Downscaling Prisons
Lessons from Four States
Judith Greene
Justice Strategies
Marc Mauer
The Sentencing Project

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DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

A

s states around the nation grapple with the effects of the fiscal crisis a major
area of attention has been the cost of corrections. Over the past 25 years the
four-fold rise in the prison population has caused corrections expenditures to

escalate dramatically. These increased costs now compete directly with higher
education and other vital services within a climate of declining state revenues.
Even prior to the onset of the latest fiscal crisis, though, legislators in many states had
become increasingly interested in adopting evidence-based policies directed at
producing more effective public safety outcomes. In contrast to the “get tough”
climate that had dominated criminal justice policy development for many years, this
new political environment has focused on issues such as diversion of people charged
with lower-level drug offenses, developing graduated sanctions for people on
probation and parole who break the rules, and enhancing reentry strategies.
Despite these developments, prison populations have continued to rise in the past
decade, albeit not as dramatically as in the preceding decades. From 2000-2008 the
number of people incarcerated in state prisons rose by 12 percent from 1,176,269 to
1,320,145, although with a broad variation around the nation. At the high end, six
states expanded their prison populations by more than 40 percent – West Virginia
(57 percent), Minnesota (51 percent), Arizona (49 percent), Kentucky (45 percent),
Florida (44 percent), and Indiana (41 percent).
By the end of this period, growth in state prisons appeared to have largely stabilized.
In 2008, the national total remained steady, and 20 states experienced a modest
reduction in their populations that year.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

2

While a growing trend towards stability may be emerging, this development needs to
be assessed in context. Even if there should be a leveling of population growth, that
would still leave prison populations at historic highs that are unprecedented in
American history or that of any other democratic nation. The consequences of such
a situation for fiscal spending, public safety prospects, and impact on communities is
very troubling.
In this regard it is particularly instructive to examine the four states that are the focus
of this report – Kansas, Michigan, New Jersey, and New York. In contrast to the
12% growth in state prison populations since 2000, these states have actually
achieved significant declines in their prison populations in recent years, and therefore
offer lessons to policymakers in other states about how this can be accomplished.
These declines have spanned the following periods:
•

New York: A 20% reduction from 72,899 to 58,456 from 1999 to 2009

•

Michigan: A 12% reduction from 51,577 to 45,478, from 2006 to 2009

•

New Jersey: A 19% reduction from 31,493 to 25,436, from 1999 to 2009

•

Kansas: A 5% reduction from 9,132 to 8,644, from 2003 to 2009

This report contains a description of the many pragmatic reforms and policies that
have helped to produce these prison population reductions. What is clear in each of
these cases is that the reductions only came about through conscious efforts to
change policies and practices, that these states relied on many different types of
reform initiatives to improve their criminal justice systems, and that these initiatives
had the twin goals of reducing the prison population and promoting cost-effective
approaches to public safety.
The initiatives described in this report cover a range of policy changes that should
provide a framework for policy advocacy in other states as well. They include the
following:

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

3

Sentencing Reforms
•

New York: Scaled back the Rockefeller Drug Laws substantially to reduce the
scope of mandatory sentences.

•

Michigan: Reformed the “650 Lifer Law” that had previously imposed life
sentences for 650 gram drug offenses, even for first-time offenders.
Eliminated most mandatory minimum sentences for drug offenses and
incorporated sentencing provisions into the guidelines system, with enhanced
judicial discretion. Restructured community corrections planning
expectations to create incentives to target “straddle-cell” cases in sentencing
guidelines for intermediate sanctions.

•

Kansas: Amended state sentencing guidelines to divert people convicted of
drug possession to mandatory treatment rather than prison, and eliminated
sentencing enhancements for persons with prior convictions for drug
possession.

Alternatives for “Prison Bound” People
•

New York: Drug Treatment Alternative to Prison program established by
the Brooklyn District Attorney’s Office to divert prison-bound defendants
into treatment programs helped to reduce use of incarceration, and was
expanded to other prosecutor’s offices statewide. Statewide network of
Alternatives to Incarceration programs utilized data to target prison-bound
offenders for sentencing alternatives.

•

New Jersey: Attorney General revised plea negotiation guidelines to permit
“open pleas” in lower-level drug-free zone cases, giving judges discretion at
sentencing. Expanded drug court model statewide, and encouraged judges to
consider “open plea” cases for treatment.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

4

Reducing Time Served In Prison
•

New York: Implemented “merit time” credits and other incentives for
participation in education and vocational training, treatment and other
services to speed parole consideration.

Parole Release Rates
•

New Jersey: Adopted risk assessment instruments to aid parole board in
considering release issues, along with day reporting and electronic monitoring
in community, resulting in increased rate of granting parole.

•

Michigan: Use of data-driven policies to identify lower-risk cases for release,
establishment of greater range of intermediate sanctions for rule violators,
and designation of two “reentry prisons” to assist in planning for release.

Reducing Revocations
•

New Jersey: Established Regional Assessment Centers to provide input to
parole board in determining if parole violators should be allowed to continue
on parole supervision.

•

Michigan: Established the Michigan Prisoner Reentry Initiative to develop
locally-based planning focusing on services in housing, employment,
substance abuse, and other areas designed to increase prospects for successful
reentry.

•

Kansas: Justice Reinvestment strategy to provide services under community
supervision to reduce revocations for rule violations. Risk Reduction
Initiative provides funding to county-operated programs that emphasize
neighborhood revitalization, substance abuse and mental health treatment,
and housing services.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

5

NEW YORK
PRISON POPULATION REDUCTION: 20% DECLINE FROM 72,899 IN 1999 TO
58,456 IN 2009

Strategic Initiatives:
•

Refocusing police enforcement priorities

•

Diversion of “prison bound” cases to treatment and other alternatives to
incarceration

•
•

Scaling back drug sentencing laws
Increased use of release programs and incentives to shorten time served in prison
for people convicted of drug violations and other non-violent crimes

ANNUAL PRISON POPULATION CHANGE IN NEW YORK
1,000
572
500

0
2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

-500
-468
-692
-1,000
-1,008
-1,500

-1,447

-2,000
-1,867

-1,891

-2,500
-2,276
-2,700

-2,666

-3,000

One of the nation’s most closely watched experiences with prison system
“downsizing” has taken place in New York, where the number of people in state

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

6

prison has decreased by 20 percent over the past decade. New York’s prison system
held 58,456 prisoners at the end of 2009, down from 72,899 in 1999. Between 1999
and 2008, the state’s incarceration rate fell by 23 percent, from 400 per 100,000
residents to 307. This decline followed decades of prison population growth and
prison construction, substantially driven by two sentencing laws that launched the
U.S. war on drugs.
In 1973, Gov. Nelson Rockefeller pushed a harsh program of mandatory minimum
drug laws through the New York State Legislature. Under the Rockefeller Drug
Laws, sale of just two ounces, or possession of just four ounces, of a narcotic drug
was made a Class A felony, carrying a minimum sentence of 15 years and a
maximum of life in prison.
While most people convicted of drug crimes are sentenced to lesser prison terms after
conviction for Class B, C or D sales or possession offenses, the Second Felony
Offender Law, enacted in tandem with the Rockefeller Drug Laws, mandated a
prison sentence for a person convicted of any two felonies within 10 years, regardless
of the circumstances or the nature of the offenses. Together, these harsh sentencing
laws flooded New York's prisons with people convicted of lower-level drug offenses.
Street drug enforcement was intensified from the mid-1980s through the 1990s, and
annual drug commitments to prison, which had totaled 470 in 1970, rose to 8,521
in 1999.1
New York’s crack-down on drug crime proved to be extremely expensive, driving the
proportion of people in state prison for drug offenses up from just 11 percent when
the Rockefeller Drug Laws were enacted, to a high of 34 percent. And the impact on
communities of color was stark: African Americans and Latinos constitute 90
percent of all people incarcerated for a drug offense.2

1

New York State Department of Criminal Justice Services. “1999 Crime and Justice Annual Report.”

2

Correctional Association of New York. “Drop the Rock” fact sheet, online at

http://www.correctionalassociation.org/publications/download/ppp/factsheets/DTR_Fact_Sheet_2009.pdf

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

7

Other “get-tough” measures also contributed to an overcrowding crisis in the state
prison system over the next two decades. In 1978 the legislature enacted tough new
laws that lengthened sentences for “violent felony offenders” and “persistent violent
felony offenders,” along with a new “juvenile offender law” that increased the
likelihood that young people convicted of violent crimes would end up in prison.
In 1994, George Pataki sparked his gubernatorial campaign against Mario Cuomo
with a pledge to reinstate the death penalty, and a call for “truth in sentencing.”
After taking office Pataki convinced legislators to approve fixed “determinate”
sentences with no possibility of parole for two-time (“persistent”) violent offenders.
Then, in 1998 Gov. Pataki signed “Jenna’s Law,” a bill that abolished parole for all
prisoners convicted of violent offenses, and he pressed his parole board to be more
restrictive in making parole decisions for people who remained subject to parole
release who had criminal records that included any history of violent crime. Between
fiscal years 1994 and 1999, the parole grant rate at first hearings dropped from 60 to
40 percent. By 2000 only one in five people convicted of a violent crime was being
released at their first parole hearing.3
To keep up with the effects of these “get tough” measures, New York officials –
Cuomo and Pataki alike – made huge investments in prison expansion. Between
1988 and 1999 the Department of Correctional Services (DOCS) added two
maximum security prisons, 14 medium security prisons, and four minimum security
prisons, increasing overall system capacity from 41,242 to 72,951. Crime rates
began to decline in 1991, however, and within a decade residents of New York City
were celebrating a 64 percent drop in reported violent crimes.4 Yet by 1999, New
3

Pfeiffer, Mary Beth. “Parole denials negate crime drop.” Poughkeepsie Journal, November 16, 2000

4

The actual causes of the “New York Miracle” have been hotly debated since ex-Mayor Rudy Giuliani and ex-Police

Commissioner William Bratton first laid claim by asserting that the decrease in crime was entirely explained by
introduction of COMPSTAT and related police reforms. For a detailed critique of their claims, see “Zero Tolerance: A
Case Study of Police Policies and Practices in New York City,” by Judith Greene, in Crime and Delinquency, Vol. 45
No. 2, April 1999.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

8

York taxpayers were spending $100 million more on prisons than on the state college
system.
As violent crime rates fell in New York, felony arrests for violent crime fell
accordingly. In 1994 there were 70,880 arrests for violent felonies in New York
State (52,815 in New York City). By 2008 that figure had fallen to 45,491 (28,296
in the City). In 1999, NYPD enforcement priorities shifted, and felony drug arrests
also began a sharp decline, hitting bottom at 34,394 in 2003 (23,711 in the City),
though they climbed back up to 40,123 in 2008 (28,765 in the City).5

F ELONY A R R ESTS I N NEW Y OR K STATE 1994 - 2008
75,000
70,000
65,000
60,000
55,000
50,000

VIOLENT
DRUG

45,000
40,000
35,000

19
94
19
95
19
96
19
97
19
98
19
99
20
00
20
01
20
02
20
03
20
04
20
05
20
06
20
07
20
08

30,000

Source: New York Division of Criminal Justice Services

5

New York State arrest patterns, as well as conviction and sentencing patterns, are largely driven by operation of the

criminal justice system in the City. “Non-New York City” violent felony arrests also fell – but far less dramatically –
between 1994 and 2008 (from 18,030 to 17,161). Felony drug arrests outside of the City fell from 11,437 in 1994 to a
low of 9,965 in 2001, and rose again to 11,353 in 2008.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

9

The drop-off in felony drug arrests was associated with an increase in misdemeanor
drug arrests. The shift came on the heels of evidence that public support for the drug
war was waning. In 1999 a widely-publicized poll of New York State voters
conducted by Zogby International revealed that twice as many said they would be
more inclined to vote for state legislators who would reduce sentences and give judges
greater discretion in drug cases than the number who said they’d be less inclined.6
That same year the number of drug arrests in New York City fell by almost 6,000. It
seems only logical to assume that increasing public dissatisfaction with the drug war
contributed to the shift of NYPD resources reflected in felony drug arrest trends.
Even before drug enforcement patterns began to shift in New York City, statewide
sentencing trends in drug cases were showing a marked decline in prison sentencing
patterns. The proportion of people sentenced statewide to prison for felony drug
crimes fell from 21 percent in 1997 to just 11 percent in 2008:

PROPORTION OF DRUG CASES SENTENCED TO PRISON
25%
21.2%
20%

19.3%
17.4%

15%

13.8% 14.4% 14.3% 14.2%
12.8% 12.7% 12.6%
11.4%

10.5%

10%

5%

0%
1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

Source: Division of Criminal Justice Services

6

Zogby International. April 28, 1999. Online at http://www.drugpolicy.org/library/publicopinio/zogby.cfm

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

10

The first significant path around sentencing roadblocks contained in the Rockefeller
Drug Laws had been blazed back in 1990 by Kings County (Brooklyn) District
Attorney Charles J. Hynes. Hynes created the Drug Treatment Alternative-to-Prison
Program (DTAP) on the premise that many people facing a mandatory prison term
as repeat felony offenders might benefit from diversion to treatment instead of
imprisonment, improving their chances of rehabilitation at far less cost to taxpayers.
Gabriel Sayegh, Director of the State Organizing and Policy Project at the Drug
Policy Alliance, says that DTAP represented an important early signpost on the way
to reform of the Rockefeller laws:
Hynes is a veteran prosecutor and a savvy politician. He understood that
damage was being done to families and communities in Brooklyn by mass
incarceration policies and strict adherence to the Rockefeller Drug Laws.
He listened and responded to consistent, vocal pressure from his
constituents, who were demanding that alternatives be provided for their
children, neighbors and friends.
A study of the Brooklyn DTAP program, sponsored by the National Institute on
Drug Abuse, and conducted by researchers at Columbia University’s Center on
Addiction and Substance Abuse (CASA), found that diversion to treatment was
effective, even for people with serious drug problems and very significant criminal
histories.7 The program was diverting repeat felony offenders addicted to heroin,
crack and powder cocaine who had already spent an average four years behind bars.
Despite their prior history, more than half successfully graduated from the program.
CASA researchers found that DTAP participants remained in treatment six times
longer than those in a national study of long-term residential treatment. DTAP
participants who received 15 to 24 months of residential drug treatment were far less
likely to be re-arrested or re-incarcerated than members of a matched comparison
7

Belenko, Stephen. “Crossing the Bridge: An Evaluation of the Drug Treatment Alternative-to-Prison (DTAP)

Program” (March 2003) Online at http://www.casacolumbia.org/download.aspx?path=/UploadedFiles/sy3s3hdz.pdf

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

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group who were sentenced to prison. After two years, those placed in DTAP were 26
percent less likely to be arrested, 36 percent less likely to be reconvicted and 67
percent less likely to return to prison than a matched comparison group. Sayegh says
the CASA research report helped advocates to build a stronger case for fundamental
drug policy reform in New York:
The importance of Hynes’ DTAP program was amplified and
underscored by the evaluation findings. For the first time, we had
evidence that diversion was not only possible, we had proof that it
worked. In the political climate back then, the people that the Brooklyn
DA was willing to approve for a treatment alternative to prison were seen
as the worst candidates for diversion. They had been arrested and
convicted at least once before, many had even gone to prison before, and
they had gone back to the streets and were selling drugs again. Yet given
an opportunity through DTAP, most were succeeding and turning their
lives around.
The success of the DTAP program with people who would otherwise have served a
mandatory prison term helped to increase availability of treatment for thousands of
other people who were prison bound under the Rockefeller Drug Laws. Other
prosecutors across the state secured funding to establish their own DTAP programs.
New York’s well-established network of “Alternative to Incarceration” (ATI)
programs was expanded with a specific mandate from state and city officials to
further widen the route to diversion of prison-bound people through sentencing
advocacy in the court system.
The vital network of community-based ATI programs emerged from early efforts in
New York City, going as far back as the 1960s, to provide judges and prosecutors
with community-based (as opposed to court- or probation-based) interventions for
diversion of people from jail and prison. Pretrial release and diversion programs
developed at the Vera Institute of Justice served as national models for alternatives to
incarceration for young people who – if successful in completing treatment,
educational, or vocational programs – might avoid a criminal conviction altogether.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

12

By the 1980s, a number of program initiatives were providing “defender-based
advocacy” services in the New York courts, helping defense attorneys convince judges
to divert defendants to community-based rehabilitation programs, or to noncustodial penalties such as community service and restitution.
The 1980s and 90s saw a proliferation across the US of court- and corrections-based
non-custodial sentencing alternatives, then termed as “intermediate sanctions,” to fill
an apparent “gap” between traditional probation and prison. Program models such
as intensive probation supervision and “boot camps” were soon replicated in many
jurisdictions, despite the fact that research on their effectiveness was less than
encouraging.8
Critics of the “alternatives” movement argued that these program options were
largely being misused by the courts to “widen the net” of criminal justice control.
People who ended up getting an “alternative” sentence would probably not have
been sent to jail or prison in the first place. But experience with sentencing and
correctional alternatives in New York was informed by the work of program
planners, managers and researchers at the Vera Institute of Justice, who helped to
foster more successful models for ATI programs operated by independent non-profit
organizations. A variety of non-profit organizations began operating programs
designed as alternatives to jail and prison, patching together funding from a variety of
foundations and government sources.9
New York’s “Classification/Alternatives to Incarceration Act” was established in 1984
– in the midst of a huge expansion of jail and prison capacity – to provide state
funding for an array of fledgling ATI programs. State corrections officials
responsible for management of the initiative prodded local program administrators to

8

Petersilia, Joan R. and Susan Turner. “Intensive probation and parole.” Crime and Justice, vol. 17, 1993; Parent, Dale

G. Correctional Boot Camps: Lessons from a Decade of Research. Washington, DC: National Institute of Justice. 2003.
9

These included programs developed at Vera and its “spin-off” agency, the Court Employment Project (the agency now

known as CASES), as well as at the Osborne Association and the Fortune Society.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

13

focus these resources on people who faced a real likelihood of being sentenced to jail
or prison. The hallmark of Vera’s work during this period was development of
objective statistical tools, drawn from research on sentencing patterns, for identifying
“jail- and prison-bound” defendants so that program advocacy and interventions
could actually help to reduce reliance on incarceration.

“Smart” Reforms Gain Ground over Get-Tough Policies
New York’s prison population peaked in 1999, and after the tragic events of
September 11, 2001, legislators struggled to trim spending in the face of projected
sharp budget shortfalls. Calls for repeal of the Rockefeller Drug Laws went unheeded
at the state capitol, but a number of more modest reforms were nonetheless won in
both sentencing and correctional policy over the next few years.
With a well-established array of credible, well-targeted alternative programs working
to reduce reliance on incarceration and the DTAP model demonstrating remarkable
success, many New York prosecutors were increasingly willing to send people facing
serious drug charges to a treatment alternative. The volume of admissions to prison
of people convicted of drug crimes fell steadily though the first decade of the new
century.
Admission of people sentenced to prison for drug violations by the courts fell from
8,227 in 2000 to 5,190 in 2008.10 In 2000, more than 22,000 prison beds were
occupied by people convicted of drug violations, comprising 31 percent of the
population behind bars. By 2008, with some 8,800 fewer drug prisoners, that
proportion had dropped to just 21 percent.11 New court commitments to prison fell
by 15 percent overall during the period, but commitments for drug sales convictions

10

New York State Department of Correctional Services. (2000 – 2008 annual reports) “Statistical Overview of Court

Commitments.”
11

New York State Department of Correctional Services. (2000 – 2008 annual reports) “HUB System: Profile of Inmate

Population Under Custody on January 1.”  

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

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led the trend by far, declining by 54 percent, compared to just four percent for
violent convictions.
From the beginning of 2000 to the beginning of 2008, the number of people in
prison fell by more than 8,800. While the number of people rose in some crime
categories and fell in others, the decline in people convicted of drug violations can be
said to explain the entire decline.
While Gov. Pataki maintained his tough stance on people convicted of violent
crimes, his managers at DOCS sought a “right-sizing” approach to population
management. They used a number of tools to help them gain more control of prison
population levels, that also provided motivational incentives for people in DOCS
custody to maintain good behavior and engage in constructive activities. These
measures served to shorten sentences for people convicted of less serious crimes while
preparing them for release. Operating as a correctional mitigation of the harsh
Rockefeller laws, they have contributed to the “downsizing” trend.
In October 2000, Glen Goord – then serving as Pataki’s DOCS commissioner –
announced that 14 prisons were being targeted for “bed-take-downs.” This would
entail both removal of “squeeze beds” from units that had been double-celled during
the overcrowding crisis, and “take-downs” to reduce staffing by attrition. Goord
projected a $20 million savings due to attrition of 614 staff positions.12

The DOCS Toolkit for Prison Population Control
The oldest of the state’s prison population-control programs is the Shock
Incarceration Program (Shock). Predating the Pataki administration, Shock was
established in 1987, during the Cuomo administration, to allow younger prisoners

12

DOCS Press release. “Governor's prison policies succeeding in "right sizing" the system

Focus on locking up violent felons is reducing the need for beds for nonviolent felons,” October 20, 2000.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

15

“in need of substance abuse treatment and rehabilitation” to enter a structured sixmonth program. Successful completion usually results in parole release.
Unlike the “boot camp” programs in many states that allow judges to sentence
people as an alternative to prison, New York’s Shock program was designed to avoid
“widening the net” (subjecting people to a short period of confinement who would
have probably been sentenced to probation if the program did not exist). Selection
of candidates for Shock was made by correctional officials from those already
confined in prison.
An evaluation of Shock conducted by DOCS research staff determined that Shock
graduates earn a GED at a rate of 80 percent, much higher than the 41 percent rate
for people incarcerated in minimum security prisons. As originally enacted, Shock
was restricted to people aged 23 and younger. Those charged with the most serious
violent crimes were excluded, as were people who had previously served time in
prison. By 1989 the age limit had been raised to 34, and in 1999 the age was raised
to 39.
A second tool that has shortened sentences for many people in DOCS custody is the
“Earned Eligibility Program.” People serving indeterminate sentences with a
minimum term of six years or less can apply for a certificate that enhances their
chances of release at their first parole hearing. Candidates are evaluated by DOCS
staff, who consider such factors as disciplinary record, participation in treatment
programs and completion of work assignments. Issuance of an earned eligibility
certificate makes parole release presumptive, unless the parole board finds a reason to
decide otherwise.
Most people who can be considered for a certificate by DOCS staff receive one.
Since 1999 the denial rate has fluctuated between 13 and 29 percent. The rate at
which the parole board grants release to those who receive a certificate has also
fluctuated during the period, from roughly half to two-thirds during the period. But

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

16

less than a quarter of those denied a certificate have won release from the parole
board, and the proportion has fallen over time, with less than 10 percent of those
who were denied a certificate between October 2008 and March 2009 winning
release by the parole board.
A third measure that has helped to reduce the prison population is the “Merit Time
Program.” Signed into law by Gov. Pataki in August 1997, “Merit Time” allows
people serving prison sentences for a nonviolent, non-sex crime to earn a one-sixth
reduction off their minimum term, qualifying them for parole consideration sooner,
through achievement of a “milestone” goal. People can qualify by obtaining a GED
or a vocational training certificate, completing an alcohol or drug abuse program, or
performing 400 hours of service on a community work crew.
Between October 1997 and December 2006, 37,914 people had earned a “merit”
hearing at the parole board. Sixty-three percent were released.13 The great majority
(78 percent) of them were serving time for a drug violation. Research on return-toprison rates for those earning merit release indicates a lower rate of recidivism, 31
percent after three years, compared to the 39 percent rate of return for other people
after release from prison.14

The Rockefeller Drug Laws Begin to Crumble
Amid intense pressure from reform advocates, a partial revision of the harsh 1973
drug laws was won in 2003. Facing a budget deficit, Gov. Pataki inserted a number
of modest provisions in the state’s 634-page budget bill that reduced prison
sentences. People serving a class A1 mandatory sentence under the Rockefeller Drug
Laws became eligible to receive a “merit time” reduction of their minimum sentence,
provided that they complied with the requirement of good behavior, and participated
13

The parole board approved merit release for 69 percent who had earned a merit hearing, but because the hearing

usually precedes the actual release, not all are released before their normal parole eligibility date.
14

New York State Department of Correctional Services. (2007) “Merit Time Program Summary: October 1997 –

December 2006.” Online at http://www.docs.state.ny.us/Research/annotate.asp#merit

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

17

in work or treatment programs.15 The reform also moved up parole eligibility for
some 75 people who were serving a 15-to-life sentence for an “A1” Rockefeller Drug
Law conviction, and who had already served 10 years behind bars. Between
September 2003 and October 2006, 98 people gained release from prison through
the merit time provisions. On average, they left DOCS custody 42 months before
their parole eligibility date.
A second measure enacted in the 2003 budget bill expanded the DOCS “earned
eligibility” program. Prior to 2003, eligibility to earn a parole presumption had been
restricted to people serving a minimum sentence of six years or less. Eligibility was
expanded in 2003 to include those serving terms of up to eight years.
The 2003 budget bill also included a measure that allows eligible people who have no
prior violent felony record, and who are serving time for conviction of a nonviolent
crime, to apply for “presumptive release” after serving five-sixths of their minimum
term. The DOCS Commissioner was given power to grant their release to parole
supervision, provided that they have maintained a clean disciplinary record, without
having to go before the parole board.
At the end of the 2004 legislative session, after prolonged wrangling between the
Governor and legislators, they came to agreement on more substantial changes to the
Rockefeller Drug Laws that provided significant relief from some of the harshest
features. That year’s reform bill ended indeterminate sentences for drug crimes, and
doubled the drug amount thresholds that trigger the harshest mandatory prison
sentences.

15

Between 2003 and 2005, eligibility for “merit time” grants was extended and/or enhanced in a variety of ways. In

2003, people convicted of class A1 drug crimes became eligible to earn a “normal merit time” grant off their minimum
sentence. In 2004, the conversion of drug sentences from indeterminate to determinate included provision of oneseventh “good time,” and those normally eligible for “merit time” could earn another one-seventh off in addition to
“good time.” And those still serving an indeterminate sentence were allowed additional “supplemental merit time” of
one-sixth off their minimum sentence. Finally, in 2005, those convicted of an A2 drug crime began eligible for “normal
merit time.”

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

18

For class “A1” drug crimes, the weight threshold was raised from four to eight
ounces, and from two to four ounces for class “A2.” The harsh “A1” indeterminate
sentence of 15-to-life was replaced by a determinate sentence to be imposed by the
judge within a range of eight to 20 years. More than 400 people then serving 15-tolife were granted the right to petition their judge for resentencing under the terms of
the new law. Within two years a total of nearly 200 people were resentenced and
released under this provision. On average, they were released from prison 47 months
before their earliest possible release date under the old law.
Legislators also shortened prison terms for drug offenders, who now serve
determinate sentences and are granted one-seventh “good time” off their term.
Those eligible for “merit time” can get another one-seventh reduction on top of their
“good time.” For those still serving an indeterminate drug sentence, legislators
created “supplemental merit time,” allowing them to get a one-sixth reduction in
their minimum term by completing two of five “milestones” (the four specified for
regular merit time plus a fifth: completing three months of work release). By 2006
1,847 people had been released through “supplemental” merit time.
In 2005, legislators modified the Rockefeller Drug Laws again, adding another
“merit time” allowance for people convicted under class “A2,” and granted them the
right to petition judges for resentencing. They also increased judges’ discretion in
handling resentencing by broadening the range for determinate sentences.

DOCS Estimates of Cost Savings
According to DOCS researchers, Shock produces substantial savings in correctional
costs. The 35,102 people who had completed the program between 1987 and 2006
shaved an average of 11.3 months off the minimum prison sentence set by the court.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

19

The cumulative total savings (including cost-avoidance by averting prison
construction) was estimated to be $1.18 billion.16
DOCS researchers estimate that on average those released through “merit time” earn
more than six months off their minimum sentence, saving an average of $15,464
each, for a total savings between 1997 and 2006 of $372 million:17
Type of Merit Time

Number

Time Saved

Per Person

Total Saved

22,108

5.6 months

$13,533

$299 million

98

41.5 months

$100,292

$10 million

Supplemental Merit

1,847

14.1 months

$34,075

$63 million

Total

24,053

6.4 months

$15,464

$372 million

Normal Merit Time
Class A-1 Drugs

While a good deal of “right-sizing” was undertaken by the Pataki administration to
decrease prison system capacity and control correctional costs, the cost savings
estimated by DOCS do not translate directly into reduced expenditures on the
prison system overall. The cost reduction initiative announced by Commissioner
Goord in 2000 did bear fruit, with an expenditure reduction of $279 million in
2001, followed by a $55 million reduction in 2002. But in 2003 DOCS spending
started to climb again, soaring from nearly $2.7 billion that year, to $3.4 billion in
2008.18 The prison population fell steadily, and the executive branch proposed
closure of a few entire prisons, but the politics of prison closure proved thorny, and
other elements of the prison budget swamped the cost savings achieved though
DOCS population control measures.

16

New York State Department of Correctional Services. (2007) “The Nineteenth Annual Shock Legislative Report.”

Online at http://www.docs.state.ny.us/Research/annotate.asp#shock
17

DOCS. “Merit Time Program Summary”

18

National Association of State Budget Officers. “State Expenditure Reports” for fiscal years 2001 through 2008,

online at http://www.nasbo.org/Publications/StateExpenditureReport/tabid/79/Default.aspx

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

20

The parole reforms that have shown such good results in Kansas, Michigan and New
Jersey have not been pursued with success in New York. Many people (both those
serving time for violent crimes, as well as for drug violations) lost parole eligibility
over the decade due to the sentencing law shifts from indeterminate to determinate
sentencing. The number of people considered for parole fell by 29 percent between
1999 and 2008, but approval rates for those who were considered also decreased
through the period:

PAROLE APPROVAL RATES 1999 - 2008
60%
55.4%
52.4%
50%

52.6%

52.8%

51.3%

51.5%

48.0%

51.2%
47.8%

41.6%
40%

30%

20%

10%

0%
1999

2000

Source: New York DOCS

2001

2002

2003

2004

2005

2006

2007

2008

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

21

The share of prison admissions for people returned to prison for revocation of parole
increased during the same period, from 31 percent of all admissions in 1999, to 36
percent in 2008.19

The Impact of the Reform Decade
The partial reforms won during the 2003-2005 period remain important milestones,
however, as they brought a measure of welcome relief to people confined for drug
crimes, and to their families, and they contributed significantly to the overall prison
population reduction. The following charts illustrate their impact, in terms of time
served behind bars for those sent to prison with convictions for both drug sales and
possession:

AVERAGE TIME SERVED BY PEOPLE WITH A DRUG SALES CONVICTION
2000-2008 (IN MONTHS)
40
35

32.6

34.9

34.7

36.9

37.4

37.1
32.4
31.2

29.8

30
25
20
15
10
5
0
2000

2001

2002

2003

2004

2005

2006

2007

2008

Source: New York DOCS

19

New York State, Department of Correctional Services, Statistical Reports on Inmate Populations, Court

Commitments 2006, 2007, 2008,at http://www.docs.state.ny.us/Research/annotate.asp#pop

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

22

AVERAGE TIME SERVED BY PEOPLE WITH A DRUG POSSESSION
CONVICTION 2000-2008 (IN MONTHS)
40
33.7

35
31.5

32.6

35.5

35.9
31.4

31.5

30

29.8

28.6

2007

2008

25
20
15
10
5
0
2000

2001

2002

2003

2004

2005

2006

Source: New York DOCS

Gabriel Sayegh of DPA stresses that the mid-decade partial reforms of the Rockefeller
Drug Laws marked how political debate about drug policy had shifted significantly
during the period, sparked in part by a political upset in a closely-watched race for
District Attorney in the state capital:
The election of David Soares as DA in Albany in 2004 was a watershed
event in the fight for Rockefeller reform. David ran on a platform that
offered drug policy reform as the strongest plank. He rose up directly from
the courtroom to challenge the policies of his boss – garnering support of
voters from the urban core and the affluent suburbs alike, who responded
to his bold declaration that the Rockefeller Drug Laws represented the
wrong approach. He promised something different, and his campaign
helped to galvanize support for change far and wide – resounding well
beyond the boundaries of the state capital.
David Soares’ victory sparked a new growth of political muscle that
gained unstoppable power when David Paterson assumed the state’s
Governorship, and Democrats – long in command of the New York State

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

23

Assembly – won leadership in the State Senate in 2008. But it would be
a mistake to think that drug policy is a purely partisan issue in New
York. We should not forget that the early, partial Rockefeller reforms
were enacted during the Pataki administration, with support of a State
Senate where leadership on criminal justice issues was held by upstate
Republicans whose districts were peppered with prisons built during the
Cuomo administration.

The Ongoing Focus on Reform
The mid-decade reforms provided significant relief from some of the harshest
provisions of the Rockefeller Drug Laws, but reform advocates insisted that they did
not go far enough. People sentenced for drug crimes in New York charged with a
class B felony (37 percent in 2008), along with those sentenced for a second nonviolent felony conviction (67 percent in 2008), remained subject to rigid mandatory
prison sentences. Judges still lacked discretion to decide whether treatment would
be a more constructive choice than imprisonment, or whether a defendant might be a
good candidate for an alternative to incarceration program that would involve them
in education or job training.
In the fall of 2008, the New York State Assembly convened unprecedented joint
hearings on the need for further reform of the Rockefeller Drug Laws. The
combined leadership of six legislative committees (Assembly Standing Committee
On Codes; Assembly Standing Committee On Judiciary; Assembly Standing
Committee On Correction; Assembly Standing Committee On Health; Assembly
Standing Committee On Alcoholism And Drug Abuse; and Assembly Standing
Committee On Social Services) held day-long sessions in New York City and
Rochester, taking testimony from national experts and advocates about the need to
establish, in law and policy, a “health-based approach” to the drug issues affecting
New Yorkers.
Early in 2009, a renewed state-wide campaign was launched by advocates seeking a
major shift in sentencing policy. Gabriel Sayegh served as a key strategist among

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

24

many who steered the effort to victory. He says that the political climate had
changed to a point where key stakeholders could finally take action:
There was a growing awareness that health issues needed to take center
stage over the “business-as-usual” approaches taken by traditionalists
within the criminal justice system. For the first time, a statewide
coalition of service providers, policy advocates, treatment and medical
professionals was poised to convince lawmakers that restoration of judicial
discretion in drug sentencing and much broader access to a wide range of
treatment options are good public policy.
In January more than 300 people gathered in New York City to participate in a
conference convened jointly by the Drug Policy Alliance and the New York Academy
of Medicine. Sayegh says that the broad spectrum of people who were assembled to
talk about drug policy issues at that meeting was unprecedented:
We had leaders of the medical society along with veterans from law
enforcement; we had treatment professionals and representatives of
VOCAL, the union of active and former drug users; we had reform
advocates and elected public officials; we had academicians from the
Columbia School of Public Health and farmers from upstate where farms
were bordered by barbed-wire fences and prison gates. The consensus that
emerged called for more than just a change in policy – it called for a
change in thinking.
Speaker Sheldon Silver of the New York State Assembly responded with a pledge that
2009 would be the year that “real reform” of the Rockefeller Drug Laws would be
won. Advocates cheered on April 7, 2009, when New York’s Governor David
Paterson signed the promised reforms into law. Crucial elements of the 2009 drug
law reforms include:
•

Judicial discretion to place people convicted of drug offenses into treatment
and to offer second chances when appropriate.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

•

25

Diversion for people who commit crimes other than drug offenses because of
issues stemming from substance dependence.

•

Diversion eligibility for people convicted of second felony offenses.

•

Opportunities to try community-based treatment without the threat of a
longer sentence for failure.

•

Plea deferral options, especially for non-citizen green-card holders who would
become deportable if they take a plea to any drug felony conviction, even if it
is later withdrawn.

•

Opportunities for re-sentencing for more than 900 people who received
indeterminate sentences for drug convictions under the longer pre-2005
sentencing ranges and who are still serving those sentences in state prison.

•

Sealing provisions that will protect people who finish their sentences from
employment discrimination based on the past offense.

•

The option to dismiss a case in the interests of justice when the accused has
successfully completed a treatment program.

In addition to Rockefeller Drug Law reform, other reforms enacted in 2009 make it
easier for certain people to gain release from prison. Eligibility for release through
Shock will be extended to more people serving terms for non-violent crimes.
Medical parole is now available for people suffering from a serious and permanent
medical disability who do not pose a threat to public safety and who have served at
least half of their prison term. And “merit time” credits have been increased for
people who take college courses, enroll in state-approved apprenticeships, or work as
a prison hospice aide.
Prison admissions for drug crimes declined noticeably as soon as the Rockefeller
reform was enacted. Monthly admissions for drug violations between January 2008
through March 2009 averaged 431. In November 2009 the number admitted was
just 270.20

20

Data obtained from DOCS, on file with the authors.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

26

PERCENTAGE OF DRUG ADMISSIONS OF ALL PRISON ADMISSIONS
40%

35%

30%

35.2%
35.3%
32.7%
33.7%
33.6% 33.2%
32.3%
32.3%
32.3% 32.0%
31.1%
31.0%
30.7%
30.7%

34.3%

28.6%

28.3%
27.6%

26.7%
25.6%

28.5%

25.4%

25.1%

25%

20%

15%

10%

5%

0%
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov
08 08 08 08 08 08 08 08 08 08 08 08 09 09 09 09 09 09 09 09 09 09 09

With thousands of empty prison beds, New York’s correctional managers have
continued to downsize prison capacity to save money. In the last three years some
2,700 dormitory beds have been deactivated. And the sweeping changes in the
Rockefeller Drug Laws enacted in April 2009 are expected to further decrease the
load on the prison budget. Last year saw the closure of three small minimum
security prisons and the shuttering of annexes at six prisons that remain in operation,
estimated to save New York taxpayers some $26.3 million in the 2010-2011 state
budget.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

27

MICHIGAN
PRISON POPULATION REDUCTION: 12% DECLINE FROM 51,577 IN 2006 TO
45,478 IN 2009

Strategic Initiatives:
•

Scaling back mandatory drug sentences

•

Increasing parole grants and reducing technical revocations

•

Enhancing community corrections programming

ANNUAL PRISON POPULATION CHANGE IN MICHIGAN
3,000
2,031

1,742

2,000
1,101

1,131

2000

2001

663

1,000

0
2002

2003

-1,000

2004

2005

2006

2007

2008

2009

-475
-1,233

-1,344

-2,000
-1,495
-3,000
-3,360
-4,000

Michigan operates the seventh largest prison system in the nation, and is one of four
states in the U.S. that spends more on prisons than on higher education.21
21

Sabol, William J., Heather C. West, and Matthew Cooper. (December 2009) “Prisoners in 2008.” Washington, DC:

Bureau of Justice Statistics; PEW Center on the States. (February 2008 ) “One in 100: Behind Bars in America 2008.”
Philadelphia, PA: Pew Charitable Trusts.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

28

Michigan’s prison population began to boom in the 1970s, rising from 10,855 in
1975 to a high of 51,577 at the end of 2006. With 488 people in prison per
100,000 residents, Michigan maintains the second highest incarceration rate in the
Midwest.
The “get-tough” era was well underway in 1978 when Michigan voters approved a
ballot measure in 1978 that eliminated “good time” credits that had been helping to
shorten prison terms. Some of the nation’s toughest mandatory minimum drug laws
were already in place when, in 1992, Governor John Engler revamped the parole
board, replacing professional experts with political appointees. Parole approval rates
nosedived, driving a steady increase in the prison population until 2002, when
historic sentencing reforms began to help reduce the number of people in state
custody.
The state’s prison capacity buildup began in the 1980s. Through the 1990s, a
construction boom financed with approval of nearly $1 billion in prison bonds could
not keep up with demand. By 1998 the state had shipped 1,500 prisoners to rented
beds in Virginia until construction of new prison beds could allow their return. The
prison budget ballooned, and is now taking up about $2 billion – more than onefifth of all general fund spending, up from just three percent of the 1980 budget.22
Over the past eight years, Michigan policy makers have taken a series of steps to
reduce reliance on imprisonment. Reforms enacted by legislators in 2002 provided
judges with more discretion to sentence people in need of substance abuse to
treatment, and allowed people sentenced under the harshest drug laws to be
considered for parole. The reforms brought immediate relief to the state’s crowded
prison system, and continue to reduce the share of state prison beds occupied by
people convicted of drug crimes to one of the lowest levels in the nation. More
recent efforts by managers at the Michigan Department of Corrections (DOC) are
helping to reduce prison admissions, increase parole release, and provide a statewide
22

Cain, Charlie. “Michigan inmates fall to seven year low.” Detroit News, May 18, 2009.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

29

reentry initiative designed to increase parole success and avoid returning people to
prison.

Abolition of Mandatory Minimums in Michigan
Near the end of his second term in 2002, Governor Engler signed legislation
enacting landmark sentencing reforms long advocated by Families Against
Mandatory Minimums (FAMM). With the solid support of Michigan’s judges and
prosecutors and endorsement from the Republican leadership that controlled both
houses, legislators repealed almost all of the state’s mandatory minimum drug
statutes – long cited among the toughest in the nation – replacing them with drug
sentencing guidelines that restored discretion back to Michigan’s judges. The
reforms signaled a bi-partisan consensus that heavy reliance on imprisonment for
drug crimes was counterproductive.
Since establishment of Michigan’s Community Corrections Act in 1988, judges had
been encouraged to make use of their limited discretion in low level possession cases
to divert people to community-based treatment. But before the FAMM reforms
took effect, someone convicted of drug sales, or conspiracy to sell drugs, or
possession of large quantities of drugs with intent to sell, faced stiff statutorilymandated penalties: mandatory minimum prison terms, imposed consecutively if
multiple charges were involved, or – even in very low-level cases – lifetime probation.
These sentences were based solely on the weight of the drugs involved. A person’s
prior record, role in the crime, or personal circumstances – all factors that are
normally assessed by judges as they make sentencing decisions under Michigan’s
sentencing guidelines system – did not matter, because drug offenses were subject to
rigid mandatory minimums and therefore were not covered under the guidelines.
FAMM’s reform package eliminated almost all mandatory minimums and folded the
sentencing process for drug offenders into the Michigan guidelines system. Drug
weight remains important, but is not the only factor to be considered in selecting a
sentence. Under the guidelines system, people with serious aggravating factors (e.g.,

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

30

those with an extensive criminal history, or those who used a weapon) still face a
presumptive prison sentence, but judges have discretion to sentence those who
possess or sell less than 50 grams of narcotics to an intermediate sanction instead of
prison. The 2002 reform included “retroactive repeal” of mandatory sentences
already imposed, allowing some 1,200 persons sentenced under the old mandatory
minimum laws to become eligible for parole consideration.

The Impact of the Reforms on Michigan’s Prison Population
The charts displayed below illustrate that the reforms worked quickly to reduce the
number of people in prison for drug crimes. The first chart shows that since judges
gained discretion in sentencing people convicted of drug crimes, they have been
sending fewer and fewer such people to prison:

PERCENTAGE OF PEOPLE CONVICTED OF DRUG CRIMES
SENTENCED TO PRISON
25%
20%

20%

20%

18%

17%

18%
15%

14%

15%
13%

13%

12%
11%

10%

5%

0%
1998

1999

Source: Michigan DOC

2000

2001

2002

2003

2004

2005

2006

2007

2008

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

31

The sharpest reduction in the number of people in prison for drug crimes came in
the first year – due in large part to the “retroactive repeal” of mandatory drug
sentences:

NUMBER OF PEOPLE CONVICTED OF DRUG CRIMES IN PRISON
7,000

6,000

5,799 5,734
5,620 5,495 5,485

5,000

4,517 4,339

4,314

4,427
3,972

3,750

2007

2008

4,000

3,000

2,000

1,000

0
1998

1999

2000

2001

2002

2003

2004

2005

2006

Source: Michigan DOC

Reduced reliance on imprisonment has significantly reduced the proportion of prison
beds occupied by people convicted for drug offenses:

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

32

PERCENTAGE OF PRISON POPULATION CONVICTED OF DRUG CRIMES
14%

12.6%

12.3%

12%

11.8%

11.3%
10.8%
9.2%

8.9%

10%

8.7%

8.6%
7.9%

7.7%

2007

2008

8%
6%
4%
2%
0%
1998

1999

2000

2001

2002

2003

2004

2005

2006

Source: Michigan DOC

The Need for Parole Reform
Within three years after the law change the overall prison population was on the rise
again. While crime rates for murder and rape declined in 2005, up-ticks in other
categories were followed by a modest increase in the prison population that year.
The following year, a spike in homicides, including three murders committed by a
parolee, shocked the criminal justice system into “crack-down” mode, producing
more sentences to prison, a lower rate of parole approvals, and more people revoked
for violation of probation and parole rules.
Parole board practices had done much to drive prison population growth in the
1990s. Michigan's get-tough parole policies took hold in 1992, after a series of rapemurders by a parolee led to replacing a longstanding civil-service parole board
comprised of corrections professionals with a board of political appointees. Parole
grant rates fell from 68 percent in 1990 to 48 percent by 2002.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

33

The Citizens Alliance on Prisons and Public Spending (CAPPS) was established in
2000 to focus on the need for parole reform.23 Barbara Levine, CAPPS executive
director, says that the decline in parole rates reflected a fundamental shift in
philosophy:
In the past, the board employed a rebuttable presumption that the
prisoner would be released after serving the minimum sentence imposed
by the judge, unless there was poor institutional conduct or an objective
reason for finding a current risk to the public. Sentencing judges relied on
this practice, as did prosecutors and defense attorneys when they
negotiated guilty pleas. Prisoners were encouraged to believe they could
earn their release.24
Levine says that after the composition of the board was changed, the members
effectively placed the burden on the person seeking parole release to prove that he or
she was not a risk and should not be required to serve the maximum sentence. The
board placed the most emphasis on the crime and on prior record, two factors that
cannot be changed, and the primary factors on which the original sentence had
already been based.
After the board’s membership was changed to political appointees in
1992, it was given a mandate to get tough, especially on people convicted
of assaultive and sex offenses. Parole approval rates dropped dramatically.
It didn’t matter that people were at low risk for re-offending and had
excellent institutional records. They were effectively resentenced for their
crimes. As a consequence, as recently as December 2008, there were
9,000 prisoners with indeterminate sentences who had served beyond
their first parole eligibility dates.

23

See CAPPS website, online at http://www.capps-mi.org/index.html

24

Barbara Levine, email communication, December 27, 2009.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

34

Improving Data Analysis and Planning
While parole grant rates fell, the rate of persons admitted to prison for parole
revocations rose. The primary problem was technical violations – failure to abide by
the rules of parole supervision. Between 1994 and 2000 the rate of violations for
new crime convictions dropped to levels lower than in the 1980s. During the same
period, the number of technical violators burgeoned, from 1,916 in 1995 to 3,111 in
2000.
During 2005, managers at the DOC began new efforts to address these problems.
Dennis Schrantz, former Deputy Director for Planning and Community
Development, built a consolidated base within the DOC for planning, development,
and management of local programs under the state’s Community Correction Act.
Schrantz secured a $2 million foundation grant in 2006 for a pilot test of the
Michigan Prisoner Reentry Initiative (MPRI) in a few localities across the state.
In 2003, I was Chief Deputy Director of Field Operations (probation
and parole). In 2004, we created a new administration that I headed up
called the Policy and Planning Administration. In 2005 we reorganized
the agency for the second time, to respond to an evolving environment of
planning for execution of evidence based practices.
We put all planning and community organization in one spot. We
brought in the Office of Community Corrections, then administered
under Field Operations, to form a new Planning and Community
Development Administration, which also included the policy and legal
office, and the research office. This proved to be very, very productive.
The MPRI was created under this umbrella. Our reentry paradigm was
designed in parallel to the early 1990s Community Corrections Act
process for working with local jurisdictions. This involved a state/local
planning process resulting in a tailored reentry strategy for each locality,
and distribution of funding to the local level that ties dollars to

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

35

performance. And we brought the parole board into the center of the
planning process.25
DOC involvement in the local MPRI “Steering Teams” helps to provide a level of
state-wide consistency, while ensuring that key decisions about design and
implementation include local officials and community leaders.
These Steering Teams are responsible for developing and reaching
consensus in a collaborative manner [on] a local, community-based
Comprehensive Prisoner ReEntry Plan that is submitted to the
Administrative Agency’s Governing Body for approval. The Plan must
address 16 service areas such as housing, employment, substance abuse
services, mental health, transportation, victim services, and the
involvement of local law enforcement and faith-based institutions. For
each of these 16 service areas, the Comprehensive Plan describes the local
assets that are in place to increase the potential for success for former
prisoners, barriers that impede maximum use of these assets, gaps in
services, and proposed solutions to address the barriers and gaps. Thus, the
plan builds upon existing services and embeds their use within the context
of comprehensive service delivery.26
At the state level, MPRI provides better training and more sophisticated assessment
instruments for parole board members to raise their confidence in parole plans and
expected outcomes, thus enabling higher parole approval rates. During 2007, DOC
managers initiated a review by the parole board of people who were serving active
sentences for only drug or other nonviolent, non-weapon crimes and who were past
their earliest release dates.
Once MPRI was expanded statewide, an expanded strategy was introduced to reduce,
as much as possible, the number of people who remain in prison past their earliest
release dates (ERD) due either to denial of parole, or because they have been

25

Dennis Schrantz, interview with Judith Greene on December 24, 2009.

26

DOC Issues Brief, “MPRI Local Governance Structure,” September 22, 2008

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

36

returned to prison for parole violations. Within two years these efforts have increased
approval rates by 15 percent:27

PAROLE APPROVAL RATES
70%
61.8%
54.7%

60%
50%

47.3%

51.8%

51.5%

2003

2004

58.1%
51.7%

52.5%

2006

2007

47.7% 48.4%

40%
30%
20%
10%
0%
2000

2001

2002

2005

2008

2009

Source: Michigan DOC

The parole board now uses more “data-driven” release policies to identify people who
pose lower risks to public safety, and parole officers make more use of intermediate
sanctions to handle rule violations. Two prisons near Detroit have been designated
“reentry prisons,” allowing people who are nearing parole dates to be assisted in
planning for release by staff of local housing and employment agencies.28
Collaborative case management approaches help to reduce violation rates. Under
MPRI, those who break the rules can be punished with use of electronic monitoring,
a short stint in a local jail or in one of the state’s two “residential re-entry centers”

27

Michigan Department of Corrections. “Prison Population Projection Report” (January 2009) Lansing, MI.

28

Editorial. State plan can safely cut prisons.” Detroit Free Press, March 13, 2009.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

37

instead of being shipped back to prison. By the end of 2007 MPRI had been
expanded to the entire state.29
The number of people admitted to prison for a technical violation of parole fell by
22 percent after MRPI was taken to scale, representing 47 percent of the net
reduction in all prison admissions between 2006 and 2008:

TECHNICAL PAROLE VIOLATORS ADMITTED TO PRISON
3,500
3,111

3,236

3,289
3,013

2,859

3,158

3,000
2,500
2,161

2,095

1,893

2007

2008

2,000
1,500
1,000
500
0
2000

2001

2002

2003

2004

2005

2006

Source: Michigan DOC

Technical parole revocations are down by 42 percent since the record high year of
2002, despite a 40 percent increase in the size of the parole population.30 There are
now more than 21,000 people on parole, yet they commit fewer violations than

29

Michigan DOC. “Policy Reforms that Reduce Corrections Spending.” (October 2009) Powerpoint document

obtained from Dennis Schrantz, on file.
30

Ibid.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

38

when the parole population was below 16,000.31 The rate of people under parole
supervision who are returned to prison is the lowest on record, just 194 per 1,000.32
MPRI’s budget has received rapid increases in its funding stream – more than $56
million this fiscal year -- from the legislature. Nearly 130 new parole and probation
officers have been hired since October 2008.33 By the end of 2009 corrections
officials expected to parole nearly 13,000, compared to just 7,173 people released
from prison on parole in 2000.

More Effort at the “Front End” is Spurring a Drop in Prison Admissions
Other “front end” reform efforts have helped to curb population growth and reduce
the need for prison beds. Use of graduated sanctions and services that respond to the
level of risk and need have improved outcomes for people sentenced to probation.
Less than seven percent fail and go to prison. The annual number of probation
violators admitted to prison has fallen by 16 percent since 2000.
In 2008, felony court dispositions decreased for the first time, following eight
consecutive years of growth.34 Dennis Schrantz, the principal architect of MPRI, had
already taken steps to increase diversion for people who could be effectively handled
by the state’s network of community corrections programs.
Part of the recent effort to reduce the prison population involved our
community corrections agencies in targeting diversion of people for whom
judges are given discretion in sentencing under Michigan’s sentencing
guideline system.35

31

Eggert, David. “Mich. Official expects under 500 prison layoffs.” Chicago Tribune, June 9, 2009.

32

Grasha, Kevin. “State, Lansing officers take proactive role on parolees.” Lansing State Journal, November 22, 2009.

33

Ibid.

34

DOC. “Prison Population Projection Report.”

35

Dennis Schrantz, interview with Judith Greene on December 24, 2009.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

39

The sentencing guidelines system works within an indeterminate sentencing
structure. Where a prison term is warranted, the judge imposes a maximum term as
set by statute for the crime, and then chooses a minimum term, within a
recommended guidelines range, that the offender must serve before becoming paroleeligible.
Statutory offenses are classified into six crime categories and nine crime classes.
Individual defendants are scored for placement within a guidelines grid by
application of 20 different offense variables and seven prior record variables. The
sentencing grid contains three types of dispositional “cells.” The most serious require
a prison sentence. The least serious prescribe a non-custodial penalty. The third
type, called “straddle” cells, allow the judge to choose either a prison sentence or an
“intermediate” sanction. Schrantz describes this as follows:
We thought that the discretion afforded under the guideline system was
not being used as effectively as possible. When our guidelines commission
created “straddle cells,” they estimated that only about 20 percent of the
cases that fell into this category would be sentenced to prison. But when
we looked at the actual sentencing practice, we found that a much higher
percentage of the people in this category were sent to prison – 43 percent
in 2001, although it had previously been much higher. So we decided to
restructure the community corrections comprehensive planning
expectations to create incentives for targeting straddle-cell cases for
diversion to “best-practice” alternative sanctions, and we saw that figure
drop to just 33 percent.
Spurred by more targeted use of community corrections resources for “straddle cell”
cases, new court commitments to prison fell by 11 percent between 2006 and 2008.
Meanwhile, Michigan’s rate of violent crime fell by 11 percent.
At the beginning of 2008, the Council of State Governments (CSG) was invited to
convene a workgroup of Michigan policymakers under CSG’s national “Justice
Reinvestment” initiative. The Justice Reinvestment workgroup includes

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

40

representatives from the Governor’s Office, the DOC, and members of both the
House and Senate. Their review of correctional policies and data trends has helped
to build a strong consensus for pragmatic options to reduce the prison population.
As the state fiscal crisis deepened, DOC managers were able to implement immediate
changes in response.
During fiscal year 2008, the parole board granted about 25,000 paroles, compared to
fewer than 19,000 for fiscal year 2000. Yet at the beginning of 2009, thousands of
parole-eligible prisoners remained behind bars.36 Prison costs $90 per day in
Michigan, compared to $6 for parole supervision.37 Facing a $1.8 billion deficit in
the 2010 fiscal year, Governor Granholm expanded the parole board from 10 to 15
members to rev up the review process and urged the board to take a closer look at
them.38 Barbara Levine is measured in her assessment of progress made to date:
Finally, under pressure from enormous budget deficits and increased
public focus on Michigan’s high incarceration rate, in 2009, the parole
board began large-scale reconsideration of people who had been denied
release. It is relying more on risk assessment scores and approval rates are
climbing even for assaultive and sex offenders.
While a corner has clearly been turned, there is a lot of pushback from
prosecutors and others who predict dire consequences from the governor’s
willingness “to free dangerous criminals in order to save money.” Efforts
to address these concerns by requiring prisoners to take additional
programming have created a bottleneck in treatment service delivery and
slowed the actual release on parole.”
In June 2009, DOC managers announced plans to lower the prison population by
3,500 to 4,000 people, allowing closure of three prisons, including a maximum

36

Editorial. “State should expand parole board to cut prison stays and costs.” Detroit Free Press, February 4, 2009.

37

Bell, Dawson. “Are savings from freeing felons worth the risk to safety?” Detroit Free Press, May 24, 2009.

38

Bouffard, Karen. “State bills offer cost savings for prisons.” Detroit News, April 28, 2009; Eggert, David. “Analysis:

Granholm’s prison plan is ambitious.” Crains Detroit, February 16, 2009.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

security facility at Standish, along with five prison camps.39 Budget savings were
projected at $118 million.40 Schrantz says that the effort to close prisons has not
simply involved front and back-end strategies.
Over the course of Michigan’s downsizing effort we were able to close nine
prison facilities by consolidating operations and redesigning use of existing
space. A more sophisticated classification system using typologies that
assign people according to their particular correctional risks and needs can
reduce the need for static high-security single-bunked housing, facilitating
many cost-saving efficiencies of scale.

39

Christoff, Chris. “Michigan to close 8 prison facilities.” Detroit Free Press, June 5, 2009.

40

Eggert, David. “Michigan to announce closure of prison facilities.” Chicago Tribune, June 5, 2009.

41

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

42

NEW JERSEY
PRISON POPULATION REDUCTION: 19% DECLINE FROM 31,493 IN 1999 TO
25,436 IN 2009

Strategic Initiatives:
•

Scaling back prosecutorial plea negotiation guidelines for “drug free zone” cases

•

Increasing parole grants and reducing technical revocations

ANNUAL PRISON POPULATION CHANGE IN NEW JERSEY
1,000
602
500
12
0
2000

2001

2002

2003

2004

2005

2006

2007

2008

2,009

-500
-489

-251
-645

-517

-544

-1,000
-874
-1,500
-1,709

-1,642

-2,000

In August of 1999, New Jersey’s prison population hit an all-time high of 31,962, up
from just 5,886 in 1980. In May 2000, three men who were confined at the
Riverfront State Prison in Camden filed a class action lawsuit in the United States
District Court for the District of New Jersey against the State Parole Board. They
complained that the Parole Board was failing to meet deadlines required by state law
for preparation of pre-parole reports and for timely hearings. As a result, thousands
of people remained incarcerated past their respective parole eligibility dates. Their

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

43

complaint spurred an investigation, revealing that at the peak of the problem,
hearings were behind schedule for approximately 5,800 eligible people.
Soon after the case was filed a settlement agreement was approved by the court.
Under the terms of the agreement, the parole board stipulated that it would conduct
more timely hearings, and that no such backlog would be allowed to build up again.41
Mario Paparozzi, an Assistant Professor at the College of New Jersey who had
previously served as Assistant Commissioner at the Department of Corrections
(DOC), was brought in to reform the parole system. Along with changes at the
board level, he also established a set of administrative policies designed to bring
agency operations into line with evidence and findings drawn from research and
evaluation literature about the most effective methods and strategies for supervision
of people on parole:
When I was appointed as Chair of the Parole Board in December 2000,
the prison budget was crushing the state. Many things needed to change,
but my first challenge was meeting a two-year deadline that had been set
for elimination of the hearings backlog. We streamlined the process, got
the staff working around the clock, and introduced video teleconferencing
to cut down on the time it took to bring people before the board for a
hearing. We managed to get the job done before the deadline.
Eliminating the backlog was easy compared to the challenge of changing
the mindset within the agency. I managed to move parole out of the
DOC as an independent agency with its own budget, and I engaged the
leading international experts to help us retool our operations with
evidence-based practices.
We understood that “zero tolerance” policies toward issues like drug use
and non-compliance with parole rules didn’t make sense, and we
embraced ideas such as day reporting and electronic monitoring to address
these issues. We introduced a state-of-the-art risk assessment instrument.
I assured the staff that if and when ‘something bad’ happened (as
41

Hawker v. Consovoy, 198 F.R.D. 619, 626 (D.N.J. 2001)

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

44

inevitably, from time to time, it will) we would not be slammed in the
press, so long as we could assure the public that we’d done everything
possible to avoid such difficulties.42
Paparozzi’s reforms increased the number of people who won parole release from just
3,099 in 1999 to 8,277 in 2000, and 10,897 in 2001. And the new decision-making
tools and improved methods of supervision helped to spur the board toward
significantly higher rates of parole approval:

PAROLE APPROVAL RATES
70%
57.2%

60%

60.8% 61.0%

57.5%

59.9%
54.5%

51.0%
50%

48.8%

49.9%

2001

2002

40%
30.1%
30%
20%
10%
0%
1999

2000

2003

2004

2005

2006

2007

2008

Source: New Jersey Parole Board

Reducing Parole Revocations to Prison
Paparozzi returned to academia in 2003, but the success of his effort to change the
organizational “mindset” within the parole agency is reflected in recent statistics that
show that even though many more people are gaining parole release, far fewer are
being sent back to prison for parole violations:

42

Mario Paparozzi, personal interview with Judith Greene on November 22, 2009.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

45

TECHNICAL PAROLE VIOLATORS ADMITTED TO PRISON
4,000
3,393

3,505

3,500
2,895

3,000

2,760
2,529

2,500
2,038
2,000
1,500
1,000
500
0
FY 2004

FY 2005

FY 2006

FY 2007

FY 2008

FY2009

Source: New Jersey Parole Board

More than eight in ten people sent back to prison by the parole board are technical
violators – those who break the rules imposed on them by the authorities. Until
recently, rule violators were confined in local jails, “doing dead time” until they were
taken back before the parole board for a violation hearing. Beginning in July 2008,
the continuing effort to reduce returns to prison for rule violators was further
augmented by establishment of Regional Assessment Centers (RAC), residential
facilities designed to confine up to 45 people at a time for 15 to 30 days of
lockdown. During this period, they are subjected to a battery of tests that aid the
parole board in determining whether they should be allowed to continue under
parole supervision. As described in the program materials:

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

46

Evaluations focus on mental health, social, familial, and economic needs
as well as actuarially ascertained risk. The evaluations provide the
[parole board] with data about the criminogenic risks and needs of the
individual at the time that they demonstrate problem behaviors. This
increases the ability of the [board] to make a more informed decision
about whether to revoke an individual’s parole and send them back to
prison or to continue the individual’s parole supervision in the
community. For those parolees that do not have their parole revoked, the
RAC allows for more appropriate and informed triaging.43
By February 2009, 810 people had passed through the RAC system. Just 46 percent
were returned to prison, compared to the normal return-rate of 81 percent for rule
violators. The current budget for the RAC programs is $3,786,000.44
The effort to reduce imprisonment of people on parole for rule-breaking has made a
significant contribution to the overall decrease in New Jersey’s prison population.
Since the beginning of 2000, the number of prison beds occupied by rule-breakers
has fallen by 68 percent, accounting for 56 percent of the overall net reduction in the
prison population.

Drug Policy Reform has also helped to Reduce the Prison Population
As in the rest of the nation, “get tough” laws enacted in New Jersey during the 1980s
to crack down on people who commit drug crimes made a major contribution to
prison population growth through the 1990s. After enactment of the
Comprehensive Drug Reform Act (CDRA) in 1986, the proportion of people
serving time for drug offenses rose steadily, as did the proportion serving mandatory
minimum terms. Conversely, the proportion of people in prison who were
incarcerated for a violent offense (homicide, sexual assault, assault, robbery,
kidnapping, and other sex or person offenses), declined from 64 percent the year that
CDRA was enacted to 42 percent by 2003.
43

RAC Description – on file

44

Megerian, Chris. “New state initiative seeks to reduce prison overcrowding.” Newark Star Ledger, May 10, 2009.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

47

A principal feature of CDRA is the “drug free zone law.” Distributing, dispensing,
or possessing drugs with intent to sell on school property, within 1,000 feet of a
school, or on a school bus is a third-degree offense that – until January 2010 –
carried a three-year mandatory minimum. Distributing, dispensing, or possessing
drugs with intent to sell within 500 feet of a public park, a public housing project, or
a public building will not trigger a mandatory minimum, but this offense is a seconddegree crime for which a prison term is the presumptive sentence.
New Jersey ranks number three in the nation for the degree of racial disparity in its
incarcerated population.45 More than a third of the people in prison for a drug crime
were convicted of a drug free zone offense.46 Ninety-six percent of them are people
of color.47 Spurred by members of Families Against Mandatory Minimums who
raised concerns about the impact of the drug free zone law on urban communities,
state legislators established a sentencing commission in 2004 that made the law the
subject of its first investigation.
The commission’s report detailed the “urban effect” of the drug free zone laws. In
urban areas where schools, parks, and public housing developments are numerous
and closely spaced, overlapping zones turn entire communities into prohibited zones.
By blanketing densely populated African American and Hispanic neighborhoods
while most suburban and rural geographic areas remain relatively zone-free, the laws
create unwarranted racial disparity in the use of incarceration for people convicted of
drug offenses.48
45

Mauer, Marc and Ryan King. Uneven Justice: State Rates of Incarceration by Race and Ethnicity. Washington, DC:

The Sentencing Project. July 2007. Online at
http://www.sentencingproject.org/doc/publications/rd_stateratesofincbyraceandethnicity.pdf
46

Families Against Mandatory Minimums fact sheet, “The High Cost of the Drug Free School Zone Law in New

Jersey: Is it Worth the Money?” online at http://www.famm.org/Repository/Files/Bang_for_the_Buck_Fact_Sheet__316-09__FINAL%5B1%5D.pdf
47

GEAR Task Force report, online at www.state.nj.us/governor/pdf/gear_school_zone_report.pdf; New Jersey State

Profile, online at http://www.pewcenteronthestates.org/.../New Jersey state profile 07-08.pdf
48

“Report on New Jersey’s Drug Free Zone Crimes & Proposal For Reform.” Trenton, NJ: The New Jersey

Commission to Review Criminal Sentencing. December 2005. Online at http://sentencing.nj.gov/publications.html

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

48

Even before the commission completed its study, the New Jersey Office of the
Attorney General revised the guidelines that govern plea negotiations by county
prosecutors in drug cases. The revision exempted people charged with the lowest
level drug free zone offenses from strict application of the law. The change
authorized prosecutors to offer “open pleas,” of guilt that left determination of a
sentence to the discretion of the judge.49 That same year, the court system expanded
the New Jersey drug court model statewide, encouraging judges to consider “open
plea” cases for treatment in the drug court.50
The number of people serving prison time for drug crimes has steadily declined since
these policy reforms were introduced, dropping from 9,177 (35 percent of the prison
population) in 2004 to 7,377 (29 percent of the prison population) in 2009. During
the same period the proportion of African Americans in the prison system dropped
from 64 percent to 61 percent, suggesting that the reforms may have mitigated some
degree of racial disparity.51
Advocates at FAMM, the Drug Policy Alliance and the ACLU continued to press for
more fundamental change. In 2009, eight former New Jersey Attorneys General
expressed support for increasing judicial discretion, and policy makers responded.
Near the end of the year, legislators approved Senate Bill 1866, a measure that would
allow judges to take account of factors such as whether a school zone offense
occurred when school was in session, its proximity to school grounds, and whether
children were present, as they decide whether to reduce the required minimum
sentence or to impose probation. A sentence could not be reduced if the offense took
place on school grounds or if it involved violence or a gun.52 The Assembly approved
a companion bill, AB 2762, in January 2010, just in time for outgoing Gov. John

49

Brimage Guidelines 2, available online: http://www.state.nj.us/lps/dcj/agguide/directives/brimagerevision.htm

50

Bill Burrell, personal interview with Judith Greene, November 19, 2009.

51

NJDOC statistical reports, online: http://www.state.nj.us/corrections/offstats.html

52

Megerian, Chris. “Repeal of mandatory minimums in drug cases clears N.J. Senate,” Star Ledger, December 10,

2009.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

49

Corzine to sign it into law. The new law allows retroactive relief to those currently
serving a mandatory term time under the law, who will be allowed to appeal the
sentence they received under the old law.53
New Jersey taxpayers spend $46,000 to incarcerate someone in prison for one year.
About one-third of the DOC’s $1 billion budget is spent to incarcerate nonviolent
drug offenders.54 Since 1999, a combination of drug policy reforms and parole
system improvements have opened the door to significant fiscal savings with no
apparent adverse impact on public safety. Between 1999 and 2008, the rate of
violent crime dropped by 21 percent, while property crime fell by 23 percent.
In June, 2009, DOC managers closed the Riverfront State Prison, a 1,000-bed
prison in Camden, with annual operating costs of $42 million.55
Devon Brown, who served as New Jersey’s Commissioner of Corrections from 2002
to 2005, says that New Jersey’s declining prison population reflects a major shift in
correctional policy, “from a retributive model to one placing increased emphasis on
rehabilitative programming.” As Commissioner, Brown was tireless in his advocacy
for progressive reforms, working hard to sensitize New Jersey policy makers, elected
officials and the public about the need for more effective programs concentrated on
educational growth, vocational development, drug and mental health treatment.
Brown was especially outspoken about the problem of racial disparity in the prison
system, and he was an early, vocal supporter of proposals to reform the “drug free
zone laws,” which finally became law in early 2010.

53

Megerian, Chris. “N.J. Assembly approves ending mandatory prison sentences for school zone drug offenses.” Star

Ledger, January 10, 2009.
54

Kleykamp, Meredith, Jake Arosenfeld and Roseanne Scotti. Wasting Money, Wasting Lives: Calculating the Hidden

Costs of Incarceration in New Jersey. Trenton, NJ: Drug Policy Alliance.
55

Associated Press Wire Service, January 15, 2009

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

50

KANSAS
PRISON POPULATION REDUCTION: 5% DECLINE FROM 9,132 IN 2003 TO
8,644 IN 2009

Strategic Initiatives:
•

Scaling back drug sentencing guidelines

•

Improving community supervision and reducing technical revocations

•

Building safer communities through Justice Reinvestment

ANNUAL PRISON POPULATION CHANGE IN KANSAS
400

358

300
233
197
200
105

102
100

0
2000

2001

2002

2003

2004

2005

2006

2007

2008

2,009

-100
-130
-200

-147

-166
-223

-300

-252

In 2002, the prison population growth rate of 4.2 percent in Kansas was almost
double the growth rate for the nation as a whole. Kansas had exceeded regional and
national averages for the preceding decade, with population growth of 56 percent –
from 5,727 in 1993 to 8,935 at the end of 2002. Tougher drug laws were
contributing to the pattern. In 1993 the percentage of the prison population
convicted of drug crimes was 16 percent; by the end of 2002 it was 23 percent.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

51

Facing a budget crisis at the beginning of her first term, newly-elected Gov. Kathleen
Sebelius asked the Kansas Department of Corrections (DOC) to absorb a $6.8
million budget cut in 2003. Prison programs were slashed by $2.7 million;
community corrections by $1 million; and community-based drug treatment
program capacity was reduced by 75 percent.
The Kansas Sentencing Commission sponsored a public opinion survey on the heels
of these drastic cuts to gauge public attitudes about drug policy options. They found
that the vast majority of Kansans (more than 85 percent) believed that drug users
could and should be given a chance for rehabilitation. Seventy-two percent of state
residents favored treatment over prison for people convicted of drug possession.
Confident that the public would support change, commissioners proposed changes
in the state’s sentencing guidelines designed to divert people convicted of drug
possession from prison to a sentence involving mandatory treatment, and they
eliminated harsh sentencing enhancements for those with prior drug possession
convictions.
Managers at the DOC supported the commission’s drug diversion proposal, warning
that without the reform, the state would need to build an additional 508 prison beds
at a cost of $14 million for construction. Operating the expansion would add $7
million to annual prison operating costs. Legislators agreed to adopt Senate Bill 123,
which included both the diversion proposal and authorization of more than $5.7
million to expand community supervision and treatment program capacity.
SB 123 took effect in November 2003. In 2004 the prison population dropped for
the first time since the beginning of the decade. Since then, prison sentences for
people convicted of drug crimes have declined by 23 percent:

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

52

DRUG OFFENDERS SENTENCED TO PRISON
1,800

1,703

1,616

1,642

1,519

1,600
1,307
1,400
1,200
1,000
800
600
400
200
0
2004

2005

2006

2007

2008

Source: Kansas Sentencing Commission

Revocations to prison of people sentenced under SB 123 have also been reduced,
producing a steady increase in prison bed savings associated with the reform
(estimated at 405 in 2008).56 In addition to averting construction of new prison
beds, the reform has produced annual budget savings well above the costs for
supervision and treatment:

56

Kansas Sentencing Commission 2009 Report to the Legislature, online at

http://www.accesskansas.org/ksc/documents/2009 Report to the Legislature.pdf

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

53

SB 123 COST AND SAVINGS
$12,000,000

$10,000,000

$8,000,000

ESTIMATED SAVINGS

$6,000,000

SB123 COST

$4,000,000

$2,000,000

$0
2004

2005

2006

2007

2008

Source: Kansas Sentencing Commission

By the end of fiscal year 2008 the cumulative net budget savings from SB 123 were
estimated at nearly $7.5 million.57

Justice Reinvestment in Kansas
While prison sentences for people convicted of low level drug crimes continued to
decline, the prison population ticked up again in 2005. Prison population
projections indicated that absent policy reforms, the state would need almost 1,300
new prison beds within the next decade. Correctional managers responded in 2006
by embarking on an ambitious experiment with “justice reinvestment.” Seeking
technical assistance from the Council of State Governments (CSG), they identified
factors driving prison growth and set strategies in motion to address them.

57

Ibid.

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

54

The idea of justice reinvestment springs from a realization that mass incarceration
impacts many urban neighborhoods in ways that serve to perpetuate cycles of crime
and incarceration. Millions of dollars are spent each year to imprison large numbers
of people from impoverished urban neighborhoods. Yet the investment in prisons
provides relatively little in terms of public safety, when compared with the positive
benefits that might be gained by providing substance abuse treatment, housing,
education, and jobs in local communities. Justice reinvestment involves reducing
spending on prisons and investing a portion of the savings into infrastructure and
civic institutions located in high-risk neighborhoods.

Reducing Revocations to Prison
Analysis of Kansas prison data showed that two-thirds of people admitted to Kansas
prisons were being sent for failure under community supervision – probation and
parole – and that 90 percent of revocations involved technical rule violations, of
which about one-third were related to use of alcohol and drugs.58
In 2007 legislators created the Community Corrections Statewide Risk Reduction
Initiative (RRI). Funding for FY 2008, under Senate Bill 14 (SB14), included $4
million in new grants to local community corrections agencies. The funds were
available to any agency that pledged to reduce revocation rates by at least 20
percent.59
Kansas has 31 county-operated Intensive Supervision Probation (ISP) programs,
serving all 105 counties in the state. These agencies are required to aid people who
are identified as “medium and high risk” of failure under probation supervision. The

58

Council of State Governments. “Kansas: Implementing the Strategy.” Online at

http://www.justicereinvestment.org/states/kansas/how-ks/
59

Kansas Department of Corrections. Kansas Community Corrections Statewide Risk Reduction Initiative. Annual

Report, January 12, 2009. Online at http://www.doc.ks.gov/publications/the-senate-bill-14-risk-reductioninitiative/SB_14_Risk_Reduction_Initiative_Report_2009.pdf/

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

55

new services available under RRI are designed to refocus ISP supervision beyond the
traditional surveillance routine, to target criminogenic factors using evidence-based
community supervision methods and practices. New case management tools were
introduced and supervision agents were given training in risk assessment and release
planning, motivational interviewing, cognitive behavioral interventions and
workforce development strategies. ISP agents must seek approval from their
supervisors before seeking revocations for technical violations.
The effort is bearing fruit. While just 46 percent of people whose cases were closed
in FY 2006 successfully completed probation, the proportion increased to 61 percent
in FY 2008. Revocations for technical violations have fallen steadily since 2006,
more than meeting the goal set for reduction statewide:

TECHNICAL PROBATION VIOLATORS SENT TO PRISON
2,500
2,031
2,000
1,709
1,552

1,743
1,615

1,394

1,500

1,783

1,454

1,500

2002

2003

1,456

1,294

1,000

500

0
1999

2000

Source: Kansas DOC

2001

2004

2005

2006

2007

2008

2009

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

56

DOC data indicate that two-thirds of the Kansas community corrections agencies
exceeded the 20 percent reduction goal, while 20 percent achieved a level of
reduction that fell short. Four agencies showed a small increase in revocations. 60
Correctional managers have been working since the beginning of the decade to
reduce the number of people returned to Kansas prisons for a parole violation. This
effort has cut revocations by almost two thirds:

TECHNICAL PAROLE VIOLATORS RETURNED TO PRISON
3,500

3,178

3,000
2,654
2,500

2,441

2,347

2,430

2,293
2,138

2,000
1,641
1,500

1,234

1,267

1,154

2007

2008

2009

1,000
500
0
1999

2000

2001

2002

2003

2004

2005

2006

Source: Kansas DOC

Reentry Initiatives
State officials set ambitious goals for reducing revocations for people under
community supervision, but they also realized that lasting reductions in recidivism
would depend on neighborhood revitalization, and on the provision of substance

60

Kansas Department of Corrections. Kansas Community Corrections Statewide Risk Reduction Initiative. Annual

Report. (January 12, 2009)

DOWNSCALING PRISONS | LESSONS FROM FOUR STATES

57

abuse, mental health, employment, and housing services in the communities where
people return to from prison.
As policy makers turned their attention to conditions in local communities, the
Justice Mapping Center created maps that helped to illustrate the problems in “high
stakes” neighborhoods. Wichita’s Council District 1, with the highest incarceration
rate in Kansas, accounted for $11.4 million in spending for its prison commitments
over the course of a single year. People returned to prison for failure under probation
and parole supervision added another $5.5 million in prison costs. People from
District 1 used more than twice the number of prison beds as any other Wichita
council district.61

61

Michael Thompson, Tony Fabelo and Eric Cadora, “Building Community Capacity to Reduce Crime and Save

Prison Space” (Council of State Governments PowerPoint presentation to the Wichita Summit, April 18, 2005).

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58

Source: Justice Mapping Center

A new Reentry Program was established in Wichita in March 2006, and a reentry
specialist has been based there to develop access to affordable housing under a DOC
collaboration with the state Housing Resources Commission and the Department of
Social and Rehabilitation Services.62 State officials are working with staff at local
government agencies to plan for neighborhood revitalization. A community advisory
committee has been formed that brings members of the state legislature together with

62

Kansas Department of Corrections 2009 Annual Report, online at http://www.doc.ks.gov/publications/2009 Annual

Report KDOC.pdf

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59

members of the city council and representatives of the local housing and police
departments, along with people from the faith community.
Nearly a third of the people returning to District 1 from prison are homeless, or lack
appropriate housing options. The advisory committee is working on development
and implementation of a neighborhood-based housing development project in
District 1 that will target a neighborhood with hundreds of abandoned, boarded-up
houses and blighted properties. Leaders of several banks, hospitals, private
foundations, schools, and universities joined government officials in Wichita to
announce commencement of the “New Communities Initiative.”
Kansas Corrections Secretary Roger Werholtz has championed the justice
reinvestment concept, and he reports that the effort to reduce revocations and
recidivism is working well. The number of parolees being returned to prison
dropped by half from 203 a month in 2003 to just 100 a month in 2007, and the
number convicted of a new felony dropped by almost half.63 Probation violations
have also been reduced. In fiscal year 2006, 54 percent of people on probation were
sent to prison. By 2008 that figure had dropped to 39 percent.64
A combination of new sentencing standards and parole policy reforms have helped to
avert costly prison expansion that otherwise might have resulted from prison
population pressures. In 2008, corrections managers were able to close a women’s
camp, saving $480,000.65 In 2009 the DOC took 447 minimum security prison
beds offline.66 The state has ample room in its prison system to handle the current
prison population, and the Kansas Sentencing Commission estimates that the prison
system will have excess capacity until fiscal year 2016.67

63

Ash, Lucy. “Kansas rethinks its prison policies.” BBC News, February 4, 2009.

64

Associated Press. “Prisons official: Cuts undo progress.” Wichita Eagle, March 3, 2009.

65

Manning, Carl. “2 prison units to close earlier than planned.” Fort Mill Times, January 23, 2009.

66

Hanna, John. “Kansas prisons chief: Budget cuts may shorten sentences.” Kansas City Star, August 24, 2009.

67

Kansas DOC 2009 Annual Report.

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CONCLUSION
The experience of the four states profiled in this report demonstrates that controlling
prison growth is not an intractable problem. Over a period of years policymakers
and practitioners have come together to assess the sources of growth in incarceration
and developed policy responses that have reversed those trends while promoting
public safety.
Initial indications are that these trends may continue in these states and others. In
January 2010, New Jersey Governor Corzine signed into law a measure removing the
mandatory penalties for school zone drug offenses, thus restoring discretion to
sentencing judges to consider the circumstances of each case. The school zone
penalties had imposed unduly harsh sentences in many cases, as well as exacerbated
racial disparities in incarceration. In Michigan, the legislature is considering a bill
that would restore the practice of awarding “good time” credits in prison that were
eliminated in 1998 through adoption of the state’s “truth in sentencing” law. And at
the national level there has been a great deal of interest in legislation proposed by
Virginia Sen. Jim Webb that would establish a national commission to examine the
prison system and the policies that have contributed to its vast expansion.
Encouraging as these developments are, we should not lose sight of the scale of
incarceration and the degree to which current policies have become institutionalized
in many states. A steady decline in crime rates in all four states during the period of
“descaling” demonstrates that reducing reliance on incarceration does not diminish
public safety. But the record on cost savings is less positive. Overall prison
expenditures in New York increased markedly over a decade of prison population
reductions. Many thousands of beds remained empty in upstate prisons, but
correctional managers were not able to close any prisons until 2009, when a dramatic
decrease in state revenues finally trumped the political pressures to preserve prison
jobs.

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61

Across the nation, most states still employ a range of mandatory sentencing policies,
make near-record numbers of drug arrests, and have in place a series of policies that
have extended the length of time that persons spend in prison. These policies and
practices run counter to the findings of a substantial body of research that documents
the diminishing impact on public safety of large-scale incarceration and its negative
consequences for community stability.
The renewed interest in evidence-based programming, along with the harsh realities
of the fiscal crisis, offers an opportunity to take a broad look at the use of
incarceration and the prospects for reducing its scale in ways that better promote
public safety. The public would be well served by a new strategy that gets beyond
political rhetoric and promotes policies that better serve our communities.

FURTHER READING at www.sentencingproject.org:
Incarceration and Crime: A Complex Relationship
Lessons of the “Get Tough” Movement in the United States
The Hidden Problem of Time Served in Prison
No Exit: The Expanding Use of Life Sentences

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