by Marc Levin,
Originally Published in, The Crime Report
April 25, 2023
Some 57% of Americans say addressing crime is a top priority – ranking far higher than issues such as the environment and poverty – and state lawmakers are rightly listening. However, there is a danger, which is particularly acute in southern states, that policymakers may focus on expanding prisons as opposed to preventing crime and reducing recidivism.
Locking up dangerous individuals for the right amount of time is a key part of the public safety equation. However, if incarcerating more people was a panacea for public safety, states such as Tennessee, Texas, Alabama, South Carolina, and Arkansas would be among the safest states in the country. While these states have reduced their incarceration rates over the last couple of decades in alignment with the national trend, they still maintain both incarceration rates and violent crime rates that are above the national averages and are struggling to staff existing lockups.
For these reasons, lawmakers should think twice before returning to 1990s-era policies such as lengthy mandatory minimum prison sentences, policies that research indicates have meager crime control benefits but outsized costs. Unfortunately, lawmakers in many southern states are considering policies that contradict what research has shown us.
Several Southern States Moving to Increase Incarceration
One successful policy that dozens of states have adopted or strengthened in recent years is the awarding of good time or earned time to people behind bars for exemplary behavior and completing programs. However, a new proposal from Tennessee lawmakers seeks to remove this authority from wardens and sheriffs, creating a new bureaucracy that would be required to approve every such request for both prisons and local jails. Approval of this proposal would result in the hiring of a panel of new full-time state employees at a cost of approximately $2.5 million to taxpayers, not including the uncalculated but potentially much higher cost associated with additional time served by individuals whose good time credits are either initially denied or rescinded based on a subsequent disciplinary violation.
In addition, Tennessee lawmakers are considering expanding the state’s three-strikes law, which is estimated to result in a one-time cost of $384 million to build more prisons that would entail annual operating costs of $56 million.
In nearby South Carolina, lawmakers are weighing a proposal that, among other things, would increase prison terms for individuals illegally carrying guns. While there is evidence that police enforcement of such laws can reduce gun violence, existing South Carolina law provides a significant deterrent with punishment of up to 10 years in prison for people who are caught with a gun that is illegal because they have previously been convicted of an offense carrying a penalty of five years or more in prison. Existing South Carolina law provides a significant deterrent with punishment of up to 10 years in prison for people who are caught with a gun that is illegal because they have previously been convicted of an offense carrying a penalty of five years or more in prison.
The new proposal would subject all individuals with a prior conviction of an offense carrying up to just one year in prison to this regime, thereby extending the net to many people who could legally carry a gun were it not for a minor drug possession conviction decades ago. Not only would it make up to five years in prison the only option for the first offense, but it would create ranges of 5 to 20 years and 10 to 30 years for subsequent offenses, with the low end of the range becoming a mandatory minimum.
Similarly, Texas lawmakers are considering legislation that would create a mandatory minimum of 10 years in prison for certain offenses if a gun is used. This proposal understandably targets such heinous offenses as aggravated sexual assault and aggravated kidnapping which are already subject to longer penalties, but perhaps unintentionally it also sweeps up offenses such as delivering more than four grams of certain drugs and even mere possession of marijuana in a drug-free school zone.
Under this legislation, the gun could be perfectly legal and in the trunk of a vehicle. This raises the specter of cases such as federal one involving Weldon Angelos, whose 55-year federal prison sentence was required by a statutory scheme that enhanced marijuana trafficking charges against him because he possessed a gun even though it was never used or brandished. Another provision of the bill bars parole in these cases until ten years have been served, which would result in more individuals with sentences of ten years or less being released from prison without any supervision.
Similarly, despite a prison staffing shortage, Alabama lawmakers are advancing legislation as SB143 and HB191 to boost penalties on gun possession in cases where no one is injured, including creating a mandatory minimum prison sentence of 5 years for having a gun while committing any act to benefit a gang and 10 years if the gun is fired. Another provision requires 16 and 17 year-olds to be tried as adults for any offense that benefits a gang. In both cases, it could be difficult for courts to determine what actions “benefit a gang. Under the definition in the legislation, just three friends or siblings committing crimes together could constitute a “gang.” Also, research indicates that locking up juveniles in adult prisons does not reduce recidivism and increases the risks of abuse.
In Arkansas, policies have already been approved this year to build more prisons and make long sentences longer. However, since the penalty enhancement legislation does not take effect until 2025, the plan could still be modified in their next session. Under Senate Bill 495, some individuals will be required to serve 100 percent of their sentences, thereby eliminating the chance of parole, for a laundry list of offenses that includes not just capital murder, but also illegally possessing a gun, fleeing, and possessing child pornography. Those convicted of many other crimes, from voyeurism to possessing explosive material without any ill intent or actual harm, would be required to serve 85% of their sentence.
Notably, there are some positive provisions in SB495 such as those that establish a mental health pilot program and aim to help incarcerated parents stay in touch with their children. Given that $157 million of the expense is projected to be incurred from 2027 forward, there is still time for lawmakers to take steps in the next few years to recalibrate their approach.
Why These Proposals Are Flawed
To be sure, most of the offenses targeted by these various bills are serious crimes, and their perpetrators must be held accountable. But there are several reasons why this cookie-cutter approach is contrary to the best research on maximizing the use of correctional resources for public safety.
First, many provisions in these bills propose to increase time behind bars based solely on the specific type of offense. This ignores many factors that are needed to assess the risk of recidivism, such as age, prior criminal record, and programs completed while behind bars. All five of these states have parole and they, along with judges on the front end, are best equipped to account for these individualized factors both through their professional judgment and the use of objective risk assessment instruments.
One only need to look as far as official state data to realize that these proposals often overlook obvious factors such as age and, more counterintuitively, the fact that a more serious offense does not translate into a higher recidivism rate. Notably, a 2022 report by the Arkansas Department of Corrections found that age at time of release is inversely correlated with recidivism while prior incarcerations were positively correlated. It also found that those incarcerated for violent offenses had by far the lowest recidivism rate.
Another problem is that some provisions such as those at issue in Texas and Arkansas that would restrict parole eligibility could mean that those who would have previously been supervised by parole officers will now be released without any accountability or reentry services. A study of former New Jersey prisoners found that those who are discharged without supervision are more likely to recidivate.
Perhaps most importantly, when examining the share of all violent crime attributable to people released from prison, it becomes clear that making long sentences longer is often an inefficient means of curtailing crime. For example, there were 66,771 reported crimes against persons in Arkansas in 2021, but over three years those released from Arkansas prisons in 2017 were responsible for 347 new violent and sex offenses.
The Council on Criminal Justice’s Task Force on Long Sentences has found that this approach is not an efficient allocation of limited taxpayer resources to reduce crime. In fact, a January 2023 analysis commissioned by the task force found that modest reductions in the length of incarceration for some people serving lengthy sentences in Illinois would likely result in almost no additional arrests, and virtually none for violent or weapons offenses. This concept isn’t that surprising, since it is a long-established fact that most people age out of crime. But the new data make plain just how much it costs and how little benefit there is to the tail ends of long sentences.
Nonetheless, to target the source of just one-third of one percent of annual offenses against the person, Arkansas lawmakers are putting taxpayers on the hook for $163 million in operating costs over 10 years, not counting the $470 million in new prison construction that this legislation is contributing to.
Finally, there is the problem of finding and retaining the correctional officers and other staff needed to incarcerate more individuals. For example, Arkansas prisons reached 105 percent of capacity in 2021 and, as of mid-2022, had a 46% correctional officer vacancy rate. Similarly, the deadly prison bus escape in Texas was found to have been caused by understaffing at a unit at which just 57% of positions were filled.
Policymakers in southern states, and indeed throughout the nation, are right to make curbing violent crime a top priority but most provisions that would make long sentences behind bars last even longer would do little to achieve this goal. Serious crimes committed by people released after serving many years in prison account for a tiny share of all such crimes.
Conversely, there is significant evidence showing that putting more resources into interventions such as the right kind of hotspot policing, focused deterrence strategies, and community violence interruption can move the needle on curbing violence. This reflects the fact that violent crime is disproportionally perpetrated by young men in the context of certain places and associations rather than by a fixed pool of the same individuals over decades. In fact, most individuals age out of crime. Given limitations on budgets and personnel, disproportionally allocating resources to more incarceration with little precision necessarily consumes tax dollars that could have been better used to prevent and solve more crimes at the front end.
Lawmakers should also focus on the quality of time served, not just the amount of it, by bolstering effective treatment programs behind bars and reentry initiatives. While the public is rightly concerned about crime, an April 2023 poll of Louisiana voters commissioned by the Justice Action Network found 70% of Louisianans said it was more important to them that people are less likely to reoffend after incarceration than how long they serve.
Southern states have been at the forefront of justice reinvestment efforts over the last two decades that have resulted in a more balanced corrections portfolio that includes not just prisons, but approaches such as treatment courts and mechanisms for individuals to earn time off of their sentences. Despite the significant rise in most types of violent crime starting in 2020 which is now abating to some degree, lawmakers in southern states and beyond should use a scalpel rather than an anvil to ensure they are cracking down on crime without getting tough on taxpayers.
Marc A. Levin, Esq. is Chief Policy Counsel for the Council on Criminal Justice and can be reached at mlevin@counciloncj.org.
This article first appeared on The Crime Report and is republished here under a Creative Commons license.
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