Because the Texas legislature is in session a mere five months out of the year, serving as a Lone Star state representative is not the most time-consuming of jobs. It's hardly unusual, therefore, that Ray Allen, the Republican chairman of the House Corrections Committee, has a couple of careers on the side. When he's not serving the good people of Dallas County, Allen runs the Academy for Firearms Training, where Texans who want to apply for a concealed-carry handgun permit can go and receive the required instruction. He also, along with his chief of staff, heads a company called Service House Inc., whose sole client is the National Correctional Industries Association (NCIA). On the NCIA's dime, Allen lobbies Congress, the White House, the Department of Justice, and the Office of Management and Budget on the virtues of prison privatization. Oddly enough, this is actually legal.
All of which suggests that Ray Allen may not be the legislator one would expect to have written a law mandating that first-time low-level drug offenders get treatment instead of prison time. Nor would one expect that in Texas -- a state that carries out one-third of the executions performed in this country and has a museum dedicated to its prison system -- both houses of the Republican-controlled legislature would pass Allen's bill unanimously, or that the Republican governor would sign it into law. But in June, that's exactly what happened. As Allen put it to the San Antonio Express-News, "This is the first time I've agreed with liberal Democrats on anything."
One might also suspect that if such tender mercies are prevailing in Texas, there must be some sort of national trend, and in that one would be correct. Texas is far from alone in its reconsideration of the criminal-justice policies of the past 20-odd years. Last year, on Christmas Day, Michigan's outgoing governor, John Engler, signed three bills repealing the state's mandatory minimum drug laws, which had been the most punitive in the nation. Colorado has given judges discretion to put drug offenders on probation instead of sending them to prison, and states like Missouri and Delaware have reduced the sentences for drug offenses and low-level felonies. Arizona and Washington are channeling their savings in incarceration costs from reduced drug-offender sentences into treatment programs. Kansas is doing the same, except it's actually taking the money, $6.6 million, out of state general funds. Indiana has created a "forensic diversion" program that allows judges to send nonviolent offenders to treatment programs if mental illness or substance abuse is determined to have contributed to the crime. And in what could prove the most ambitious reform, Connecticut's legislature is debating a bill that would divert probation and parole violators away from prisons while investing the savings in infrastructure programs for neighborhoods with the highest crime rates.
Why the change of heart? It's not that "lock-'em-up" types have suddenly turned into kindhearted liberals. Rather, the state fiscal crisis has put an end to the prison boom. As this special section of The American Prospect recounts, the straits of the states have created some strange bedfellows -- and some rare opportunities. Reformers have termed the concept "justice reinvestment." A dollar diverted from prison construction, or from the expense of housing inmates serving ever-longer sentences, can actually bring about a net reduction in crime. Why? Because other approaches are not only much less expensive than incarceration; dollar for dollar, they actually work better.
In theory, society could reduce crime by locking up every first-time offender for life. But even the hardest of the hard-liners knows this approach is neither just nor fiscally possible. So strategies long commended by reformers are getting a second look.
On the front end, these approaches include diversion efforts into drug treatment, restitution and a promising concept that goes far beyond "community service," known as "compensatory justice," in which youthful offenders become part of a community process that includes the victims, and often neighbors, as well as their own families. David Reed, a Chicago-based expert on compensatory justice, tells of a young vandal arrested for throwing a rock through the window of a truck belonging to a construction contractor. The furious contractor reluctantly agreed to become part of the community-mediation process, under the Community Panels for Youth program organized by Northwestern University's Children and Family Justice Center. Eventually, the contractor hired the young offender, who, as far as we know, never committed another crime. All such programs may not have such storybook endings. But for young first-time offenders, they often promise better results than prison. Compensatory justice, an approach as old as the dispute-resolution systems of tribal and traditional societies, has new support from criminal-justice professionals and courts.
Post-incarceration, the new approach uses much more intensive programs to re-integrate ex-offenders into society. At the broadest level, the savings of criminal-justice dollars can be reprogrammed into other social investments -- in education and job training -- that give at-risk individuals a reason to pursue lives that do not include crime. Many conservatives, with their strong beliefs in the power of economic incentives, have become part of this reform coalition.
Standing against this wave of reforms, however, is one conspicuous holdout: the federal government. In September, Attorney General John Ashcroft ordered that, almost without exception, federal prosecutors were to go for the maximum sentence in all cases. Shortly prior, he had announced that he promised to keep tabs on any judges who hand down sentences lighter than those specified in the federal sentencing guidelines. But, as tempting a target as John Ashcroft always is, the recent federal get-tough impulse isn't just his doing. The tracking of lenient judges, for one, wasn't his idea; rather, it was mandated by an amendment tacked on to the Protect Act of 2003 (the bill creating the Amber Plan) by Florida congressional Republican Tom Feeney. Ditto for the demand that the U.S. Sentencing Commission revise its guidelines to limit judges' sentencing discretion. In other words, the Republican majority in Congress is at least an equal partner in Ashcroft's current campaign.
The split between state and federal policy has not gone unnoticed. In late September, a New York Times article addressed the nation's "somewhat contradictory national crime-fighting agenda." But how will these two divergent strategies affect each other? Will the federal government stamp out what may be the only positive legacy of the current state budget mess? It's hard to tell for sure, but many of the changes at the state level look more like durable policies than temporary fixes, and many of the officials who have implemented them express a stubborn resistance to the idea of letting themselves get led down the path toward yesterday's punitive policies.
However, the federal government can buck the states' trend because, quite simply, it doesn't have to play by the same rules. And federal revenues and mandates still constrain what states may do in their own criminal-justice reforms. Meanwhile, many reforms will fail, if they are done on the cheap, in the context of dire budget emergencies. It is cheaper -- and more cost-effective -- to run a good re-entry program than to keep an inmate incarcerated. But it is cheaper still to run no re-entry program at all, even though the real social costs are higher.
At roughly $25,000 per year per inmate, incarceration is expensive -- much more expensive than, say, drug treatment or "community corrections" alternatives like halfway houses or parole supervision. But as Michael Lawlor, a Democratic Connecticut state representative and co-chairman of the Connecticut General Assembly's Judiciary Committee, points out, "The federal government has a couple of luxuries: It can print money and it can pick the cases it wants. The states have to try everyone the cops arrest. At some point, [the federal government] will probably be overwhelmed and will have to rethink [its] policy." But, as he admits, that's not likely to happen very soon. Unlike nearly every state, the federal government doesn't have to balance its budget, and appropriations for the Federal Bureau of Prisons are a sliver compared with, say, Social Security or the military. In states, on the other hand, corrections usually ranks as a big-ticket item, just below health insurance and education.
State officials don't pretend that they're motivated by a newfound concern for the plight of the incarcerated. As a spokesman for Nebraska state Sen. and Judiciary Committee Chairman Kermit Brashear bluntly put it, "All this is absolutely due to the state fiscal crunch." James Austin, a criminologist at George Washington University's Institute on Crime, Justice and Corrections, sees things similarly. "I don't think there was much concern about this until the money started to be a problem for [the states]," he says. "There were a few little blips, I guess ... but it's always been a money issue more than an issue of, 'Are we doing the right thing for society?'" Unsurprisingly, then, the majority of the measures that states are exploring are administrative, and for every progressive parole policy there are several proposals along the lines of staff layoffs and farming inmates out to other states' systems. In many states, treatment programs are getting cut along with prison budgets, and in a few (including aforementioned states like Arizona and Texas), inmates are even being fed less.
The strictly fiscal explanation suggests that there's a very straightforward relationship between federal and state policy. In the words of New York City-based criminal-justice policy analyst Judy Green, it's "money, money, money, money." As she points out, "The drug war has been greatly fueled by federal initiatives that have provided states with money, and there are other initiatives that have affected state policy outside the drug issue." Perhaps the best-known example is the 1994 Crime Bill, which, among other measures, made $8 billion available to the states for prison construction -- but only if they adopted strict "truth-in-sentencing" requirements, namely more draconian sentences.
So the federal money has been a mixed blessing. The Crime Bill didn't, for example, give states any money to run the prisons they built. The result is what Daniel F. Wilhelm, director of the state sentencing and corrections program at the Manhattan-based Vera Institute of Justice, calls "the hangover effect of the money they got the last time around. You hear state legislators saying, 'We forgot that these facilities cost a lot to run, too.' So now you have prisons that are empty, are being mothballed." But closing them down is tricky, as prison-guard unions and -- in a sort of reverse NIMBY-ism -- surrounding communities that see the prisons as sources of income are unafraid to make their displeasure heard.
For years criminologists and economists have been pointing out the enormous costs of our hard-time policies. The authors of one RAND Corporation study looked at mandatory minimum sentences for cocaine-related crimes and calculated that focusing on treatment would reduce serious crimes "on the order of 15 times as much as the incarceration alternatives" per million dollars spent. And earlier this year, Steve Aos, of the Washington State Institute for Public Policy, released a widely discussed report concluding that taxpayers now spend more to incarcerate drug offenders than the value of the crimes that the incarceration prevents.
And indeed, those states that have moved toward less punitive sentencing have seen savings. In California -- where the passage three years ago of Proposition 36 was a harbinger of the popularity of treatment programs instead of incarceration for low-level drug crimes -- state officials estimate that they'll cut their prison population by nearly a quarter and save $250 million over the next three or four years. Texas looks to save an estimated $30 million over five years. Washington Department of Corrections Secretary Joseph Lehman estimates the changes in his state have saved $43 million in the current biennial budget, and, while Michigan officials have been stingy with their numbers, the Detroit Free Press estimates that the state will save $41 million this year alone.
It's no wonder that right now, in Wilhelm's words, the federal system, with its maximalist ethos, "stands as this lighthouse of what not to do. Everyone in the states agrees that they hate it." And in the end, while the current reconsideration is partly fiscal, it's more than that, too. As Reginald Wilkinson, director of Ohio's Department of Rehabilitation and Correction, puts it, "We're not looking to the [Justice Department] to bail us out of this problem -- which they aren't going to do -- and we're not going to them for advice." For the average nonviolent drug offender, that's probably a good thing. After all, 94 percent of felonies are adjudicated in state courts, and 90 percent of felons are held in local or state prisons.
The fact is, as Marc Mauer of The Sentencing Project puts it, the federal government is "very much out there even for mainstream people in the field. If you go to a conference and talk to corrections people and prosecutors, there are very few voices out there advocating dramatically stepped-up punishment policy. If the point is to get tough, we've already gotten very tough over the past several years." With crime rates down and polls showing voters less concerned with the issue, politicians are slightly less paranoid about getting the Willie Horton treatment. Lawlor, the Connecticut state representative, sees the states' sentencing reconsideration as "two parts fiscal crisis, one part criminal-justice policy. It's happening at the same time as there are a lot more people with a lot more enlightened view of criminal justice." In Lehman's view, "Budget policies become a lever, they force people to ask the question of whether we're spending our money right, and I think that's healthy." Former Michigan Gov. William G. Milliken, who signed the state's mandatory minimum sentences into law in 1978 and has spent the past six years campaigning against them, goes further. "I think, or I'd like to think, that not only are fiscal considerations affecting willingness of change, that there's also a sense of fairness of what is right and what is just, and a recognition that what we've done in the past isn't working," he says.
In this respect, the Ashcroft approach represents ideology overpowering facts on the ground. The states offer a potent counterweight. A generation ago, in the era of New York's Rockefeller laws and as recently as California's three-strikes law, the states were hard-liners and Washington was somewhat more enlightened. It is a double irony for an administration that professes to believe in federalism that supposedly conservative states driven by fiscal crisis are pursuing more progressive and effective policies that Washington opposes.