Wednesday, September 06, 2017

Urban Institute: Longest prison sentences getting longer

A new study from the Urban Institute on the causes of mass incarceration (see coverage from Vox and the Marshall Project) confirms some of the points Grits made this spring rebutting suggestions by Fordham law prof John Pfaff that the criminal-justice reform movement must shift its focus. Pfaff disputed reformers attention to long sentence lengths, claiming those who decried them misunderstood the true sources of mass incarceration. Here's what I'd written in April in response:
Pfaff discovered through analyzing state court filings that the average length-of-stay for people released from incarceration is going down, taking this to mean that long sentences aren't a major cause of mass incarceration. But those numbers are averaged and mask a more nuanced dynamic. Really, there are two categories of prisoners: Short-timers who account for the churn, and long-timers who have mostly been convicted of violent offenses and have quite long sentences. 
In FY2015, for example, the 70,311 people released from TDCJ served an average of 4.5 years on an average sentence of 8 years. But those are averages. Many sentences are shorter, and the numbers are driven up by long sentences for a smaller number of violent crimes - a fact which complicates his "ignore sentence length" suggestion quite a bit. A whopping 63 percent of people convicted of violent offenses in TDCJ were in 2015 serving sentences longer than 10 years. By contrast, just 12 percent of new admissions had received sentences for longer than a decade. So if Pfaff wants reformers to focus mainly on violent offenses, they'd have to consider sentence length much more than he suggests.
The Urban Institute explored that path of inquiry even further. They "looked at the 10 percent of the prison population in each state serving the longest terms ... In most states, the average time served by the top 10 percent rose much more sharply relative to the rest of the prison population." Further, they found that these were the results of policies enacted by Legislatures: "These steep increases over time and the variation across states points to the power of state-specific policy decisions."

So the claim that reformers are wrong to focus on length-of-stay doesn't hold water. Ditto for the suggestion that reformers should abandon efforts to reduce sentences legislatively in favor of focusing on District Attorneys and the rate at which they prosecute cases. Length of stay matters, says the Urban Institute data, and so does legislative policy.

Both Pfaff and the Urban Institute use these data to argue that reformers should focus on violent offenders to reduce mass incarceration. But Grits would in response iterate that Texas' experience argues for a more catholic approach. As I'd written in April:
Not only is Pfaff wrong to belittle efforts to reduce penalties for nonviolent offenses, he's also wrong that such efforts preclude focus on reducing incarceration of people convicted of violent crimes in state prisons. In Texas, the state increased release rates for violent offenders at the same time the Legislature was focused on reforms aimed at nonviolent crimes. It's simply not been my experience that the rhetorical problems he hypothesizes from the ivory tower play out that way in the real world
The uptick in parole rates for violent offenders in Texas had a number of causes. For example, Texas' 2007 reforms created new "Intermediate Sanctions Facilities" which, while much-derided by Andy Kahan and certain probation directors, have performed an important function of reducing the proportion of parolees revoked back to TDCJ to serve their full sentences based on petty violations or low-level crimes. Because those intermediate sanctions are available for most offenders, and because having a single, statewide parole agency contributes to a consistent, statewide policy, the use of ISFs has contributed to reduced revocation rates on the parole side to a much greater degree than for Texas probation departments.

Moreover,  the '07 reforms included money for various treatment programs, and there existed certain classes of offenders who weren't being paroled because they hadn't undergone treatment while inside. Once they got it, the parole board released them as they'd told the Legislature they would. (Not everyone believed that would happen.)

So a push that on paper was about "nonviolent" offenders turned out to adjust practices throughout the system that impacted incarceration for some people convicted of violent offenses as well. And since crime declined steadily in Texas throughout the period we're discussing, there's no reason to believe that this sort of managed reduction in incarceration levels threatened public safety.

Bottom line, to reduce mass incarceration, there are two distinct categories of prisoners which must be addressed and which each require different strategies (hopefully executed simultaneously). There are 1) a small number of violent offenders receiving increasingly extreme sentences, according to the Urban Institute's findings, and 2) a vast number of low-level offenders, many of whom probably shouldn't be sent to prison in the first place, who contribute to "churn" in the justice system, filling county jails and stacking up third-degree and state-jail felonies.

That second category is where the most important short-term reductions may be found. Again, from my April review: "the quickest way to reduce admissions is to reduce penalties along the margin between the lowest-level felonies (in Texas, state jail felonies), and higher-level misdemeanors (in Texas, Class As). These are almost entirely nonviolent drug and property offenses." But's it's also true that, in the long run, to get to mid-double digit reductions in incarceration would require lowering top-end sentences for people convicted of violent crimes.

Mass incarceration does not have any one cause: Not just long sentences, not just mis-use of prosecutor discretion, not just erosion of Fourth Amendment rights in public interactions with police, not just false convictions of innocent people, but all of these and more have contributed to the problem. So walking back one piece of it probably will never amount to a cure-all.

To reduce mass incarceration through the political process requires understanding all these different contributing factors, then engaging opportunistically whenever it's possible to address a piece of the problem. Texas isn't California, where a) a federal judge mandated incarceration reductions and b) reformers could put their own proposals on a statewide ballot for an up or down vote. In Texas, these reforms must occur through the democratically elected Legislature, and even in the 21st century, politics there remains the art of the possible.

It would be nice if there were a silver bullet - reduce sentence lengths, rein in rogue prosecutors, combat discriminatory policing - but each of these by itself is a partial measure. It took 40 years for things to get this bad. There's no quick fix here. No easy answers.


Anonymous said...

What percentage of those serving lengthy sentences are sex offenders?

Gritsforbreakfast said...

Can't tell from the Texas data. Inmates convicted of sexual assault, sexual assault against a child, or a "violent sexual offense" made up 22% of TDCJ inmates categorized as "violent" offenders, but there's not a breakout of the longest sentences by offense type.

The national analyses indicate that most serving the most lengthy sentences are for murder, not sex offenses.

Wise Texan said...

I wonder how repeat offender sentence lengths stack up in this context. It's strange to me how prosecutors and judges think the answer to fixing a repeat offender is longer sentences when in reality the main issue with repeat offenders typically (in my experience, not based on solid data)is an addiction problem, mental health issue or combination of the two. As we know, TDCJ does not readily provide access to treatment or rehabilitation for either of these problems and parole policies in fact cause many offenders to refuse mental health treatment because it makes supervision more intensive. If they'd work on rehabilitation instead of slapping a 15 year sentence on a crime that should have 5 years, I'd venture to guess we'd see recidivism rates reduced considerably among repeat offenders.

Anonymous said...

Both murderers and sex offenders have among the lowest recidivism rates of all prisoners, FWIW.

Steven Seys said...

The following is personal experience, not statistical study: if a person is innocent and stands on principle by refusing to plea-bargain, the prosecution ramps up the vindictiveness and goes for maximum sentence. In the adversarial system, if the defendant is indigent, he is guaranteed a conviction in spite of the evidence. The way appointed defense lawyers ignore their clients' input and mount a minimum defense in the face of the all-out effort made by the state ought to be sanctioned by the court. But the legal profession protects its own, and assumes that a low bank balance proves the client is not worthy of a good defense.
I have read cases where the justices decry the conviction of an actually innocent person and still claim the person had a fair trial. By definition a fair trial is one in which the result can be relied upon. Who desires the incarceration of innocent people enough to rely upon the outcome of the trial that sends an innocent person to prison?

Anonymous said...

@Wise Texas, what do you do with offenders who have no desire to be rehabilitated?

Gritsforbreakfast said...

@9:05, defined how? People age out of criminality over time, so "no desire" today doesn't necessarily mean "no desire" tomorrow.

Anonymous said...

GFB, in the context of repeat offenders where do you draw the line? How many offenses should society allow offenders to commit while attempting to rehabilitate them? I've seen any number of defendants in court turn down probation offers which included various therapy or treatment options because they just wanted to go "do their time." Not every criminal wants help or wants to change. The sad reality is that many don't particularly care to work, enjoy using alcohol and drugs, and enjoy engaging in other irresponsible or antisocial behavior. I think 9:05's question is still valid. What do you do with offenders who don't want to be rehabilitated? And to narrow the issue based upon your own observation, what are we supposed to do with those offenders while we wait for them to age out?

Anonymous said...

The real problem is that the Parole Board looks at the crime they committed, not how much education and classes they have taken. They also do not look at the inmates working for over 25 years with no cases. The Parole Board, do not acess the inmates, by how long they been there, without any cases, or about their work experience or about how they have changed their life around for the better. They should be made to get a report from the Warden, before refusing parole. Oh, I forgot, they need them to continue working without pay, called ''Slaves". The parole Board need to do their jobs, and stop getting paid for nothing!!!!

Gritsforbreakfast said...

@5:08, re: "Not every criminal wants help or wants to change" ...

Then wait a few years. Most people change whether they want to or not. See my comment at 11:25. But keeping folks late into their dotage harms public safety rather than improves it. We've got prison units in Texas that look like nursing homes on the inside.

If prisons were only housing incorrigibles who didn't ever want to change, they'd be a fraction of their current size.