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5 Sentencing Policies and Their Impact on Prison Populations One of the important consequences of changes in sentencing policies is their impact on prison populations. This issue is especially important at a time when prisons are increasingly crowded. However, both short- term and longer-term perspectives on prison populations must be con- sidered in policy making, since population projections suggest a decrease in the number of prisoners by the end of the 1980s in a number of states. The size of the prison population is shaped by the number of offenders committed, the length of their sentences, and the time they actually serve. These, in turn, may be affected by demographic changes in the population, changes in demographic-specific crime rates, legislatively established sentencing policies, police and prosecutorial policies, judicial decision-making practices, the exercise of authority by prison officials in awarding and revoking good time, and parole boards' release and revocation policies. The panel examined the relationship between sentencing policies and prison populations because anticipation of the impact on prison of ex- isting and alternative sentencing policies makes explicit the choices among levels of punitiveness and their costs and is an important aid to respon- sible policy making. In this chapter we examine recent changes in prison populations and the implications of these changes for the health and safety of inmates and correctional staff; the methods, uses, and limitations of projections of future prison populations for policy making; and alternative strategies for coping with prison populations that have grown beyond the capacities of existing prison facilities. 225
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226 RESEARCH ON SENTENCING THE SEARCH FOR REFORM CHANGES IN PRISON POPULATIONS AND THEIR IMPLICATIONS INCREASES IN PRISON POPULATIONS Except during World War II, American prison populations increased at about the same rate as the civilian population from 1930 until the early 1970s, when a dramatic increase began in the number of prisoners in- carcerated in federal and state prisons (see Figure 5-1~. The rate of incarceration in state and federal prisons rose 62 percent between 1972 and 1981: from 95 per 100,000 population to 154 per 100,000 popula- tion.i Between the end of 1972 and the end of 1978, the federal and state prisoner population sentenced for more than 1 year increased by about 50 percent, from 196,183 to 294,580 (U.S. Department of Justice, 1975, 1976, 1977, 1978b, 1979~. Since then, sentenced state and federal prisoner populations have continued to rise to 352,476 at the end of 1981, another 19 percent in 3 years (U.S. Department of Justice, 1982a). The sharpest inmate increases occurred in state prisons, which hold about 60 percent of all offenders. Between 1972 and 1981, net state prison populations increased by 89 percent, from 174,470 to 330,307 inmates. Between 1939 and 1970 the median state prison incarceration rate was 98.8 per 100,000 civilian population; in 1972 this rate had fallen to 84, but by 1978 it had risen to 124, an increase of 48 percent in 6 years; by December 31, 1981, it had climbed to 144, a further increase of 16 percent in 3 years (U.S. Department of Justice, 1982a). Increases in state prison population were most pronounced in the South. For decades the rate of incarceration in the South was higher than in other regions, and the gap grew during the 1970s. Between 1970 and 1978 state prison populations grew by 84.1 percent in the South, while they increased by 41 and 44 percent, respectively, in the North and North Central states, and by only 8.6 percent in the West (see Table 5-14. In 1970, the South accounted for 39 percent of all state prisoners; by 1978, that number was 48 percent. The greater increases in the South far outpaced population increases there: the incarceration rate increased 63 percent in the South and only 43 percent for the nation as a whole. Though federal prisoners make up only 6 percent of the national prisoner total, recent changes in federal prison populations illustrate the ~ Rates of incarceration are computed as the ratio of inmates in a jurisdiction for every 100,000 civilian population in that jurisdiction as estimated by the Bureau of the Census. State rates vary due both to different policies regarding incarceration and differences in accounting practices; for details, see Mullen and Smith (1980:11~.
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228 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM is 160 o ~ 1 40 cat 8 Of a in a: 1 00 z u' 80 60 1 \~/ 01 1920 1940 1950 1960 1970 1980 YEAR FIGURE 5-1 Annual imprisonment rate in the United States: 193~1981. SOURCES: Adapted from Blumstein and Cohen (1973:203), Carlson et al. (1980:114), and U.S. Department of Justice 2~1982a). impact of changes in prosecutorial policy on prison populations. Be- tween 1977 and 1980, federal prison populations dropped, principally due to a change in emphasis in the Justice Department that sharply reduced prosecution of auto theft and bank robbery cases and increased resources for prosecution of white-collar crime, major narcotics viola- tions, organized crime, and political corruption cases, all of which take longer to convict and result in shorter sentences. PRISON CAPACITY AND CONDITIONS OF CONFINEMENT The dramatic increases in prison population have not been accompanied by corresponding increases in prison capacity, resulting in overcrowding and a decline in living standards in prisons. The decline in prison pop-
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Impact on Prison Populations 229 ulations through most of the 1960s led to selective closing of facilities and a virtual halt in the construction of new prison facilities. When the downward trend was reversed and prison populations increased by more than one-third between 1972 and 1976, crowding became common, and the conditions in many older facilities became a cause for many legal actions. The greater activism of courts in addressing conditions of con- finement in prison as a constitutional issue and emerging professional standards and accreditation procedures2 have limited legally acceptable options in dealing with population pressures and created a critical prob- lem in many corrections systems. By March 1982, prison authorities in 28 states and the District of Columbia were operating under court orders arising from violations of the constitutional rights of prisoners related to the conditions of confinement or overcrowding, including sweeping orders covering entire correctional systems in 10 states. In addition, according to the American Civil Liberties Union.Foundation, legal chal- lenges to major prisons were pending in 9 other states (Criminal Justice Newsletter, 1982~. A congressionally mandated national study of prison inmates and facilities found that 61 percent of federal prisoners, 65 percent of state prisoners, and 68 percent of prisoners in local jails had less than 60 square feet of floor space, the minimum standard promulgated by the Commission on Accreditation for Corrections (Mullen et al., 1980:61, 75~. Because definitions of capacity vary widely, there is no single or clear estimate of the number of inmates that can be held in existing state and federal prisons, and the study used three different measures of capacity. Using the reported capacity measure, the study found that state and federal prisons had slightly more than sufficient capacity to hold all inmates confined in 1978 in state and federal prisons together (i.e., 96 percent of all space was used). By the measured capacity stand- ard- one inmate per cell of any size or, for dormitories, the smaller of (1) the number of square feet of floor space/60 or (2) the jurisdictionally reported capacity state and federal prisons were operating at 115 per- cent of capacity. By the most stringent physical capacity standard, de- 2 In 1974 the American Correctional Association established the Commission on Ac- creditation for Corrections to develop a set of uniform standards that would provide measurable criteria for assessing the safety and well-being of correctional system inmates and staff. It has published 10 volumes of standards, including Adult Correctional Insti- tutions and Adult Local Detention Facilities (Commission on Accreditation for Corrections, 1977a,b). Other standard-setting efforts include the American Bar Association's Tentative Draft of Standards Relating to the Legal Status of Prisoners (1977) and the Federal Standards for Corrections drafted by the U.S. Department of Justice (1978a).
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230 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM fined as a minimum of 60 square feet of floor space per inmate, prisons were operating at 171 percent of capacity (Mullen et al., 1980:65~. An additional indicator of crowded conditions in state prison facilities is the extent to which state prisoners are housed in local facilities. According to the Bureau of Justice Statistics, 6,497 inmates (2.1 percent of the total) were housed in local jails at the end of 1979, including 39.4 percent of Mississippi's state prisoners and 24.6 percent of Alabama's (U.S. Department of Justice, 1981c: 154. Relief from population pressures through expansion of prison and jail facilities is not anticipated. In its survey of facility construction, reno- vation, acquisition, and closing plans between March 31, 1978, and December 31, 1982, an Abt survey found jurisdictions planning a total increase of 52,843 beds or an overall increase of about 24 percent in net additional capacity (Mullen and Smith, 1980:80~. But these increases are in rated capacity, not in the measured capacity standard of 60 square feet (suggesting the possibility of capacity increases achieved by changing definitions, greater use of double-celling, and a decline in living stan- dards). They also include intended expansions for which appropriations had not yet been authorized by state legislatures and so they may be inflated.3 The increase of 48,651 state and federal prisoners between year-end 1977 and mid-year 1981 (U.S. Department of Justice, 1981b) and the time lag between planning, appropriation, and construction of a facility suggest that facility expansion is not keeping pace with ex- panding populations, that prison crowding is increasing, and that short- term approaches to correctional population pressures are badly needed now. The dramatic increases in prison populations, as well as changes in sentencing policies, raise two major questions for institutional manage- ment: What is the general effect of crowded prison conditions on inmate health and behavior and on institutional management? What is the effect of determinate sentences on institutional programs, offender miscon- duct, and disciplinary procedures? Inmate Health and Behavior It is widely believed among prison administrators and researchers that crowding has adverse affects on inmate health and behavior and, by 3 Another survey of prison construction plans completed in May 1981 (National Mor- atorium on Prison Construction, 1981) found that, although states "planned" to expand by a total of 102,350 beds, if "planned construction" is defined as a facility that has been approved by a legislative body or been included in a governor's budget, only 25,316 additional beds were authorized or under construction.
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Impact on Prison Populations 231 increasing tension and aggression, may contribute to inmate violence and prison riots. But systematic research on these subjects is recent and limited. Cumulation of knowledge has been hindered by variation in the definitions and measures of crowding and density and their behav- ioral, physical, and attitudinal outcomes, resulting in noncomparable findings. The initial research on crowding involved studies that documented its deleterious effects on animal health and behavior.4 Studies of the re- lationship between population density and human behavior have yielded more ambiguous results than the animal research. Correlational studies of the incidence of social pathology in communities and households differing in population density have been a primary source of empirical conclusions about the effects of crowding (see Bordua, 1958; Galle et al., 1972; Schmid, 1960; Schmitt, 1957; Shaw and McKay, 19424. But these ecological approaches must be viewed with great caution because of the danger of making inferences about individuals from aggregate data, particularly where findings may be confounded by high correlations of deleterious factors like economic and educational deprivation with density. Observational studies of hospital patients and of children in groups of varying size have yielded inconsistent results (see Hutt and Valzey, 1966; Ittelson et al., 1972; Loo, 1972; McGrew, 1970~. Individuals con- sistently interacted less in larger groups, but Loo reported less aggression in the denser situation, while Hutt and Vaizey found more. Sample surveys have found positive correlations between persons per room or perceptions of the household as crowded and disrupted inter- personal relationships within the home (Baldassare, 1978; Mitchell, 1971), stress diseases (Booth and Cowell, 1976), and poor mental health (Gove et al., 1979~. Again the correlation of density with other potentially deleterious factors may confound the findings. In addition to these general studies of crowding, several studies have examined the effects of crowding and high density in prisons. (Although the terms "density" and "crowding" sometimes are used interchange- ably, "density" refers to a physical condition and "crowding" to a sub- jective reaction to that condition. Further, there is a distinction between social density, the number of occupants per living unit, and physical 4 Conditions of high density were found to impair fertility and reproduction in mice (Christian, 1960~; to disrupt maternal ties, lead to homosexuality, and produce social withdrawal in rats (Calhoun, 1966a,b); and to cause increased aggression and emotionality, prostration, convulsions, and death in several mammalian species (Ader et al., 1963; Barnett et al., 1960; Bullough, 1952; Calhoun, 1956, 1962; Christian, 1960; Keeley, 1962; Rosen, 1961; Turner, 1961~.
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232 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM density, the number of square feet per individual.) Studies of the effects of social density have found that inmates living in open dormitories feel more crowded, rate their environments more negatively, have higher rates of illness complaints, and feel greater psychological stress than inmates living in single or double occupant rooms (Cox et al., 1979, 1980; Paulus et al., 1975~. Some of the negative effects were reduced through use of dividers in dormitories, permitting an increase in privacy without an increase in space (McCain et al., 1980~. McCain et al. (1976) also found that increased physical density led to progressive and mea- surable increases in negative effects on inmates, including higher rates of illness complaints, perceived crowding, mood states, rating of the environment, perception of choice and control, and nonaggressive dis- ciplinary infractions. Increased social density was a more important contributor to the physical and psychological effects than increased phys- ical density. The disciplinary data were obtained in only one institution, however, and only nonaggressive infractions were considered. Some studies of the effects of crowding-related stress in prison, as measured by blood pressure, find that inmates in open dormitories have higher blood pressure than those in single cells, that increased social density in dormitories increases blood pressure (D'Atri, 1975; Paulus et al., 1978; Ray, 1978), and that transfers from single occupancy cells to multiple occupancy dormitories cause increases in blood pressure (D'Atri et al., 1981~. However, McCain et al. (1980) found no density- related blood pressure effects. Nacci et al. (1977) report that the federal correctional institutions that were most overcrowded relative to rated capacity, particularly those that had a large number of young offenders, had the highest disciplinary infraction rates. Similar results are reported by Megargee (1977) where the amount of living space available and the density were significantly associated with both the number and rate of disciplinary violations. However, Megargee found that the rate at which disciplinary reports (not distinguished by level of seriousness) were given over a 36-month period was not significantly related to the overall population in the institution, but he looked only at medium-sized institutions that varied within a narrow range (45~550 inmates). A third study (McCain et al., 1980) found both sheer population size and increased density in prisons associated with negative effects, including disproportionate increases in rates of disciplinary infractions, violent death, suicide, and death of inmates more than 50 years old. In sum, research is just beginning to sort out the complex and often overlapping effects of social and physical density, crowding, and insti- tutional size on inmate perceptions, morale, health, and behavior. A
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Impact on Prison Populations variety ot negative effects have been hypothesized to result from sus- tained high-density living conditions, particularly in large institutions. The evidence, however, is still fragmentary due to methodological short- comings, divergent measures, and correlations that may result from uncontrolled confounding variables like prison age and condition, se- curity level of the institution, and the amount of time prisoners are confined to cells. It is very difficult to separate the individual physical, psychological, and behavioral effects of crowding from the effects of the many other undesirable aspects and deprivations of a prison^environ- ment. In order to provide a comprehensive interpretation of the variety of crowding effects on inmates, future research on crowding effects should look across institutions; introduce richer controls for other attributes of these institutions; examine variations in the effects of crowding over time, including long-term effects (more than 3 years); compare housing types explore individual and group differences in reaction to high-density living arrangements; and develop a wider variety of measures of be- havioral effects to supplement attitudinal measures. 233 Determinate Sentencing and Institutional Programs Under indeterminate sentencing policies, corrections institutions de- veloped a broad range of rehabilitation programs, including vocational, educational, and social skills development; individual and group ther- apy; and partial physical custody (i.e., work release and placement in halfway houses). Some expected that the shift to determinate sentencing policies would result in a reallocation of institutional resources from rehabilitation programs to custodial uses, a drop in program partici- pation as inmates no longer felt coerced in such programs, and greater motivation from those inmates who continued to participate voluntarily. To date, only two preliminary studies have been completed on the effects of determinate sentencing on institutional programs in three ju- risdictions; both studies have serious limitations. Brady (1981) examined the impact of determinate sentencing in Oregon and California on prison programs and inmate attitudes toward them. His interviews with ad- ministrators, custodial and program staff, and inmates indicated that participation in programs in both states continued at about the same level as before determinate sentencing, but that many staff members sensed some change in inmate behavior and attitudes toward partici- pation: many inmates were more negative; a few were more motivated. The contribution of California's Uniform Determinate Sentencing Law (DSL) to these attitudinal changes is unclear; what is clear to prison
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234 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM staff is that "rehabilitation and programs have less general appeal ito inmates] than perhaps five years ago" (Brady, 1981:9~. California's in- stitutional programs have continued, but a clear shift in goals and policies has occurred due to both disciplinary problems in institutions and DSL. Prisoners are being reclassified according to their background and "prior incarceration behavior" rather than their amenability to rehabilitation. While the programs themselves have not been altered, internal security dominates the prison atmosphere and staff view prisoners as less co- operative than they were prior to implementation of DSL. Brady's findings must be viewed as preliminary. There are no com- parative data on pre-DSL and post-DSL levels of participation, and other changes occurred simultaneously with implementation of the new law, including more crowding and an increasingly youthful and violent inmate population. Stone-Meierhoefer and Hoffman (1980) examined the effects on pro- gram participation of setting presumptive parole release dates within 120 days of admission to prison. Comparing program participation by an experimental group (randomly assigned prisoners given presumptive parole release dates) and a control group (prisoners considered for pa- role after serving one-third of their sentence), they found that experi- mental group members enrolled in somewhat fewer programs, partic- ularly education programs, than control group members and appeared to drop out of a slightly higher percentage of the programs in which they enrolled. No significant difference was found between the groups in the number of persons enrolling in at least one type of educational or work program, but experimental group members joined significantly fewer programs than did those in the control group. The authors at- tribute this difference to the fixed parole date that obviates the need for program participation in order to impress the parole board. The generalizability of these findings is limited. Staff and prisoners were aware that the experiment was part of a pilot study of the U.S. Parole Commission's new parole guidelines. The guidelines had already been implemented, so all inmates already could predict their parole dates, thereby reducing parole-related incentives for program partici- pation for both experimental and control groups. Inmate Misconduct, Disciplinary Procedures, and Determinate Sentencing Determinate sentencing was also expected to affect disciplinary prob- lems and procedures in prisons (Goodstein, 1980; Morris, 1974; von Hirsch, 1976~. Supporters of determinacy reasoned that uncertainty about
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Impact on Prison Populations 235 the length of time to be served caused anxieties, tensions, and frustra- tions among inmates that contributed to more institutional misbehavior and interpersonal violence (Bennett, 1976; Park, 1976~. Conversely, critics of this viewpoint suggested that determinacy would increase dis- ciplinary problems by removing the threat of longer imprisonment. Three studies have produced data on the effects of determinacy on prison discipline (Forst, 1981; Goodstein, 1981; Stone-Meierhoefer and Hoffman, 1980~. Their methodologies, research questions, and findings vary and provide at best preliminary and suggestive obervations rather than reliable conclusions. Stone-Meierhoefer and Hoffman (1980) found that granting pre- sumptive parole dates did not appear to adversely affect discipline within federal prisons. Comparisons of experimental and control groups (as described above) indicated no significant differences in the proportion of inmates committing disciplinary infractions, the total number of in- fractions, or the number of inmates committing major infractions (after controlling for months of exposure). However, because federal prisoners differ in both offense type and background from state prisoners and the sample pool underrepresented long-term prisoners arguably those with little incentive to conform—the disciplinary impact of a fixed parole date may have been underestimated. ~ Goodstein (1981) used a quasi-experimental design to compare pris- oners with determinate and indeterminate sentences in three South Car- olina prisons on a number of attitudinal and behavioral measures.5 Con- trolling for differences in sentence length (because those with indeterminate sentences had committed different offenses and had longer terms), Goodstein found no difference between the prisoner groups with respect to rate of institutional misconduct. She did find, however, that inmates with determinate sentences reported experiencing significantly less stress than did those with indeterminate terms. Forst (1981) examined the impact of determinate sentencing on inmate misconduct and institutional discipline in Oregon and California. His interview and observational data indicate that determinacy has not been the answer to prison unrest that its supporters had hoped, nor has knowledge of a fixed release date led directly to increases in misconduct ~ In South Carolina, judges have the discretion of sentencing offenders to terms with fixed release dates (via a "split sentence" requiring that an offender serve a specified portion of the total sentence in prison) or to long maximum terms with the expectation of earlier parole release. Since the criminal code makes all inmates eligible for parole after serving one-third of their maximum sentences, it is possible for an offender with a split sentence to be released from prison at a fixed date prior to his parole eligibility date.
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248 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM and local governments steadily increased between 1971 and 1977; the $2.46 billion spent in 1977 represented an increase of 45 percent over the 1971 figure after adjustment for inflation. It has been estimated that these expenditures would increase an additional 1~17 percent by 1982 (Mullen and Smith, 1980: 134~. Capital outlays for correctional institutions (including juvenile deten- tion facilities for state and local governments) in 1977 amounted to $415 million (only a small fraction of which was spent on equipment). Esti- mating future prison construction costs is difficult, however, due to wide variations in estimated costs depending on institutional size, region, and security level (see Singer and Wright, 1976~. The National Council on Crime and Delinquency (1977:7) estimated that construction costs per new bed range from $25,000 to $50,000; according to the Federal Bureau of Prisons, a new 500-bed facility would cost about $35,000 per new bed (U.S. General Accounting Office, 1978:13~. Financial costs are only one consideration in the complex decision regarding construction of new prison facilities, but the millions of dollars for each new prison that might be spent on other government services and facilities, particularly in a time of fiscal austerity, appear to have been a major inhibitor of prison capacity expansion. In the past few years, voters in several states, including New York and Michigan, have rejected bond issues to finance prison construction. Several studies have attempted to develop and test general hypotheses about why particular states build new prisons. Given the range of factors that might affect the construction decision, these analyses have been rather simplistic, and, thus far, the models have not fit the evidence very well. Nonetheless, a consideration of their shortcomings may be Instructive. One approach, termed the "population model," suggests that the supply of prison housing is expanded in direct response to increased demand in the form of prison population increases. However, neither recent national prisoner statistics nor a preliminary test of the correlation between measures of prison population growth between 1975 and 1981 and estimates of planned net capacity increase from 1978 through 1982 for the 50 states (Benson and Silberstein, 1983) support this model without the addition of other factors that mediate the population-con- struction relationship. An alternative "capacity model," suggested by William Nagel (1973), postulates that prison construction is itself a stimulus to prison popu- lation expansion. In this model, expanded prison capacity affects sen- tencing decisions, resulting in more prisoners to fill that capacity, re- newed population pressures, and further construction.
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Impact on Prison Populations 249 Carlson et al. (1980) sought to test both the capacity and population models and to clarify the relationship between capacity and population. They found no relationship between current capacity and present pop- ulation, i.e., construction does not appear to be significantly stimulated by existing or past prison population pressure. However, they report a significant and substantial relationship between past capacity change and future populations with a 2-year lag and concluded that (Carlson et al., 1980:56~: On the average . . . additions are filled to rated capacity by the second year after opening additional space; within five years the occupancy of the new space averages 130 percent of rated capacity. Because the finding that prison capacity generates the population to fill it has been widely cited by the press and accorded importance by policy makers, the panel believed it important to assess the validity of the finding.~3 The independent review of the data indicates that the empirical evidence cited in the Carlson et al. study provides no valid support for the capacity model (Blumstein et al., 1983~. Errors in the study include an excessively simplistic formulation of the problem and associated statistical model; failure to test the sensitivity of the computed results to undue influence by several extreme data points; a serious computational error in calculating the univariate estimates of the coef- ficients; a highly questionable assumption that there were no changes in prison capacity in years when no new facilities were opened; inade- quate correction for errors associated with serial correlation in a model including lagged dependent variables; and failure to analyze the aggre- gate data at a state level to discern whether the conclusions were re- flected in individual states. While the results of the reanalysis do not demonstrate that there is no causal relationship between prison capacity and prison population indeed, anecdotal evidence supports such a relationshi~it is clear that the relationship is complex, that the construction decision rests on a number of factors that stimulate or discourage building, that conditions vary greatly from state to state, and that further research is needed to explain the prison construction-prison population relationship. If prison i3 The replication was made possible by Carlson, who generously made the data tape available to the panel. It was initiated by Alfred Blumstein and carried out at Carnegie- Mellon University, and the findings are available in Blumstein et al. (1983~. The data tape contained reported prison population and reported increases in prison capacity for each of the 50 states and the District of Columbia for each year from 1955 to 1976 (1,122 cases) plus one observation from 1954 and four from 1977, for a total of 1,127 cases.
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250 RESEARCH ON SENTENCING THE SEARCH FOR REFORM population forecasts are correct, populations in a number of states should decline in the l990s without policy changes. This likely situation provides an opportunity to test the capacity model directly to determine whether and under what circumstances the availability of "spare" capacity affects the threshhold for selecting offenders to be incarcerated in order to fill the space. ALTERNATIVES TO INCARCERATION The effort to develop alternatives to incarceration and community-based corrections programs was stimulated by the President's Commission on Law Enforcement and the Administration of Justice (1967), which called for the integration of offenders into the community rather than their removal from it. In the early 1970s, when prisons in most states were not under population pressure, a variety of alternative programs were initiated to alter traditional case processing by prosecutors, provide alternative sanctions to prison and jail confinement, reduce the use of secure confinement facilities, and provide alternatives to continual con- finement in state prisons. The initiatives included pretrial diversion, restitution and community service programs at all stages of the criminal justice process, increased use of probation and intensive community supervision, development of halfway houses, early release programs, and statewide community corrections legislation. As prison populations mushroomed between 1972 and 1978 and per- sistent evidence indicated the unproductive effect of rehabilitation pro- grams in prisons, many groups pressed for greater use of community- based sanctions instead of incarceration for nondangerous offenders. While some advocated these programs as a way of reducing prison populations, others regarded alternative sanctions as more punitive al- ternatives to simple probation and fines and as a way of providing supervision and control of those offenders who were released into the community. From the perspective of the pressure of growing prison populations, our concern is the extent to which the proliferation of alternative sanc- tions actually displaced or reduced incarceration. Little of the existing research has been designed to answer this question. What limited evi- dence there is, however, suggests that alternative sanctions have more frequently increased the level of nonincarcerative punishment for those offenders who otherwise would not have been incarcerated than they have served as an alternative sanction for those who otherwise would have been incarcerated. Rather than reducing the use of incarceration for certain types of offenders, alternative programs have extended the
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Impact on Prison Populations 251 level and scope of formal mechanisms of social control exercised by the criminal justice system (Austin and Krisberg, 19824. For example, many persons who previously would have had their cases dismissed or been given a nominal sanction are now subject to greater supervision by the state through use of pretrial diversion programs. And restitution and community service sentences often have been added to probation or incarcerative sentences, compounding the amount and duration of pun- ishment received by minor offenders. Indeed, it appears that most res- titution and community service programs were established to serve as supplements to probation and parole supervision or fines imposed on minor offenders (Austin and Krisberg, 1982~. Those programs delib- erately designed to reduce incarceration do not appear to have been effective in doing so (Flowers, 1977; Schneider and Schneider, 1979; Pease et al., 1977~. Postincarcerative release options such as work release, work furlough, halfway houses, and prerelease facilities have been designed to permit incarcerated offenders to move to lower-security facilities or to com- munity supervision several months prior to parole or conditional release. One study that examined the impact of community-based correctional programs on prison populations (Hylton, 1980) found that prison pop- ulations increased significantly between 1962 and 1979 in Saskatchewan, Canada, despite the introduction of community corrections programs. Hylton's failure to control for or examine increases in crime and police arrests and their potential effect on prison populations weakens confi- dence in his conclusion that community corrections programs had little effect. Bass's (1975) study of California's work furlough program re- ported that it experienced high rates of violations and technical escapes and, consequently, resulted in increasing the rate and length of incar- ceration for many violators. Although postrelease alternatives have re- moved incarcerated offenders from prisons earlier than they might other- wise have been released, the empty beds have been filled quickly by new admissions from the ample pool of convicted offenders eligible for incarceration. Four states (California, Colorado, Minnesota, and Oregon) have adopted community corrections acts intended to encourage communities to treat offenders locally rather than send them to state prisons by providing financial subsidies for local programs. Because the Colorado and Oregon laws are relatively recent (1976 and 1978, respectively), impact data are limited. Studies of the California probation subsidy program initiated in 1965 suggest that, although it succeeded in shifting responsibility for offenders formerly destined for state facilities to local jurisdictions, it increased the rate of incarceration at the local level and
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252 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM the proportion of persons under some type of criminal justice system supervision (Lemert and Dill, 1978; Lerman, 1975; Miller, 1980~. A recent evaluation of Minnesota's Community Corrections Act (CCA) (Strathman et al., 1981) suggests that CCA-supported programs were being used to augment local sentencing options, previously limited to jail and probation but were having negligible impact on state prison populations. Unfortunately, the CCA evaluation was oriented toward assessing outcomes with little attention to illuminating the processes underlying them. Neither the question of why the financial incentive to handle offenders locally (on which the act was premised) was less ef- fective than had been expected nor the impact of other changes in sentencing policy that occurred at the same time (including the adoption of parole guidelines) was addressed in the report. The finding that alternative sanctions have not served as alternatives to incarceration is disappointing to those who sought to reduce impris- onment rates, but it is hardly surprising. Austin and Kr~sberg (1982) suggest that programs designed as alternatives to incarceration, like many other "reforms," have failed due to a combination of circum- stances. These include the interests, values, and power of key decision makers and criminal justice system agencies that oppose reductions in incarceration (including police, prosecutors, judges, and corrections ad- ministrators); the limited economic and political clout of probation and parole agencies and private reform organizations that support wider use of alternatives to incarceration; the effectiveness of powerful agencies in reshaping innovations to serve their own interests, particularly through redefinition of the client population; public concern with "lenient" (i.e., nonincarcerative) sentences given to serious offenders; and the diverse and often conflicting objectives of supporters of alternative programs. MECHANISMS TO CONTROL INFLOW AND RELEASE OF PRISONERS A third approach to maintaining an equilibrium between the population and capacity of prisons and jails is to directly regulate the inflow and release of prisoners. Some state judges have taken prison crowding into consideration by refusing to send offenders to overcrowded institutions or sending them to jail to serve prison terms.~4 Others concerned with crowding (Blumstein and Kadane, forthcoming; Manson, 1981) have i4 For example, the chief justice of the Massachusetts Superior Court would not sentence offenders to the Massachusetts Correctional Institution at Concord due to overcrowding (WCVB-TV Editorial, March 14, 1975, cited in Mullen et al. [1980:1433~.
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Impact on Prison Populations 253 suggested more formal inflow control mechanisms such as allocating existing prison space to sentencing judges. The only state to have adopted an explicit limit on the inflow of offenders to state prisons (but not to jails) is Minnesota. The legislation creating the Sentencing Guidelines Commission required the commis- sion to "take into substantial consideration . . . correctional resources including but not limited to the capacities of local and state correctional facilities." The commission interpreted the law as a directive that the guidelines not generate prison populations that exceed the capacities of state institutions. The commission's prison population projection model permitted it to test various sentencing options, consider only those that did not increase populations beyond existing capacity, and finally adopt an imprisonment policy and sanction levels that would maintain prison populations at about 95 percent of existing capacity, assuming no change in crime rates or sentencing laws, for 5 years. The guidelines have been in effect since May 1980. Thus far, destabilizing policy changes have been limited: in 1980 the legislature increased the mandatory minimum sentence for possession and use of a firearm but has defeated several more drastic bills, and the commission has withstood pressures to in- crease sentence severity. As a result, Minnesota was one of the few states to reduce prison population in 1980 and in the first half of 1981 (U.S. Department of Justice, 1981b). Inflow mechanisms may be effective planning tools for allocating ex- isting space in prisons, but they cannot provide immediate relief when prison overcrowding occurs. To handle such situations, a variety of discretionary release controls are currently in use as population safety valves, the most important of which is parole. In many jurisdictions the sentencing judge maintains parole release authority over offenders sent to the local jail; when population pressures become severe, early release for jailed offenders is authorized. State parole boards have sometimes acted to control prison populations by adopting accelerated parole re- lease policies when crowding or administrative concerns require it; many continue to do so. For example, in 1961 the California legislature approved a program based on screening of inmates by base expectancy (parole prediction) scores combined with programs for more intensive parole supervision. By 1963 the Department of Corrections' research division had screened the entire prisoner population, a number of prisoners were referred for parole consideration earlier than originally scheduled, and some of these were released on parole by the Adult Authority. The Department of Corrections estimated that the program had reduced the prison popu- lation by more than 840 offenders and had saved at least $840,000. In
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254 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM the early and mid-1970s the California Adult Authority again lowered prison populations dramatically by informally changing its parole release strategy. Recently, the Mississippi legislature, in response to a court order, authorized "early parole" and "supervised earned release" (Mul- len and Smith, 1980:1234. Under a similar court order, Maryland's parole board authorized extended preparole furloughs of 6~90 days for non- violent offenders (Ney, 1980:8~. In Oregon in May 1980 the parole board, working closely with the Department of Corrections, modified the history risk component of the guidelines to make the earlier release of some inmates possible in December 1980 to comply with a court order directing the Department of Corrections to reduce prison crowding (Ar- thur D. Little, 1981~. Whatever the other shortcomings of parole boards, their ability to manage prison population size is a valuable feature at a time when the number of inmates exceeds prison capacity. A parole board's insulation from political pressure enables it to make necessary but unpopular early release decisions more quickly and unobtrusively than can a governor or legislature. As part of the movement to determinate sentencing, several states have abolished their parole authorities and have adopted fixed sen- tences; others have proposed such changes. Whatever the merits of these changes, they have curtailed the ability of a centralized release authority to use early release as a population management tool. Several states that had substantial recent increases in prison populations have found it necessary to adopt alternative means of early release, including emer- gency release powers acts, executive clemency, and increases in the rate at which good time is awarded. Michigan's Prison Overcrowding Emergency Powers Act of 1980 (Public Act 519) provides that, if the state's prison system is overcrowded for 30 consecutive days, the governor shall declare a prison overcrowding state of emergency. This declaration will reduce by 90 days the minimum sentences of all prisoners who have minimum terms. The result is an enlargement of the pool of prisoners eligible for parole by making in- mates eligible for parole release earlier than they otherwise would have been. The parole board then makes case-by-case release decisions. If the 90-day sentence reduction does not result in reduction of prison population to 95 percent of rated capacity within 90 days of the decla- ration of the state of emergency, minimum sentences will be reduced by another 90 days, increasing further the pool of prisoners eligible for parole. The governor must rescind the state of emergency once the population is reduced to 95 percent of rated capacity. The act was first
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Impact on Prison Populations 255 invoked in the summer of 1981, permitting a reduction in prison pop- ulation. Various forms of executive clemency date back to colonial times in the United States, but information on their historical or contemporary uses is limited.~5 Until the end of the nineteenth century, executive clemency was the only way to obtain early release from prison. With the adoption of indeterminate sentences, parole boards were created to regularize release procedures; nevertheless, states retained the executive clemency authority, as a safety valve for providing mercy and dealing with extraordinary circumstances and organizational problems (Bere- cochea, 1982~. Existing state clemency structures, eligibility criteria, and decision- making procedures vary widely. In 31 states the governor has sole au- thority to grant clemency; in 10 states authority rests entirely in the hands of a special board; and in 9 states the governor's authority is limited to granting clemency to applicants receiving affirmative rec- ommendations from a special board or advisory body (Stafford, 1977~. A recent study of the uses of sentence commutation the form of clemency that reduces a sentence and is most frequently used to grant early release for a prisoner found that regular commutations are granted very sparingly (Martin, 1982b). For example, in Illinois between 1977 and 1981, there were an average of 160 applications per year for com- mutation, with only an average of 9 granted per year. In Texas, which has very narrow grounds for commuting a sentence, there were an av- erage of 20 applications and 15 commutations annually during those years. And in New York, with a prison population of more than 25,000 inmates in 1981, a total of 102 sentences were commuted between 1977 and 1981; 50 of those were granted under a special commutation pro- cedure adopted to reduce sentences of offenders given mandatory min- imum sentences of more than 15 years under the Rockefeller drug laws after those laws were revised in 1979. Special commutations have been used by 5 states Georgia, Mary- land, Oklahoma, Utah, and Wyomin~to reduce prison populations by releasing large numbers of inmates, generally those imprisoned for is There are several types of clemency: pardons, which usually involve a recognition of guilt but the need to mitigate the penalty (or remove a civil disability); commutations, which substitute a less severe punishment for that originally imposed (often reducing a minimum sentence, thereby making the offender eligible for earlier supervised parole release); and reprieves, which postpone the execution of a sentence, particularly in capital cases.
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256 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM nonviolent offenses who are within 6 months of parole release. (Most other recipients of commutations have life or very long sentences.) In Utah between November 1981 and March 31, 1982, in response to a declaration of crowding by the director of the Division of Corrections, the Board of Pardons advanced the release dates of 93 inmates within 90 days of parole release. Maryland granted 543 "seasonal" commu- tations in 1978 and 297 in 1979 to inmates who had served at least one- half their sentences for nonviolent offenses and who were nearing parole eligibility. And in Georgia between July 1, 1980, and June 30, 1981, the parole board first released 2,436 inmates on special paroles and reprieves with conditional commutations and then released 2,001 more inmates up to 6 months early on special commutations without parole supervision (Martin, 1982b). A third, also limited, population control mechanism is use of good time. Prison authorities may affect the time served on a sentence by the grant, forfeiture, and restoration of statutory and meritorious good time. If today's nominal sentences were served without good-time reductions, prisons would be far more crowded than they are. But statutory good time is of limited value as a population control mechanism in many jurisdictions because it is automatically credited to prisoners at the be- ginning of their sentence and thereafter may only be taken away for a disciplinary infraction. Furthermore, its use as a mechanism for disci- plining inmates by adding time to be served back onto their sentences conflicts with the goal of reducing prison populations. For that reason, several state agencies, including the Illinois Department of Corrections, have taken steps to limit forfeiture of good time (Jacobs, 1982) and have given prison officials more flexibility in awarding meritorious good time. In Illinois, for example,, the Director of Corrections has wide power to reward a prisoner who performs meritorious service by granting up to 90 days additional good time. Although the effect of good-time provisions may not be realized immediately, and good time poses a greater risk of arbitrary application than uniformly applied emergency- power release provisions, it can reduce prison populations. Offender classification provides a fourth tool for addressing some of the problems of overcrowding. Increases in crowding have tended to undermine existing classification procedures by increasing the frequency of assignment on the basis of available space. This situation has resulted in a vicious circle of misclassification, which can retard offenders' prog- ress through the prison system, thereby leading to longer terms, con- tinued crowding problems, and classification errors. In Alabama, for example, the team involved in court-ordered classification of the entire prison system found that at least one-half of the inmates could be clas-
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Impact on Prison Populations 257 sifted for minimum or community custody although only 10 percent were so classified (Clements, 1982:75~. Solomon (1980) reports that two- thirds of prisoners classified as needing medium security in Tennessee required only minimum security. Crowding is worst in maximum security prisons. Here, due to overcrowding, jobs and other opportunities are reduced, offenders have less chance to demonstrate "progress" or ad- justment, and when they do not meet the criteria of demonstrating "improvement" their movement out of the system is slowed. Comprehensive classification criteria for management purposes, fol- lowing the principle of using the least restrictive alternative possible, should help break this vicious circle. Consistent application of such criteria should relieve crowding, particularly in maximum security in- stitutions and, by increasing opportunities for program participation and "normalization," should lead to swifter movement of inmates through the prison system. IMPACT OF ALTERNATIVE STRATEGIES In the face of crowded prisons, rising prison populations, court orders to reduce crowding and improve prison conditions, and determinate sentencing laws that limit system flexibility, policy makers in every state must develop their own strategies to maintain a balance between pop- ulation and capacity through a combination of construction to expand capacity, increased use of alternatives to incarceration, and systematic use of inflow and release control mechanisms. Research can facilitate decision making by systematically examining the implementation and effects of policies and programs in various jurisdictions and by projecting the effects of policy options under a variety of conditions. Every option has both short-term and long-term advantages and costs. Construction may be necessary to replace obsolete facilities or expand capacity in systems that have long-term expected increases in inmate populations. But prison construction is very costly, and these costs are compounded by steady increases in operating costs. Alternative policies may be more cost-effective ways of preventing crowding and avoiding the costs of new construction in jurisdictions with short-term population pressures but long-term expectations of decreased inmate populations. Because it takes about 5 years to complete construction of a new prison facility, expansion of capacity by new construction will not solve the immediate capacity needs of many jurisdictions and may have the long- term effect of increasing what is viewed as the "normal" size of the prison population.
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258 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM Nonincarcerative programs often are advertised as less costly and more humane than incarceration (see National Council on Crime and Delinquency, 1980; Thalheimer, 1978), but others (e.g., Greenberg, 1975; Strathman et al., 1981) have expressed doubt that alternative programs result in actual savings, more humane sanctions, and reduced recidivism, or even that they are functioning as alternatives to incar- ceration. Although alternative programs promise some relief for prison crowding and may be appropriate and less costly ways of dealing with some nonviolent offenders, institutional pressures for "success" and public resistance to community facilities suggest their continued use predominantly for offenders who are unlikely to be imprisoned, thus limiting their short-term ability to provide substantial relief for prison crowding. Prison population control mechanisms appear to offer the greatest opportunities for short-term relief from crowding. Explicit control of prisoner intake, while desirable, requires a high degree of political con- sensus, shared social attitudes toward crime control, and agreement on a decision rule or formula for determining who should be incarcerated; such consensus is not likely to prevail or be easily developed in many jurisdictions. Early release of large numbers of prisoners through ex- panded use of early parole release, executive clemency, or emergency powers acts—can be implemented quickly, is less costly than construc- tion or alternative programs (in the short run), is preferable to reliance on less visible ad hoc adaptive mechanisms that are likely to prevail otherwise, and is more flexible in emergency situations than intake controls. In a situation of sudden and severe overcrowding or an emer- gency such as a natural disaster, a prison release mechanism permits reduction of all terms or only those of certain types of offenders by a fixed amount of time to provide immediate relief to the corrections system, while intake controls cannot deal with prison populations after inmates are committed. Furthermore, if social attitudes or sentencing policies change, leading to different sentences for offenders whose of- fenses are similar but who are convicted several years apart, these dif- ferences can be addressed by a parole board or some other early release mechanism. In sum, the current state of knowledge is uncertain regarding the effects and effectiveness of various alternatives for dealing with ex- panding prison populations. What is clear, however, is that the link between sentencing policy and prison populations should be considered when developing new sentencing policies. To ensure such consideration, some formal means should be developed in each state.to provide regular projections of prison populations and assessments of the likely impact of proposed policy changes.
Representative terms from entire chapter: