Poet T.S. Eliot cautioned against doing the right deed for the wrong reason — it was, he famously rhymed, “the greatest treason” — so he might look askance at the motivations for the current wave of sentencing reform. After decades of criminal-sentencing policies best described as “lock ‘em up and throw away the key,” many states are discovering that they have put too many people in prison for too many years.
Penologists have long questioned the wisdom of extensive prison terms for nonviolent offenders, but the trend toward reduced sentences does not reflect any sudden legislative sympathy for the welfare of criminals. It is based almost entirely on economics, as revenues in many states remain below pre-recession levels and budgets must be balanced for fiscal 2012 without the federal stimulus provided the past three years by the American Recovery and Reinvestment Act.
Oklahoma House Speaker Kris Steele, R-Shawnee, has done the math. He points out that incarcerating someone in an Oklahoma prison costs $56 a day compared to $8.25 a day to put the offender in community service and monitor him on GPS. With this differential in mind, the Oklahoma Legislature passed and Gov. Mary Fallin signed into law a bill expanding alternatives to jail for nonviolent offenders.
Kentucky, meanwhile, is turning away from mingling minor drug offenders with hardened criminals. A new law spearheaded by Kentucky Senate President David Williams, R-Burkesville, would send nonviolent drug offenders to treatment centers rather than jail. South Carolina and Texas are also reforming sentencing practices. Georgia has created a panel to study the criminal justice system with an eye to overhauling sentencing laws.
Steele, Fallin and Williams, who has since become his party’s nominee for governor, are Republicans, a party not normally known for advocacy of lenient sentences. But Republicans are leading the charge for sentencing reform in many states, most notably in the South. The GOP is in the driver’s seat in statehouses as a result of the 2010 elections from which it emerged in control of both legislative chambers in 26 states. Most of these states also have Republican governors.
With their majorities, Republicans acquired a responsibility for budgets, which legally must be balanced in all states except Vermont. With education and health care already taking big hits, incarceration costs have become an irresistible target, all the more so because they have risen more in the past two decades than any state expense except Medicaid. No civilized country imprisons as high a percentage of its inhabitants as the United States. More than 2.3 million people are incarcerated in our country, mostly in state prisons or local jails in which part of the costs are underwritten by the state. With 743 people per 100,000 of the population behind bars, the United States has a higher incarceration rate than China or Russia. In comparison, Canada has only 117 people in prison per 100,000; the figure for Britain and Wales is 150.
Liberal groups have long deplored U.S. sentencing policies, while conservatives have traditionally favored long sentences. A crime-weary public usually took the conservative side. Since repeat offenders commit a disproportionate number of crimes, conservatives proposed laws that required or allowed longer sentences for so-called habitual criminals. Texas had a form of a “three-strikes” law as early as 1974 and Washington state voters approved a three-strikes initiative in 1993, but the movement to send habitual offenders away for prolonged terms did not catch fire nationally until California joined the fray in 1994.
That year nearly 59 percent of California voters approved Proposition 184, a broadly worded three-strikes law that significantly increased prison terms for repeat offenders. The measure, also approved by the Legislature, was sold to the public as a means of taking violent criminals out of circulation, but it allowed prosecutors to count petty theft as one of the three strikes. In the test case under which the U.S. Supreme Court — in a 5-4 decision written by Justice Sandra Day O’Connor — upheld the California law, the third strike was the theft of three golf clubs from a Los Angeles country club. The thief, previously convicted of theft and battery, is serving 25 years to life.
Whether the three-strikes law has made California safer is debatable, but there is no doubt that it has contributed to the serious overcrowding of the state’s prisons, which with 80,000 inmates are now at 175 percent of capacity. This overcrowding led last month to another 5-4 Supreme Court decision, this one written by Justice Anthony Kennedy, himself a Californian. Kennedy’s graphic opinion cited an incident in which an inmate had been held “in a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic.” He called such practices “incompatible with human dignity” and said they were “cruel and unusual punishment” that is prohibited by the Constitution.
Kennedy’s passionate opinion, which if followed to the letter will require release of 33,000 prisoners over two years, presumably would meet the test of doing the right thing for the right reason. But it will also save money at a time when the state government is engaged in its perennial struggle to make ends meet. Whether it will also add to local jail and parole costs, as critics predict, will be determined by the way in which Democratic Gov. Jerry Brown and the Legislature decide to implement the high court’s decision.
Beyond California’s borders, the wave of sentencing reduction is growing stronger and has yet to crest. More than 20 states followed California’s lead in the 1990s, passing three-strikes and two-strikes measures that extended sentences to greater or lesser degree. Many of these states are now heading in the other direction, led by whichever party is in power. In Connecticut, for instance, one of the states that passed a three-strikes law in 1994, majority Democrats pushed through a bill over Republican opposition to reduce sentences for inmates who obtain a high school equivalency diploma while behind bars.
Legislatures have been able to take such actions with substantial public support because crime in the United States is plummeting for reasons that defy easy explanation. Robberies are supposed to rise during recessions; instead they fell by 9.5 percent from 2009 to 2010, according to the FBI’s Uniform Crime Report. Violent crimes also declined, most of all in the South, which has led the way in sentencing reduction.
The murder rate is particularly instructive. Experts consider it the most reliable statistic since homicides are usually reported, unlike some violent crimes, rape for instance, where reporting standards vary. The U.S. murder rate is now the lowest in nearly a half-century. In New York City last year there were 536 murders, shocking by the standards of many countries but almost reassuring in comparison to the 2,200 murders that occurred in the Big Apple in 1991. Across the country in Los Angeles, there were 297 murders, down from 1,100 murders two decades ago.
Social scientists who specialize in crime did not foresee this. The most eminent among them, Pepperdine University’s James Wilson, in 1995 forecast an unprecedented proliferation of killing and mugging that never occurred. Wilson’s own ideas of crime prevention, known by the short-hand phrase “broken windows,” may have helped undermine his prognostication. He believes that suppressing minor, visible crime such as graffiti and vandalism is a key to reducing major crime, and this theory has been put into practice by police forces across the nation.
But this alone could not account for the dramatic nature of the crime decrease and the experts now admit to being baffled. A recent and inconclusive article in The Economist gave seven possible explanations for the drop in crime rates, ranging from an improvement in police tactics to the speculative possibility that video games and the Internet had kept “people inside, and away from real crime and drugs.”
Whatever the reason, this welcome trend has enabled states to make an overdue examination of their sentencing policies. It is right that they do so because every dollar not spent on incarceration is a dollar that can be spent on education or other embattled priorities. As long as the crime rate continues to decline, it’s a safe bet that sentencing reform will continue.
— Summerland resident Lou Cannon is a longtime national political writer and acclaimed presidential biographer. His most recent book — co-authored with his son, Carl — is Reagan’s Disciple: George W. Bush’s Troubled Quest for a Presidential Legacy. Cannon also is an editorial adviser to State Net Capitol Journal, which published this column originally.