New Pew Center Study on Prison Terms

Time Served

The High Cost, Low Return of Longer Prison Terms

Quick Summary

The length of time served in prison has increased markedly over the last two decades, according to a new study by Pew’s Public Safety Performance Project. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.

Over the past 40 years, criminal justice policy in the U.S. was shaped by the belief that the best way to protect the public was to put more people in prison. Offenders, the reasoning went, should spend longer and longer time behind bars.

Consequently, offenders have been spending more time in prison. According to a new study by Pew’s Public Safety Performance Project, the length of time served in prison has increased markedly over the last two decades. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.

Those extended prison sentences came at a price: prisoners released from incarceration in 2009 cost states $23,300 per offender--or a total of over $10 billion nationwide. More than half of that amount was for non-violent offenders.

The report, Time Served: The High Cost, Low Return of Longer Prison Terms, also found that time served for drug offenses and violent offenses grew at nearly the same pace from 1990 to 2009. Drug offenders served 36 percent longer in 2009 than those released in 1990, while violent offenders served 37 percent longer. Time served for inmates convicted of property crimes increased by 24 percent. 

Almost all states increased length of stay over the last two decades, though that varied widely from state to state.  In Florida, for example, where time served rose most rapidly, prison terms grew by 166 percent and cost an extra $1.4 billion in 2009.

A companion analysis Pew conducted in partnership with external researchers found that many non-violent offenders in Florida, Maryland and Michigan could have served significantly shorter prison terms with little or no public safety consequences. 

The report also summarizes recent public opinion polling that shows strong support nationwide for reducing time served for non-violent offenders.

Herald-Leader article about early release and HB 463

Early releases will put penal code reform to test - Lexington Herald-Leader

It has been nearly six months since the most sweeping changes to Kentucky's penal code in decades, but the first major test of the philosophy behind them will begin Tuesday when nearly 1,000 state prisoners are granted early release.

House Bill 463, the comprehensive and controversial overhaul that became state law June 8, was intended to save more than $40 million a year in Department of Corrections costs, with a large chunk of those savings being reinvested in community supervision and counseling programs to keep prisoners from ending up back behind bars on the taxpayers' dime.

The prisoners released Tuesday will be monitored by the department of probation and parole for the last six months of their sentences. If successful, the state could see millions of dollars in savings from the first batch of releases alone.

The average yearly cost to incarcerate a state prisoner in Kentucky is $21,906, according to data from the Department of Corrections. The average cost to supervise out-of-custody criminals is a fraction of that — $987.Savings probably won't be calculable until later this year, Kentucky Justice Cabinet Secretary J. Michael Brown said. Other portions of the bill are still works in progress.


Louisville Courier-Journal article about proposed amendments to PFOs

Public defenders seek changes to Kentucky repeat-offender law - Louisville Courier Journal

 

Prosecutors view the harsher penalties as a tool to crack down on career criminals and counteract the effects of early-release programs.

But since 1980, the number of state inmates sentenced under the PFO law has grown from 79 to more than 4,000, costing Kentucky taxpayers nearly $89 million in incarceration costs each year. Critics say that’s too much, given the state’s budget problems.

“We really can’t afford to continue this policy,” said Ed Monahan, head of the Kentucky Department of Public Advocacy.

The department, long opposed to the 35-year-old law, hopes to make its most forceful push to date for “modest adjustments” during the 2012 legislative session.

...

“Our major point is, this is costing Kentucky a lot of money and it is being applied to inmates who don’t fit the criteria of being incorrigible,” he said. “We ought to start to make modest adjustments that won’t in any way affect public safety.”

click here for complete article

 

 

LRC Press Release about Public Advocate's Testimony Regarding PFO laws

(video of the hearing is available at Aug 05 Interim Joint Committee on Judiciary Ed Monahan and Damon Preston's testimony begins 75 minutes in)

The state’s Public Advocate is asking state lawmakers to consider limits on who can be considered a persistent felony offender and violent offender in Kentucky.

Kentucky Public Advocate Ed Monahan told the Interim Joint Committee on Judiciary that “modest adjustments” to the state’s persistent felony offenders (PFO) and violent offender laws would result in more prisoners being released at a time when they are least likely to reoffend, save the state millions of dollars, and create a more balanced criminal justice system where the longest sentences are reserved for felons who Monahan described as more of a risk to public safety.

Today, Monahan said, there are 7,792 inmates in Kentucky sentenced as persistent felony offenders, violent offenders or both at a cost to the state of $169 million. Many are offenders who were convicted of the lowest level, often non-violent felonies.

In fact, Monahan said 1,441 Kentucky inmates are serving an average sentence of 11 years for an underlying offense classified as only a Class D felony, the lowest level felony offense under state law.

“One felony is a serious conviction with serious consequences. But if you look at the 7,700 you have a lot down at the Class D range. A question that one might ask is, do you really want to incarcerate those persons for this aggravated length of time at a significant cost to you?” said Monahan.

Many PFOS in Kentucky today are felons who have never served time for a prior offense, said Monahan. That has been the case since 1976 when, Monahan said, the Kentucky General Assembly tightened the state’s PFO statutes by abolishing the requirement that a person be imprisoned on a prior offense before being sentenced as a PFO and lengthened the time a PFO must serve before being eligible for parole, among other changes. Prior PFO statutes required three prior convictions and two separate periods of incarceration before a person could be sentenced as a PFO, he said.

Instead, the Public Advocate and his staff suggested that state lawmakers consider adjusting the PFO and violent offenders statutes in any number of ways, including eliminating PFO sentencing for non-violent felonies, using PFO status for sentencing of those with two or more prior felonies without a substantial break in criminal activity, repealing the required 10-year period before some PFOs are eligible for parole, an requiring actual imprisonment on prior felonies before a person can be sentenced as a PFO.

For violent offenders, Monahan’s office suggested reinstating Kentucky’s pre-1998 requirement that 50 percent of a violent offender’s sentence, rather than the current 85 percent requirement, be served before a violent offender is parole eligible. The office also suggests that violent offenders be limited to those convicted of six specific crimes including murder as well as rape, sodomy, robbery with a firearm, burglary with a firearm and assault—all in the first degree only.

Changing the PFO and violent offenders statutes would also restore sentencing jurisdiction to judges and juries rather than prosecutors, where it resides now because of legislative changes, said Monahan.

Committee Co-Chair Sen. Tom Jensen, R-London, asked Monahan if he believes the state’s PFO statutes from 1974—which Monahan said were more limited—were a better way to go.

“As a public policy measure…when do we say enough is enough for somebody?” said Jensen. “There comes a point where we have to say, I think we have to say, we just can’t tolerate your behavior.”

Monahan said what changes are made to the law is up to the General Assembly, but added that he is providing facts that will help lawmakers decide if they want to change the statutes or not.

Keeping felony offenders in prison for decades have not shown to be effective in all cases because it carries significant costs and, studies show, older inmates are less likely to reoffend, said Monahan. “The adjustments that can be made (would give) the Parole Board a little more discretion with those folks,” he said.

Right now, Monahan said Kentucky’s PFO and violent offender statutes are some of the broadest in the nation.

 

2011 Penal Code Task Force - DPA submits two documents

DPA has recently submitted two documents to the 2011 Penal Code Task Force.  To start their work this year, the Task Force solicited criminal law reform ideas through a survey.  To further assist the Task Force, Public Advocate Ed Monahan created a document outlining the development and impact of the PFO and Violent Offender laws. 

Cost-Efficient Adjustments of Kentucky’s Persistent Felony Offender and Violent Offender Laws submitted to 2011 Penal Code Task Force by DPA

Survey of DPA Attorneys Regarding Needed Penal Code Reform

Proposed Adjustments to Kentucky’s PFO Law (KRS 532.080)

A.    Eliminate PFO enhancements for non-violent felonies.

B.    Eliminate first and second degrees, leaving PFO status to apply only to those with two or more prior felonies without any substantial break in criminal activity. 

C.    Repeal 10-year parole eligibility requirement for PFO first degree.

D.    Require actual imprisonment on prior felonies.

E.    Prohibit all double enhancements by eliminating PFO for all offenses already enhanced by a prior conviction.

Proposed Adjustments to Kentucky Violent Offender Law (KRS 439.3401)

A.    Reinstate 50% parole eligibility for violent offenders, as originally passed in 1986 and maintained until 1998 when Congress conditioned federal funds on passage of 85% parole eligibility. (No federal funds would now be lost by reverting to the prior law.)

B.    Limit the category of violent offenders to those convicted of:
   i.     Murder
   ii.    First-Degree Rape
   iii.    First-Degree Sodomy
   iv.    First-Degree Robbery with a Firearm
   v.    First-Degree Burglary with a Firearm
   vi.    First-Degree Assault

Other Alternative Adjustments to the Kentucky Violent Offender Statute Include:

A.   Limit 85% parole eligibility to intentional conduct resulting in death, serious physical injury, or substantial sexual contact.  Wanton murders, assaults and other non-intentional crimes resulting in death or serious injury and other violent intentional crimes not resulting in death, serious injury, or substantial sexual contact (i.e. first-degree robbery) could be reverted 50% parole eligibility rather than 85%.

B.    Limit each category of crime in KRS 439.3401 to convictions “involving the death of the victim or serious physical injury to a victim.”

C.    Limit violent offenses to any class A or B felony or capital offense involving the use or threatened use of physical force upon another person.

D.    Graduate the parole eligibility according to the Classification of the violent offense, e.g., 75% for violent Class A convictions, 50% for violent Class B convictions, etc. 

E.    Provide that violent offenders who reach a certain age, such as 65 or 70 years, except for those sentenced to life without parole or life without parole for 25 years, be parole eligible.

F.    Repeal the 2006 substantial expansion of the violent offender statute, which added the following crimes to the definition:
   1.    Commission or attempted commission of a felony sexual offense in KRS Chapter 510;
   2.    Use of a minor in a sexual performance as described in KRS 531.310;
   3.    Promoting a sexual performance by a minor as described in KRS 531.320;
   4.    Unlawful transaction with a minor in the first degree as described in KRS 530.064(1)(a);
   5.    Promoting prostitution in the first degree as described in KRS 529.030(1)(b);
   6.    Criminal abuse in the first degree as described in KRS 508.100;
   7.    Burglary in the first degree accompanied by the commission or attempted commission of an assault described in KRS 508.010, 508.020. 508.032, or 508.060;
   8.    Burglary in the first degree accompanied by commission or attempted commission of kidnapping as prohibited by KRS 509.040; or
   9.    Robbery in the first degree
       
G.    Expand the KRS 439.3402 exemption to include additional significant mitigating conditions such as mental illness, mental retardation, the age of the defendant, a victim of  sexual abuse, and those in KRS 532.025:
   1.    The defendant has no significant history of prior criminal activity;
   2.    The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance even though the influence of extreme mental or emotional disturbance is not sufficient to constitute a defense to the crime;
   3.    The victim was a participant in the defendant's criminal conduct or consented to the criminal act;
   4.    The offense was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct even though the circumstances which the defendant believed to provide a moral justification or extenuation for his conduct are not sufficient to constitute a defense to the crime; 
   5.    The defendant was an accomplice in an offense committed by another person and his participation in the offense was relatively minor;
   6.    The defendant acted under duress or under the domination of another person even though the duress or the domination of another person is not sufficient to constitute a defense to the crime;
   7.    At the time of the offense, the capacity of the defendant to appreciate the criminality of his conduct to the requirements of law was impaired as a result of mental illness or retardation or intoxication even though the impairment of the capacity of the defendant to appreciate the criminality of his conduct or to conform the conduct to the requirements of law is insufficient to constitute a defense to the crime; and
   8.    The youth of the defendant at the time of the crime.


Unlocking America: Why and How to Reduce America's Prison Population

This report published by The JFA Institute shows "that incarcerating large numbers of people has little impact on crime" and that the "improper use of probation and parole increases incarceration rates while doing little to control crime" (p. 2). This publication is divided into seven parts: crime rates and incarceration; three key myths about crime and incarceration; the limits of prison-based rehabilitation and treatment programs in reducing the prison population; decarceration, cost savings, and public safety; six recommendations; and concluding remarks.

Unlocking America: Why and How to Reduce America's Prison Population (November 2007)

 

Fundamentals of Evidence-Based Policy-Making

Evidence-based policy-making is an attempt to identify and adopt policies scientifically proven to achieve desired results.  In the area of criminal justice, the ultimate goal is to reduce crime while at the same time reducing spending.  Believe it or not, this has been accomplished in many states.

So what are the fundamentals of evidence-based policy making in the criminal justice system?  What principles result in less crime at lower cost? Here they are:

  • Sort offenders scientifically by risk – Save the expensive jail and prison space for people who are statistically high risk.  In bond decisions, sentencing decisions, and parole board decisions, seek to avoid incarceration of low and moderate risk individuals and adopt community-based alternatives instead.
  •  Base intervention programs on science – Literally thousands of programs all over the country have been studied and evaluated for their success in reducing things such as failure to appear, committing new crimes while out on bail, and recidivism after re-entry into the community.  The research is ample and best practices are being identified.  Just as an example, the research is clear that most programs need to invest more in supervision of people identified as high risk and less in supervision of low and moderate risk individuals.  Implementation of evidence-based practices results in average decrease in crime of 10 to 20 percent.
  • Harness technology – Technological innovations have made supervision of people before trial, on probation, or on parole, much easier and effective.
  • Make sanctions for violations certain and proportionate – Probation officers with high caseloads, a lack of a range of appropriate sanctions, and who have to go through administrative hurdles to get a sanction imposed,  often delay seeking sanctions until a really serious offense has been committed.  HB 463 introduces a mandate for graduated sanctions to be imposed on those who violate probation or parole and gives courts the ability to grant probation officers the authority to impose those sanctions without prior approval of the court for each violation.  This reduces delay, reduces time probation officers have to spend in court, and reduces time violators spend in jail.
  • Measure progress – Ways must be identified and adopted to measure progress throughout the entire criminal justice system.  Which jails, prisons are saving money?  What is happening to the recidivism rate?  Which circuits or districts are reducing failure to appear among those released prior to trial?  How many more people are paying restitution?  How many more people are completing treatment in community-based services rather than being incarcerated? 
  • Create incentives for success -  HB 463 contains provisions for creating incentives for success at many levels – that of the individual probationer or parolee, of a circuit or district court, of statewide programs.

For  a more extensive discussion of these principles and their use see the Kentucky Task Force on the Penal Code and Controlled Substances Act Report

Contributed by Glenn McClister

HB 463 Official Certified Copy Now Available

Most of the provisions of historic House Bill 463 become effective today.  Representing one of the most sweeping and comprehensive reforms of the criminal justice system in Kentucky in decades, the legislation is based on models which evidence shows have been effective in other states in not only lowering systemic costs but lowering recidivism as well. 

Here is the certified copy and all the statutes effected by HB 463 which are either already in effect or go into effect today.  Once legislation is passed it goes to the revisor of statutes to codify the legislated amendments and additions into the statutes effected by that legislation.  The only “official” or “final” copy of what those new or amended statutes look like belongs to the revisor of statutes.  These are all the statutes effected by HB 463 in their new and final form, including the emergency provisions regarding conditional discharge revocations and those which take effect today.  Those sections which will not take effect till 2012, 2013, etc. are NOT included.  The revisor of statutes has also provided a copy of his certification of the accuracy/authenticity of this copy of the newly revised statutes (he will keep the original on file in his office, as it says in the certification).

The statutes you’ll want to look at first include the KRS 218A statutes, KRS 431 statutes, KRS 532.080, and KRS 534.   

Contributed by Glenn McClister

Other HB 463 related resources

June 2011 Edition of The Advocate Newsletter

DPA District Court Manual (updated to include HB 463)

Stay tuned to this blog or subscribe to updates through email, Twitter or Facebook for more news about HB 463 implementation. 

 

DPA District Court Manual Now Updated to Include HB 463 Other New Legislation

The third edition of the District Court Manual (47 pages) is now available. 

Revised to include the new pretrial risk assessment scoring used by AOC as of March 1, 2011 and to include all the new provisions of HB121 and HB463 which apply to district court practice – including the very important new provisions regarding arrest, bail and the changes to enhanceable offenses.  The relevant caselaw is up to date and new sections on appealing bail in district court and on earning credit toward old fines and costs under HB 463 have also been included.

Contributed by Glenn McClister