November 10, 2003 - The New York Times

With Cash Tight, States Reassess Long Jail Terms

By Fox Butterfield

OLYMPIA, Wash., Nov. 6 - After two decades of passing ever tougher sentencing laws and prompting a prison building boom, state legislatures facing budget crises are beginning to rethink their costly approaches to crime.

In the past year, about 25 states have passed laws eliminating some of the lengthy mandatory minimum sentences so popular in the 1980's and 1990's, restoring early release for parole and offering treatment instead of incarceration for some drug offenders. In the process, politicians across the political spectrum say they are discovering a new motto. Instead of being tough on crime, it is more effective to be smart on crime.

In Washington, the first state in the country to pass a stringent "three strikes" law by popular initiative a decade ago, a bipartisan group of legislators passed several laws this year reversing some of their more punitive statutes.

One law shortened sentences for drug offenders and set up money for drug treatment. Another increased the time inmates convicted of drug and property crimes could earn to get out of prison early. Another eliminated parole supervision for low-risk inmates after their release.

Taken together, these laws "represent a real turning point," said Joseph Lehman, the secretary of the Washington Department of Corrections, who was a major supporter of the legislative changes. "You have to look at the people who are behind these laws," Mr. Lehman said. "They are not all advocates of a liberal philosophy."

A major backer who helped persuade the Legislature to pass the new drug policy was Norm Maleng, a conservative Republican who has been the King County prosecutor in Seattle since 1979 and was a sponsor of a 1980's law that doubled sentences for drug convictions.

"It was a little like Nixon going to China when Norm went down to the Legislature to persuade them to support this," said his chief of staff, Dan Satterberg.

The new laws will save Washington a projected $45 million a year. But equally important, Mr. Satterberg said, the new drug policy "is a recognition that you can't incarcerate your way out of this problem."

"There has to be treatment as well as incarceration," he said.

Still, Dave Reichert, the Republican sheriff of King County, along with other sheriffs in the state, opposed the law allowing offenders to earn more time for good behavior because, he said, he was afraid some of those released were violent criminals. "I'm worried that this is a first step in a long road that could take us decades to recover from," he said.

In Kansas, faced with the need to build $15 million worth of prisons, the Legislature passed a law this year mandating treatment instead of incarceration for first-time drug offenders who did not commit a crime involving violence. The law is expected to divert 1,400 offenders a year, a significant proportion of Kansas' 9,000 inmates.

"I think we are realizing that there is a smarter way to deal with criminals, rather than just being tough on them and putting them away for the rest of their lives," said John Vratil, a Republican who is chairman of the State Senate Judiciary Committee.

"Even those people who favor being tough on crime don't want to find the money to build more prisons and go back on their pledge of no new taxes," Mr. Vratil said. "So they are choosing between the lesser of two evils." Will this new approach last when the economy recovers? Mr. Vratil thinks it will.

"What started out as an effort to save money has evolved into an appreciation for good public policy, and this has enabled legislators who were initially reluctant about it to support it," he said.

Michigan has dropped its lengthy mandatory minimum sentences for drug offenders, among the toughest in the nation. Iowa, Missouri and Wisconsin have taken steps to ease their "truth in sentencing" laws, which require inmates to serve most of their sentences before being eligible for release.

Colorado has sought to reduce the large number of former inmates who are sent back to prison for technical parole violations, like failing a urine test or not showing up for an appointment with a parole officer. A new Colorado law limits the amount of time nonviolent offenders can be sent back to prison to 180 days.

Missouri has passed a law allowing inmates convicted of property crimes to apply for release after only four months, instead of having to serve one-third of their time, usually four to seven years.

These changes reflect an important national trend, said Daniel Wilhelm, director of the State Sentencing and Corrections Program at the Vera Institute of Justice in New York City. "People thought parole was dead, the idea of early release from prison," Mr. Wilhelm said, because in the 1980's and 1990's many states outlawed parole as part of the get-tough-on-crime movement.

"But parole is alive and well," he said, because of the twin pressures of budget deficits and the continued growth in the nation's prison population, even as the crime rate has fallen or leveled off over the past decade. There are now 2.1 million Americans in jail or prison, quadruple the number in 1980.

The New York Legislature quietly took two steps this year, with the support of Gov. George E. Pataki, that are tantamount to making parole easier to get in order to save money, Mr. Wilhelm said.

The first law enables inmates convicted of nonviolent crimes to earn a certificate for good behavior, which makes them eligible for a program called presumptive release, under which they can be paroled without going before the parole board.

An estimated 1,185 inmates a year will be released early this way, saving the state $21 million, said Robert Gangi, executive director of the Correctional Association of New York, a prison research and advocacy group.

Under the other new law, offenders convicted of some of the most serious drug crimes will for the first time be able to shorten their prison term by up to one-third by avoiding discipline problems and by staying in education or other programs. This means that an inmate serving a sentence of 15 years to life for the possession of a small amount of drugs, under the Rockefeller-era drug laws, could now get out in 10 years, Mr. Gangi said.

Sheldon Silver, the speaker of the New York State Assembly, described the two laws as significant steps, but said they still fell far short of repealing the drug laws.

Even Alabama, one of the most conservative states, now has a sentencing commission that has made reform recommendations, which the Legislature has begun to enact this year.

"I've been in the attorney general's office 30 years," said Rosa Davis, the chief assistant attorney general in Alabama, "and we've been the 'lock them up and throw away the key' office. We're now learning the difference between being tough on crime and smart on crime."

In Alabama, a severe fiscal crisis is forcing some of these changes, Ms. Davis acknowledged. "We've cut spending on prisons so far that our prison system now looks like a third world country," she said. Some prisons are so crowded they are operating at almost double their capacity.

One new law this year raised the monetary threshold for prosecuting property crimes to $500 from $250, to try to keep the flow of new inmates down. Under another new law, low-level offenders will be kept in work release programs or sent to drug treatment. Alabama was one of the few states not to have such alternatives to prison.

Here in Washington, the budget crisis has also made the changes possible, said David Boerner, a former prosecutor who is now chairman of the Washington Sentencing Guidelines Commission. "The fiscal crisis has brought together the folks who think sentences are too long with the folks who are perfectly happy with the sentences but think prison is costing too much," Mr. Boerner said.

The new Washington drug law will lower sentences for drug offenses and allow judges to send offenders to treatment instead of prison, with the opportunity to have the charges against them dropped if they successfully complete the program. Money for treatment will come from money saved by the reduction in the number of drug offenders in prison.

One of the most sweeping changes in the nation was Michigan's repeal of its mandatory minimum drug sentences. The reform is projected to save the state $41 million this year, according to a report by Families Against Mandatory Minimums, an advocacy group.

Under the new law, not only were drug penalties drastically reduced, but inmates already in prison became eligible for earlier release. Karen Shook, for instance, a 44-year-old single mother of three, was serving a 20- to 40-year sentence for conspiracy to sell two and a half ounces of cocaine. It was her first arrest, and Ms. Shook said she thought her sentence was particularly harsh because she was only an intermediary. The actual dealer received a three-year sentence.

"I got longer than most people get for violent crimes," she said. But under the revised law, Ms. Shook became eligible for parole in April, after she had served 10 years, and she has now returned to her home near Lansing.

"In the end, the impossible happened," Ms. Shook said. "I had appeal after appeal turned down by the courts, and then it was the Legislature that wrote the law the other way and got me out."

Copyright 2003 The New York Times