The Governors’ Bipartisan Opportunity to Reform Criminal Justice

States don't need to wait for Washington to act. They can build on the substantial progress some of them have already made.
December 11, 2018 AT 6:15 AM
Prisoners escorted into prison by guard.
(TNS/Gary Coronado)
By Dennis Daugaard  |  Contributor
A former governor of South Dakota
By Jack Markell  |  Contributor
A former governor of Delaware

As Congress and the White House debate criminal-justice reforms, governors and legislatures are moving beyond debate to action. And given that 90 percent of our nation's prisoners are housed in state and local prisons and jails, rather than federal facilities, the real action should be at the state and local level.

The good news is that reforming criminal justice and addressing the scourge of over-incarceration make for unusual political bedfellows. That's why organizations as diverse as the American Civil Liberties Union and the Koch brothers have co-hosted convenings on over-incarceration.

We learned a lot serving as governors of Delaware and South Dakota. We both concluded that although our states had incarceration rates higher than the national average -- in a country that imprisons more than other developed countries -- our criminal-justice systems didn't necessarily make our citizens safer.

We knew that most admissions into our prisons were for non-violent offenses (80 percent in South Dakota) and that a significant portion of those incarcerated had not yet been convicted of a crime (around 25 percent in Delaware).

We knew that this didn't make any sense -- not in terms of keeping our citizens safe, helping people who had made a mistake get back on track or being good stewards of taxpayer money.

We hope that as new governors prepare to lead their states in January and re-elected governors plan their new terms, they will consider taking the following steps, based on what we learned through our combined efforts:

• Use your state's own data about incarceration to develop and pass meaningful sentencing and corrections reform and to expand alternatives to jail and prison.

In Delaware, we changed habitual-offender laws, eliminated mandatory minimum sentences for low-level drug crimes, and provided a mechanism for those convicted under previous law to petition the court for a sentence modification. Habitual-offender laws lead to life sentences with no chance of parole, and in Delaware, before we changed the law, 11 percent of our inmates were serving those kinds of sentences. That was triple the national average.

In response to our growing pre-trial population. Delaware also implemented objective pretrial risk assessments to provide judges with more consistent and useful information when deciding whether those charged with crimes should await trial in the community or in jail. As documented in a January 2017 report, pre-trial detainees -- people who have not been convicted of a crime -- make up the majority of those in our nation's local jails. Since Delaware implemented this initiative, the pre-trial detainee population has been reduced by 33 percent.

In South Dakota, we strengthened community supervision to provide a meaningful sentencing alternative for many low-level drug and property offenses. Prior to the law change, most of our prison population was made up of these offenders, whose cost was crowding out treatment resources for our local communities. Post-reform, more South Dakotans on probation successfully complete their supervision, there is more treatment access, and the state has nearly quadrupled the capacity of drug, drunk-driving and other specialty courts.

• Almost everyone leaving prison comes back to the community, so make sure they are prepared to be employed and crime-free.

Both South Dakota and Delaware have thorough processes prior to discharge to assess the needs of inmates and plan how they be will be connected to appropriate outside services once released from prison. Those services range from substance-abuse treatment to job counseling to mental-health support to transportation and to housing. In Delaware, the expansion of services like these has produced a significant reduction in recidivism rates for the first 24 to 30 months after release.

Delaware also enacted "ban the box" legislation to make it easier for those with records to gain employment in state government. These policies prohibit employers from including on hiring forms a check box that asks if the applicant has a criminal record. The state also eliminated the arbitrary revocation of driver's licenses for ex-offenders, thereby making it possible for more of them to drive to work.

• Understand that there is always more work to be done to improve public safety and reduce incarceration.

Both of our states put in place methods to track reform outcomes and bolster further data review. We both also undertook additional overhauls to our juvenile-justice systems. Since South Dakota passed reform, juvenile commitments to the Department of Corrections have decreased 63 percent. Services and programming for youth are now available in every court district, meaning that law enforcement and judges have more options to hold young people accountable, address needs in the community and keep families together.

We are convinced that the reforms our states have instituted will make our communities safer, provide a second chance to many who made mistakes early in life and save our taxpayers money. That's a win-win-win.

We hope that new governors will learn what most of those who have held the office know: that good ideas don't come wrapped up in Democratic or Republican labels. We learn from each other, and we build on the progress that our predecessors have made. And when we do so, our constituents are the ones who benefit.

Dennis Daugaard | Contributor  |  @sdgovdaugaard
Jack Markell | Contributor  |  @governormarkell