The fiscal crisis facing virtually all state governments has brought to the forefront of public debate the following question: When do longer prison sentences and harsher punishment become counter-productive? Has the clock finally run out after four decades during which politicians at all levels of government built their careers by being “tough on crime”? In the state of New York, both lawmakers and voters are reaping the fiscal and societal benefits of a lower incarceration rate, a lower crime rate and less money expended on corrections as a result of criminal justice reform measures. Only time will tell if this trend is embraced by other states and the federal Bureau of Prisons (BOP).

In the past, politicians seeking to build their constituencies hailed high rates of incarceration as the sole reason for falling crime rates. The states and federal government, with few financial constraints, quadrupled the incarceration rate in the United States since 1970. The U.S. was not alone in this trend, with Britain doubling its incarceration rate and Japan increasing its rate by half. The U.S., however, distinguished itself during this time period by ratcheting up punishments for low-level drug crimes so that now 10- to 15-year sentences for such offenses are not uncommon. Further, by exploiting sentencing “guidelines” that boost prison terms and by threatening multiple-count indictments, federal prosecutors can easily win guilty pleas that result in lengthy sentences for even non-violent crimes.

The state of New York, however, has started to turn its back on draconian criminal justice policies and has begun to reap the benefits from doing so. In an environment where many states have learned they do not have the funds to incarcerate all offenders for lengthy prison terms, the Empire State found a more cost-effective way to deal with crime. New York has set aside the mistaken presumption that drug-related activity is the most dangerous threat to modern society and deserving of its own “war.”

The U.S. government’s own statistics from 2007, the most recent year available, clearly refute that presumption. Of the 2.42 million deaths that year, more than 1.8 million were due to disease. Accidents killed another 123,706, including 43,945 motor vehicle fatalities. Drug overdoses and drug-related deaths trailed at 38,371 (not including alcohol-related deaths, which numbered 23,199), slightly more than the 34,598 suicides that year. What’s wrong with this picture? No one denies the tremendous societal cost of drug addiction and drug-related crime, but does it require its own “war,” which is more a war on citizens who use certain drugs than a war on drugs themselves? New York has decided that it does not.

Compare the situation in New York with that of Alabama, which still considers itself a “get-tough” state and is now paying the price. According to a report by Justice Strategies, a criminal justice research organization, Alabama prisons are “dangerously” overcrowded with a 13,403-bed system crammed with more than 26,000 prisoners. The state’s prison system is underfunded and Corrections Commissioner Richard Allen stated, “We have cut just about all we can cut.” The shortfall in financing for prison operations means there is little money left to fund alternative forms of punishment.

According to Justice Strategies, the problem arose from the toughness of Alabama’s drug laws. “Drug felony caseloads have been driven by drug possession rather than more serious drug offenses such as distribution, trafficking, or manufacturing of a controlled substance. Between October 2005 and September 1008, three in four Alabamians sentenced for a felony drug offense were convicted of simple possession of marijuana (13 percent) or other drugs (64 percent). Drug offenses represent the largest single category of prison admissions, responsible for 36 percent of prison admissions in fiscal year 2008.”

Alabama’s laws do not adequately distinguish between drugs for personal use and those for distribution. “[F]irst time possession of marijuana for personal use is a Class A misdemeanor ... subsequent conviction[s] [for possession are] considered possession in the first degree – a Class C felony punishable by up to 10 years in prison.... More people entered prison in fiscal year 2007 for first-degree marijuana possession (448) than for first-and second-degree assaults combined (368).”

Although crime rates have dropped in Alabama, mirroring a national trend, they have not dropped as much as in other states like New York, which have reformed their drug laws. In fact, Alabama has fallen behind the nation as a whole in terms of crime rates, indicating that tough sentencing laws are not the answer to curtailing crime, especially when weighed against their heavy societal costs.

Since 2000, New York’s violent crime rate has dropped 25 percent and its property crime rate has decreased 22 percent; specifically, murder is down 16 percent, robbery down 25 percent, burglary down 27 percent and auto theft down 49 percent. Alabama, in contrast, has suffered sharp increases in murder (up 20 percent), robbery (up 25 percent), burglary (up 8 percent) and auto theft (up 7 percent). The same FBI uniform crime reports show that violent crime for the nation as a whole has dropped 8 percent and property crime has decreased 10 percent, while the incarceration rate rose 3 percent.

What accounts for the wide disparity in the FBI’s statistics? Recent reviews of deterrence research, which examine the relationship between sentencing severity and crime deterrence, have found no evidence that harsher sentences result in lower crime rates. The studies also showed the limitations of “incapacitation,” when incarcerated people are prevented from committing crimes during the duration of their prison sentences.

Based upon crime rate statistics from New York and Alabama, there appears to be no direct relationship between incarceration rates and crime rates. It is highly probable, according to the book The Crime Drop in America, edited by Alfred Blumstein and Joel Wallman, that incarceration accounts for approximately 25 percent of the decline in violent crimes. Other factors, such as population demographics, drug abuse patterns, more police and different policing tactics, and employment levels have a greater influence on crime rates. One economist, Steven Levitt, in Freakonomics, theorized that legalized abortion led to a drop in crime because fewer unwanted babies grew up to be criminals. Sociologist John Conklin wrote in Why Crime Rates Fell that half of the decrease in crime rates could be attributed to increased incarceration.

“Increased sentencing in some communities has removed entire generations of young men” from their communities, noted San Francisco police chief George Gascón. “Has that been a factor in lowering crime? I think it probably has. I think it also probably has had a detrimental effect on those communities.”

“We now incarcerate four times as many people as we did 20 years ago,” stated John Roman, director of the District of Columbia Crime Policy Institute. “Just by sheer size you’ve removed a lot of potential offenders from the street. I don’t think that’s very popular in many circles but it’s very hard to argue with.”

Incapacitation through incarceration doesn’t completely explain the drop in crime rates, though, particularly since the vast majority of prisoners are eventually released, at the rate of over 680,000 a year from state and federal prisons. Thus, while incarceration may postpone crimes that would have been committed by offenders were they not in prison, it does not prevent future crimes – as evidenced by the nation’s high recidivism rate, which was estimated at 43.3 percent in an April 2011 report by The Pew Center on the States, based on data from 2004-2007.

New York has led the way in promoting drug treatment, reductions in sentencing and other reforms that have helped decrease both the state’s prison population and financial outlays for incarceration. New York has experienced a remarkable decline in its prison population over the past ten years. The U.S. Bureau of Justice Statistics reported that New York prisons held 72,899 prisoners in 1999 and 62,211 by June 2008. This reversed a trend of more prisoners and more prison construction that began in 1973 under Governor Nelson Rockefeller, who enacted the infamous Rockefeller drug laws. Those laws mandated minimum sentences for drug offenses, increased drug-related incarcerations from 470 in 1970 to 8,521 in 1999, and helped fuel a prison population increase from 12,144 in 1972 to the 72,899 figure in 1999.

In 2001, New York was already experiencing some of the financial difficulties that only recently have begun to catch up with the rest of the country. With falling tax revenues and increased expenditures for corrections and basic social services whipsawing the state budget, legislators struggled to cut prison spending and called for a halt to new prison construction. There were also non-fiscal reasons for the decline of the prison population. Studies showed that a public health approach to the problems of drug abuse and related criminal activity produced far better outcomes for public safety (and public coffers) than increased prison sentences.

A study by RAND Corporation concluded that money spent on treatment for people prosecuted on federal cocaine charges would reduce serious violent and property crimes about 15 times more effectively than incarceration.

A U.S. Department of Health and Human Services evaluation of clients in publicly-funded treatment programs found that drug use dropped by 41 percent in the year after treatment, and the proportion of clients selling drugs dropped 78 percent. The percentage of people arrested on any charge following treatment also dropped, by 64 percent.

The California Drug and Alcohol Treatment Assessment (CALDATA) study found that for every tax dollar invested in substance abuse treatment, taxpayers saved seven dollars in future crime and health-related costs. A Washington State Institute for Public Policy cost/benefit report indicated that for those convicted of drug offenses, a dollar invested in imprisonment produced just $.37 in crime reduction benefits while the state’s drug courts produced $1.74 in benefits for each dollar spent.

Closer to home for New Yorkers, the Brooklyn District Attorney’s Drug Treatment Alternative to Prison (DTAP) program found that even individuals with serious criminal histories benefited from the program. Those in the DTAP program were 26 percent less likely to be arrested and 67 percent less likely to return to prison than offenders in a matched comparison group.

Like many other prison reform efforts, the changes in New York started quietly. Former Governor George Pataki, an otherwise conservative bastion of Republican politics, inserted two drug reform provisions in the state’s 634-page budget bill in 2003, ostensibly as a budget-cutting move. One measure provided that prisoners serving a mandatory sentence under the Rockefeller drug laws could receive a “merit time” reduction of one-third of their minimum prison term for good behavior and participation in work or treatment programs. A second measure expanded the DOC’s “earned eligibility” program under which certain prisoners who completed work and/or treatment program assignments could earn a certificate that made release on parole presumptive at their first hearing unless the parole board decided otherwise. Non-violent prisoners with a clean prison record and no prior violent felony record could apply to the DOC commissioner for a “presumptive release” after serving five-sixths of their minimum term, with no need to go before the parole board.

In 2004, the New York legislature doubled the drug amounts that triggered mandatory minimum prison sentences, which granted hundreds of prisoners the right to petition for early release under the new sentencing provisions. In 2005 the Rockefeller drug laws were again changed, providing for a “merit time” allowance for prisoners to petition for resentencing for certain offenses. Judges were given more latitude to determine sentences and increased discretion in handling resentencing decisions. Finally, in 2009, as a result of efforts by a statewide coalition of service providers, policy and prisoners’ rights advocates, and treatment and medical professionals, the Rockefeller drug laws were again modified to remove mandatory minimum sentences, resulting in estimated savings of $250 million annually.

“I can’t think of a criminal justice strategy that has been more unsuccessful than the Rockefeller drug laws,” New York Governor David A. Paterson said in his State of the State address in January 2009. Paterson had been arrested in 2002 when he was Senate Minority Leader for protesting the Rockefeller drug laws in an act of civil disobedience.

Under new state laws, prisoners suffering from a serious and permanent medical disability who do not pose a threat to public safety will be eligible for medical parole after serving half of their sentence. Prisoners who take college courses, enroll in state-approved apprenticeships or work as a prison hospice aide can qualify for increased “merit time” credits. More defendants convicted of non-violent crimes are being recommended for short-term “shock prison camp” instead of receiving lengthy prison sentences. Efforts are underway to transfer some of the savings into work release and increased training programs for prisoners.

These money-saving reforms are now running into opposition, not from people who challenge the efficacy of the programs but from those who risk losing the economic benefits that their communities gained from the state’s prison-building boom – mainly in the form of prison jobs. Newly-elected Governor Andrew M. Cuomo, in his first annual address to the legislature, vowed that underused prisons would no longer serve as “an employment program” for upstate New York. “If people need jobs, let’s get people jobs. Don’t put other people in prison to give some people jobs. Don’t put other people in juvenile justice facilities to give some people jobs. That’s not what this state is about,” he said.

The exact reasons for declining crime rates in New York and nationally are unknown, particularly in light of the economic downturn, which was expected to lead to an increase in crime. “As the economy started shedding jobs in 2008,” stated Heather Mac Donald, with the Manhattan Institute, “criminologists and pundits predicted that crime would shoot up, since poverty, as the ‘root causes’ theory holds, begets criminals. Instead, the opposite happened. Over 7 million lost jobs later, crime has plummeted to its lowest level since the early 1960s.” It is safe to say, though, that focusing on drug treatment, reentry and recidivism reduction rather than harsher prison sentences is a contributing factor to lower crime rates.

New York is not alone in enacting criminal justice policy reforms. Since 2000, state legislators in more than half the states have taken steps to modify or repeal mandatory sentencing laws, to shorten prison sentences, to increase the rate at which low-risk prisoners are released from confinement, and to reduce the number of parolees returned to prison for committing “technical” violations. In 2008, 26 states decreased their prison populations, which resulted in the first drop in the overall state prison population in almost 40 years and spurred a number of prison closures. [See: PLN, April 2009, p.1].
This decreasing reliance on incarceration has coincided with declining crime rates. According to FBI statistics, the number of violent crimes in the U.S has continued to drop, including murder, aggravated assault, forcible rape and robbery. In 2009, New York City had the lowest number of murders since the FBI started keeping detailed records in 1963.

Now, for the first time in recent memory, the federal government is experiencing the same fiscal pressures that the states, nominally required to balance their budgets, have faced. Will budget cuts and pressure from the declining economy accomplish what a chorus of policy experts and studies have been unable to convince the Justice Department and BOP to do, given that the federal prison population has continued to increase apace? Certainly, it would not be hard to implement or expand criminal justice reform measures on the federal level, and the BOP’s drug treatment programs, including RDAP, which provides reduced sentences for completion of a residential drug treatment program, is an apparent success.

Has the time finally arrived when the federal government and the rest of the states will recognize that primary reliance on incarceration as crime reduction strategy and drug control policy is neither effective nor economical, as compared to the sentencing and correctional reforms that New York has embraced?

We can only hope to answer that question in the affirmative. As stated by John Roman, director of the District of Columbia Crime Policy Institute, “You can make the case that mass incarceration hastened the end of the crime wave. You would have a much more difficult time making the case that a continuation of that mass incarceration is necessary. The benefit from preventing crime, since crime rates are so much lower, is a lot smaller than it used to be and the costs continue to go up. We’re investing more and more in prison and getting a smaller and smaller return.”

Sources: “Children on the Outside: Voicing the Pain and Human Costs of Parental Incarceration,” Justice Strategies (Jan. 2011); New York Times; The Economist; www.cdc.gov; Time Magazine; www.pewcenteronthestates.org; www.guardian.co.uk; www.timesunion.com

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