Permanent Lockdown

Missouri defense attorney Justin Carver has seen it a million times. One of his clients, an 18-year-old parolee, was about to be sent back to prison because he was late paying restitution and "user fees" related to property-damage and peace-disturbance charges. The client showed up at court with $200, more than enough to pay off his $118 debt, in the hopes he could convince the judge to let him stay out and graduate from high school. The judge said he'd take the money, but Carver's client would still have to spend 20 days in jail. Since he wouldn't be able to graduate anyway, Carver's client pocketed the $200 and spent two months in jail. Given that one Missouri county-prison administration estimated the cost per day of housing a prisoner at $64, it's more than likely that stay cost the state several times the amount Carver's client owed.

"If the taxpayers knew that was going on, they'd go bananas," Carver says.

Indeed, the fact that the United States incarcerates too many people and spends too much money doing it is driving criminal-justice reforms in cash-strapped states around the country. Seven million Americans are in some phase of the criminal-justice system -- on probation, incarcerated, or on parole -- and spending on corrections has grown 300 percent in the past 20 years. The prison system now costs American taxpayers more than $60 billion annually. With a nationwide recidivism rate of 66 percent, the problem is obvious: Too many people who go to prison come back within a few years of being released.

For all the focus on shrinking the bloated prison system, states aren't always taking into account the role recidivism plays. They may be releasing some offenders or cutting sentences, but state lawmakers have largely neglected to consider how to help these former inmates successfully re-enter society. In January, Gov. Arnold Schwarzenegger of California touted his plan to reduce corrections costs, lamenting the tragic fact that the state spends more on corrections than it does on public education. With more than 170,000 inmates, California has the highest prison population in the country and also the highest recidivism rate -- 70 percent. The governor eventually called for broader reform efforts, but his initial plan did not include alternatives to incarceration, reflecting a perilous dynamic for corrections reformers.

"The knee-jerk reaction that we used to see was that when corrections budgets are tight, they cut programs behind bars," says Nancy La Vigne, a scholar at the Urban Institute. "But I think this crisis is big enough, that that's just not enough, so now they're thinking differently about who needs to be behind bars."

In the recent Florida governor's race, Republican candidate Rick Scott -- now the governor-elect -- pledged to cut prison costs by a billion dollars, mostly by reducing the salaries and benefits of prison officers, who responded with an ad campaign that accused Scott of wanting to release dangerous felons early. Neither side was willing to consider the one thing that might actually cut costs: reducing the number of people in prison. The dispute reflected a perilous dynamic for corrections reformers. State governors with recession-ravaged budgets are attempting to reduce prison costs without reducing their prison populations. They are reluctant to invest in solutions that make it look as though they're "going easy" on people who have committed crimes, so programs to help the formerly incarcerated re-enter society have been given the short shrift in fiscally motivated prison-reform plans.

A 2010 survey published by the Pew Center on the States found that 61 percent of respondents supported sending fewer low-risk, nonviolent offenders to prison and that 75 percent favored reducing prison terms for such offenders if the ultimate goal was to save money, despite the fact that the sample skewed conservative. The results suggest Americans would be receptive to an effective re-entry program. Seventy-seven percent strongly agreed with the statement that "an effective probation and parole system would use new technologies to monitor where offenders are and what they are doing, require them to pass drug tests, and require they either keep a job or perform community service."

The truth is that most successful re-entry programs focus on counseling and job training, relying on the commitment of enthusiastic volunteers. We don't yet know which of these programs can be effectively replicated by state and local governments. Recent studies have shown success with more systemic approaches to re-entry, such as deterring ex-offenders from violating the terms of their parole by threatening swift and sure punishment. But a recent Department of Justice inspector general's report concluded that federal grants to re-entry programs weren't being properly evaluated for effectiveness, so there was no way to determine whether programs that received money were successful in reducing recidivism. The question is whether systemic approaches can nudge the formerly incarcerated into making the kind of prudent life decisions other programs try to encourage through counseling and job training. Of course, swift sanctions and job training aren't mutually exclusive approaches.

But when the goal is to save money rather than improve the corrections system, states can undercut their own efforts at reintegrating the formerly incarcerated into society. As both conservatives and liberals leave behind the old "tough on crime" platitudes and begin to focus on a cost-benefit analysis of corrections policy, their emphasis on reducing costs can create perverse incentives -- like crushing ex-offenders with exorbitant "user fees."

According to a recent study by the Brennan Center for Justice, the 15 states with the largest prison populations -- which together house almost a million people, or more than half of the state-prison population in the U.S. -- all impose some kind of fee post-conviction, and all 15 impose parole, probation, or supervision fees. In Illinois, the Shriver Center estimated that the total cost in fees for being convicted of felony drug possession was $1,445 in 2009. And the fees don't stop when an inmate leaves prison. Florida charges its inmates for post-release supervision while the formerly incarcerated are on parole, and some states actually charge parolees for treatment. If they fail to pay, they could end up reincarcerated -- not for committing a crime or failing a drug test but simply for being too broke. While these fees vary state by state based on the rationale for imposing the fee, the need to close a budget gap often seems to result in an arbitrary financial penalty on someone involved in the criminal-justice system.

"People are coming out of prison owing substantial amounts of money, many times in the thousands of dollars," explains Rebekah Diller, deputy director of the Justice Program at the Brennan Center. "It's precisely at the time in their lives when their earning power is lowest and they're least able to pay."

As a result, the incentives for the formerly incarcerated to go straight are undermined. "There is virtually no margin of error for that individual -- a trip to the doctor [or] if their vehicle breaks down and they need a $200 repair, that could be the difference between successful completion of probation or not," Carver says. Even if they are able to find licit employment, they face the possibility of their pay being docked for debt accumulated as a result of crime they've already paid for in years behind bars.

Rather than reorient corrections policy to being less punitive, states are trying to close their budget gaps by being more punitive. Most states haven't compared the cost of debt collection or reincarceration to the debts themselves, and in many cases, the cost of incarceration is greater than the fee not being paid. In a recent study, the American Civil Liberties Union identified a man in Louisiana who was sent to prison for five months for failing to pay $498 in legal fees. At the cost of $22.39 per day, his stay in the New Orleans Parish Prison ended up costing the state more than six times what he owed. Poor people who haven't committed crimes may also face legal fees and find themselves locked up for an inability to pay their debt -- but in the case of the formerly incarcerated, these fees directly undermine states' investment in re-entry. This is particularly unfortunate for New Orleans, given Republican Gov. Bobby Jindal's commitment to pre-release job-training programs in local and parish jails.

"States across the country are doing this in the face of mounting budget deficits, but there's no assessment on the other side to see if this is actually costing the state more to collect these debts and incarcerate people," explains Vanita Gupta of the ACLU. "We are incarcerating people for their poverty."

The fiscal side of corrections policy is important. States should be utilizing the most cost-effective ways of reducing their prison populations without compromising public safety through alternatives to incarceration for nonviolent offenders, parole and probation systems that provide swift and certain punishment, moderately reduced sentences, and re-entry programs that are proven to reduce recidivism. But trying to plug budget holes with "user fees" undermines any investment in increasing public safety by reducing recidivism.

"When you get an individual who after taxes is bringing home say, 150 bucks a week, if what they're left with is $600 at the end of the month, that doesn't go anywhere, Carver says. "It makes it very difficult for folks to succeed."

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