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.