| Chapter 14
Covering Sentencing
By Ted Gest
Themes For Today
Impact of Sentencing on Prison Populations
It may seem odd that the U.S. prison population has continued to increase for many years as crime totals have fallen. A combination of several factors is responsible. A major one has been that, overall, sentencing laws have been toughened. The National Opinion Research Centerhas reported for many years that the public believes that sentences are not severe enough. (See http://www.albany.edu/sourcebook/pdf/t247.pdf.)
This is due at least partly to news reports over many years about chronic criminals. Legislators have tended to view harsher sentences as a simple remedy, to keep lawbreakers off the street longer.
The underlying crime rate was a major contributor through the early 1990s. Reported crime has been dropping ever since, with some minor increases in a few time intervals since 2000 in crime reports compiled by the Federal Bureau of Investigation from state and local law enforcement agencies.
In 2007,more than 750,000 people were admitted to prisons, says the U.S. Bureau of Justice Statistics. (See http://www.ojp.usdoj.gov/bjs/pub/pdf/p07.pdf) Of these, only a little more than half were on sentences from courts, and only about one fourth of those were for violent crimes. The largest category of other new offenses bringing prison terms were drug crimes, followed by property crimes and public disorder offenses.
The other half of prison admissions consisted of probation or parole violators, but practices vary from state to state. In some states, such violators account for a large percentage of those entering prison. Because the base numbers of people on probation and parole also have been increasing, those groups are playing a big part in boosting the total prison population as states incarcerate many of them who fail provisions of their community release, often drug tests. “In essence, the entire correctional system is feeding on itself, as the larger parole and probation populations create more violations, which in turn feeds the prison system,” saysJames Austin, a consultant who advises states on corrections policy.
Despite the wave of laws providing for higher sentences, it is not actually the length of the stated sentence but rather the amount of actual time served that is driving the prisoner totals upward. The average sentence to a state prison for a violent crime dropped between 1994 and 2004 from 10 years to 7 ½ years (about five years for all convicts), according to the U.S. Bureau of Justice Statistics. (See http://www.ojp.usdoj.gov/bjs/abstract/scscf04st.htm.)
The length of time served typically is up, consultant Austin says, because of “more conservative parole board decisions and/or the passage of numerous laws restricting good time or release eligibility."
A federal survey found that because of the spread of “truth in sentencing” laws, nearly 7 in 10 state prison admissions for violent offenses by 1997 were required to serve at least 85 percent of their sentence. Each additional year to house an inmate cost about $24,000 as of 2005, says the Pew Center on the States Public Safety Performance Project, although the actual number can vary widely by state.
While the crime rate has dropped, the justice system has operated more efficiently: the likelihood that an arrest for a violent crime led to a conviction has increased. The conviction rate for violent felonies, including murder, rape, robbery, and aggravated assault, increased from 23 percent to 31 percent between 1994 and 2004, says the U.S. Bureau of Justice Statistics (See http://www.ojp.usdoj.gov/bjs/pub/pdf/fssc04.pdf ) The total number of convictions jumped 24 percent during the decade, exceeding one million nationwide in 2004.
Once they are put in custody, felons sentenced in later years of that decade were more likely to serve a larger proportion of their sentences, from a bit under half
to about two-thirds.
Advocates of longer times served correlate the trend with the drop in crime, arguing that crime started declining in the 1990s in part because inmates were serving longer terms. One problem with the argument is that the national prison population has been rising since 1980, and crime did not decrease consistently after that, instead, it peaked in 1993. Several analysts have concluded that the increased prison population accounted for somewhere between 10 percent and 25 percent of the crime decline. (See William Spelman in The Crime Drop in America Cambridge University Press, 2000).
The combined federal and state imprisonment rate, not including those in local jails, was about 250 per 100,000 population in 1988. By 2007, it had risen to 506 per 100,000, and the prison population was still rising, albeit by smaller annual percentages, at least through mid-year 2008, the last year for which national data were available.
A federal survey that included data from most state prison systems found that, between 1993 and 2003, the average length of stay behind bars increased from 21 months to 29 months. While an eight-month difference may not sound like much, multiply that by roughly 2 million people in custody, and it is clear why more cells were needed.
Options for the Future
Critics of longer sentences contend that they generally fail to accomplish much beyond the typical criminal’s peak years of activity in the teens and 20s. Not many new crimes would be committed by those who are released at age 35, yet many remain in custody far longer than that under “three strikes” laws, and that has brought higher medical treatment costs for an aging inmate population.
Some experts say crime and corrections costs both could be cut by better analysis of which convicts could benefit from supervised release in the community. One idea is that punishments like probation, fines, short jail stays and financial restitution to victims would be preferred for those who caused relatively little financial, psychological or physical harm. Some advocates of reform contend that swiftness and certainty of sentences can be more significant in reducing crime than is their length.
The Public Safety Performance Project of The Pew Center on the States has issued a policy framework for effective community corrections programs, citing those that have proved effective. Some of these will be discussed in more detail in Part Three of this guide. For details, see: http://www.pewcenteronthestates.org/report_detail.aspx?id=47134
Advocates of retaining the current practice of long sentences contend that, by and large, the appropriate people are being put in custody. Because of plea bargaining, the argument goes, many of those in prison have much more serious offense histories than is reflected by their eventual guilty plea. Supporters of harsher sentences say it is a myth that many people in custody are low-level drug users.
The current national economic crisis (and the resulting squeeze on state budgets) has prompted several states to reassess their sentencing policies. Still, previous periods of economic decline have not led to widespread changes in the sentencing laws adopted in the late 20th century, largely as a result of politicians’ fears of being labeled “soft on crime.”
As of 2009, some states were adjusting their sentencing and release practices to allow for supervision in the community of more offenders, partly to avoid the high cost of incarcerating them. But the overall impact of the latest fiscal crisis on state sentencing practices is not yet clear.
Given that comprehensive sentencing-law overhauls may be problematic, some reform advocates are pressing for “second look” laws that allow for sentence reductions when the original penalty seems unreasonable or unjust.
A discussion of experts convened in 2008 by the American Bar Association Commission on Effective Criminal Sanctions concluded that sentencing systems should include a “second look mechanism,” particularly “when a prison term is very long and a prisoner’s circumstances (or society’s views) have changed since the sentence was imposed,”says commission director Margaret Colgate Love. For example, one participant proposed creation of local “clemency advisory boards” composed of prosecutors, victims and defense lawyers, who could produce guidelines on release based in part on data involving clemency’s cost savings and public safety advantages.
For more details of this commission, see: http://www.abanet.org/dch/committee.cfm?com=CR209800
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