Now, however, Maryland is ready to try a new approach. In April, the state legislature passed a law that will divert many convicted substance abusers away from pricey prison beds and into treatment instead. At the same time, the state is beefing up education and treatment programs for all inmates. Maryland is trying to put some correcting back into corrections.
If Maryland's shift from penal retribution toward rehabilitation sounds like something dreamed up by bleeding hearts, however, there's another surprise: Its leading proponent is a Republican. Governor Robert L. Ehrlich Jr. came into office last year pledging to get low- level drug offenders out of prison. "The war on drugs has been unsuccessful," Ehrlich says. "For Republican governors, that may have been an unsafe political statement to make 10, 15 or 20 years ago."
Maryland isn't the only state that's re-thinking the harsher sides of its punishment policies. In the past three years, about two-thirds of all states have lowered prison sentences or begun steering convicts into incarceration alternatives such as drug treatment or community corrections programs--and in many cases, Republican governors and/or legislators have been leading the way. Michigan recently repealed mandatory minimum sentences for drug crimes. Kansas last year mandated treatment for first-time drug abusers. And Connecticut this year loosened parole rules for nonviolent felons. There's a new shorthand phrase lawmakers of all stripes use to sell these policies to their constituents. Now they're getting "smart on crime."
Why the new attitude? The short answer is the states' recent budget crisis. After a decade of ratcheting up corrections budgets--states now spend nearly $40 billion on prisons--legislators suddenly found they had to prioritize whom they want locked up. It seems the budget crisis turned out to be a positive force for rational debate. "It allowed legislators and other elected officials to get past the partisanship that infected this issue," says Daniel Wilhelm, who monitors state sentencing policies for the Vera Institute of Justice in New York. "It broke that tough-on-crime/soft-on-crime dichotomy."
But money is not the only thing. The plunging crime rate since the early 1990s--due in part to tougher sentencing, many argue--means that crime isn't the volatile issue with the public that it was in 1994. Debate in statehouses today isn't as emotional and headline-driven as it used to be. Legislators are still toughening sentences for certain crimes--in particular, sexual offenses. But when it comes to low-level drug addicts and petty thieves, they're having genuine second thoughts about the efficacy and cost-effectiveness of prison as a correctional tool.
REFORM FROM THE RIGHT
Ironically, Republicans are best positioned politically to make that point. They've done such an effective job of branding Democrats as "soft on crime" that sentencing reform in many states had to come from the right, not the left. That's what happened in Texas, where Ray Allen, the Republican who chairs the House Corrections Committee, persuaded tough-talking conservatives to divert thousands of drug abusers out of prison and into treatment. "It opened up a real un- Republican can of worms for me," Allen says. "It was like Nixon going to China. Some of my colleagues said, 'Ray, what are you doing?' And I said, 'The only thing we can do.' We don't have the money to lock everybody up."As in many states, the sentencing debate in Texas began with the budget. Facing a massive deficit last year, the legislature lopped $240 million from the two-year prison budget. As Allen scrounged for budget cuts, two facts jumped out at him. The first was that Texas had locked up more than 4,000 people on first-time drug-possession charges. That meant the state was spending millions of dollars, as Allen puts it, incarcerating people caught with less than a Sweet'N Low-size packet of cocaine or methamphetamine. The second fact had to do with the equity of sentencing around the state. It seems half of these first-timers were coming out of just one jurisdiction: Harris County. "What began as a budgetary search for expenses to cut," Allen says, "turned into some real questioning of what are we doing and why are we doing it."
Allen had seen members of his own family recover from drug addictions, and came to believe that first-time offenders deserved a shot at treatment before incarceration. His bill gave judges a range of sentencing options, from outpatient treatment to intensive inpatient care for the most serious addicts. The shift is projected to save Texas $117 million over five years. Allen is confident that it will also prove to be more effective public policy. "If we have to make choices, then low-level first-time offenders are the easy choice to make," Allen says. "There's ample research showing that drug treatment is more effective at stopping crime."
Some critics, however, argue that Texas and many other states are taking too simplistic an approach--making the same kind of mistake by diverting whole classes of criminals from prison that they did by putting them behind bars in the first place. "The pressure is there to free up beds," says Richard Kern, director of Virginia's sentencing commission. "But there's no sound methodology regarding how they're doing it."
Virginia was revisiting its sentencing priorities long before the fiscal crisis hit. It began switching to a data-driven approach to sentencing back in the mid-1990s. At the time, Virginia had just adopted a truth-in-sentencing law requiring violent felons to serve at least 85 percent of their sentences. Knowing that lockups would quickly fill with violent offenders, Kern's commission set out to free some space by reducing prison time for non-violent felons. Virginia still wound up building some new prisons, but not at the budget- busting rate that other states did.
What developed was a risk-based methodology in which judges set sentences much the way insurance companies set their rates. The sentencing commission analyzed thousands of criminal history records, looking for patterns of recidivism. What it found wasn't surprising-- an unemployed, unmarried, 20-year-old drug offender is a greater risk than a working, married, 30-year-old drug offender--but for the first time that data is programmed into the judges' sentencing guidelines. High-risk convicts are more likely to do hard time. Low-risk felons are more likely to go into drug treatment or community corrections. "Judges can make a more informed decision on who they want to fill an expensive prison bed, and who they're willing to take a chance on putting into an alternative program," Kern says.
A THERAPEUTIC APPROACH
Maryland, too, is stepping up its individual assessment of criminals. The difference is that in Maryland the plan is for that to happen in prison, rather than in court. As part of a pilot program known as RESTART, all incoming prisoners will be evaluated for drug problems and mental illnesses. Case managers will tailor a treatment plan for each inmate, and begin making plans for housing, jobs and other transition issues nine months before release. Overall, it's a more therapeutic approach to hard time than Maryland has been accustomed to recently. "Guess what, 95 to 98 percent of inmates are coming out sooner or later," says corrections chief Mary Ann Saar. "We never asked ourselves what condition do we want these people in when they come out."In Maryland's case, Saar insists, these changes aren't budget-driven at all. In fact, they'll cost at least $3 million more up front for expanding drug treatment services. If there's a cost savings, it will only become evident a few years from now--and that is only if the new philosophy actually stops ex-cons from becoming cons again. "The cycle has been addiction, offense, incarceration, keep the addiction, get out and re-offend," says Governor Ehrlich. "We didn't understand the importance of treatment behind the wall."
