctional costs were rising without the outcomes to support the extensive government expenditures. He said left-right coalitions on criminal justice reforms are happening and are an opportunity for greater reform. According to Norquist, the huge expense of corrections has gotten conservatives’ attention that has opened people to new ideas. He said Texas is a good example that has worked, saving money. Analyzing the challenge, Norquist said that “the conservatives… helped to create part of the problem and…. I just assumed that the wardens and the prosecutors were taking care of this….and we measured inputs instead of outputs.” Conservatives want to move away from mass incarceration and “reduce crime as rapidly and as seriously as possible while spending less money but the real cost of doing this wrong are broken families, destroyed neighborhoods and lives that didn’t need to be stunted.”

Van Jones discussed a need for reform in the pretrial, sentencing and reentry areas and said that the red states have made more progress on reducing correctional costs than the blue states. Gingrich noted Chuck Colson was a “genuine moral force” bringing attention to incarceration problems. Gingrich said, “Facts matter….You just had to look at the data and realize that we were putting way too many people in jail. You cannot be a conservative who inherently distrusts government and who inherently favors personal freedom and look at the number of people in jail in the United States and not be deeply troubled….The weight of fact forced a number of us to say we didn’t get it quite right and we better go back and rethink it….”

PEW has posted video of its plenary and keynote sessions online at this link.

There are a variety of ideas that will safely accomplish the objective of smartly reducing costs in a way that ensures safety. Most of the ideas include modestly reducing the discretion of the parole board, judges, and prosecutors to increase the safe release of persons who have been evaluated by evidence-based, validated risk assessments as having a low risk of reoffending. And additionally, the unnecessary incarceration of certain people has unintended negative consequences. For instance, there is substantial Kentucky data indicating that keeping low risk offenders in jail for just a few days is correlated with future criminal activity. The Arnold foundation’s Pretrial Criminal Justice Research study found that, “when held 2-3 days, low-risk defendants were almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours.”

There is a growing number of thinking in Kentucky calling for smart reduction of correctional costs. For instance, the Kentucky Chamber of Commerce’s report, The Leaky Bucket: 5 Years Later (July 2014), makes the following correctional recommendations:

“Continue full implementation 2011 sentencing reform legislation to control the growth in corrections costs and carefully consider legislative efforts to increase penalties that will result in higher corrections cost. County jails remain one of the most significant costs for Kentucky communities. Yet, jails have many low and moderate risk pretrial detainees being unnecessarily housed at county expense. State prison costs continue to increase and remain the most significant share of the Kentucky criminal justice system with 36|PERCENT| of total system funding. Yet, many low risk inmates remain imprisoned even though they could safely be released. Increased funding for rising correctional costs dries up funds for important local needs. In FY14 $490 million was spent on state prisons. Between FY12-14, there was $61 million allocated as a necessary governmental expense for a prison population that exceeded the forecasted level. While our crime rates decline, our correctional costs increase.

Continue this positive trend in more appropriate use of expensive corrections resources with full implementation of 2014 juvenile justice legislation. The General Assembly should also continue reviewing the Kentucky Penal Code with the goal of creating more alternative to incarceration for low-level, non-violent crimes and focus on jail time for more serious offenses. Potential areas for review recently identified by the Kentucky Department of Public Advocacy include:

Alternative sentencing for flagrant non-support instead of imprisonment for a felony
Modification of the persistent felony offender statute
Increasing the dollar amount for the felony theft limit
Presuming parole for eligible low-risk offenders
Adoption of a “clear and convincing” standard for pretrial release
Creation of a “gross misdemeanor” classification for low-level felonies.””

The Bluegrass Institute has called for continued cost-reducing correctional reforms. Jim Waters testified to the October 2015 Interim Joint Judiciary Committee stating, “We encourage policymakers to ride the momentum created by the bipartisan support for House Bill 463 and implement these reforms, which will represent good stewardship of taxpayers’ dollars and sound, common-sense criminal-justice policy.” .” See this link.

Commonsense opportunities to reduce waste in the KY criminal justice system in 2015. County jails remain one of the most significant costs for Kentucky communities. Yet, jails have many low and moderate risk pretrial detainees being unnecessarily housed at county expense. State prison costs continue to increase and remain the most significant share of the Kentucky criminal justice system with 36|PERCENT| of total system funding. Yet, many low risk inmates remain imprisoned even though they could safely be released. Increased funding for rising correctional costs dries up funds for important local needs. In FY14, $490 million was spent on state prisons. Between FY12-14, there was $61 million allocated as a necessary governmental expense for a prison population that exceeded the forecasted level. While our crime rates decline, our correctional costs increase.

These correctional costs will increase in 2015 unless there are modest, commonsense reforms to safely reduce the waste. Some reforms that can be accomplished in 2015 include:

1.       Require parole of inmates who have been evaluated as low risk by a validated, evidence-based risk assessment.
2.       Reduce low level misdemeanors to violations that are not subject to jail sentences and that require a fine that can be prepaid.
3.       Increase pretrial release of low and moderate risk pretrial detainees who are presumed innocent by adding a “clear and convincing” standard of review for a decision by a judge who refuses release.
4.       Allow class D felonies to be expunged after 5 years of no other crimes. According to AOC and KSP, 94,645people are eligible for class D felony expungement. There is a $100 fee for a person having their felony expunged with $50 going to the general fund and $50 to the clerk. If all eligible persons had their felony expunged, $4.7 million would go to the general fund and $4.7 million to a trust and agency account for deputy clerks.
5.       Reduce low level felonies to “Gross Misdemeanors” with the cases remaining in Circuit Court and the state retaining responsibility for the cost of incarceration.
6.       Make modest adjustments to the persistent felony and violent offender laws to insure only incorrigible persons are imprisoned for lengthy periods by: a) limiting a PFO charge to persons who have been incarcerated on prior offenses, b) allowing jurors to decide in their discretion if someone should be convicted as a persistent felony offender, and c) reducing the 85|PERCENT| parole eligibility for persons convicted of violent offenses to 50|PERCENT| to give the Parole Board discretion.  In 2011, Kentucky spent more than $169,000,000 incarcerating almost 8,000 prisoners sentenced under the PFO statute, the Violent Offender statute, or both.
7.       Increase the felony theft level from $500 to $1,000 or $2,000. There are 30 states that have felony floors of $1,000 or higher. Only 15 States have felony floors of $500 or lower, as Kentucky does.
8.       Allow judges to exclude death as a possible punishment prior to trial upon a showing that the evidence does not warrant such prosecution.