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Until 1984, people convicted of felonies in Washington State could be granted probation with sentencing deferred, granted a suspended sentence subject to probationary conditions which might include some county jail time, or committed to prison. Those sentenced were given the maximum term provided by statute for the particular crime, which if not otherwise specified, was twenty years.
The actual time to be served in prison was determined by the Board of Prison Terms and Paroles, which initially decided on the minimum term for each prisoner, reconsidered it annually, and further reduced it up to one-third for "good time". Upon release, the prisoner continued on parole for the remainder of the maximum term, and could be returned to prison at any time for violations of the specified conditions of parole.
The Sentencing Reform Act of 1981, which governs crimes committed on or after July 1, 1984, was the result of ten years or so of scholarly debate regarding the broad discretion given judges and parole boards under the indeterminate sentencing laws. Judicial discretion was criticized on the basis of the great disparity in sentences given to individuals convicted of the same crime. Parole board discretion was condemned because of the unfettered control exercised over the lives of prisoners and the resulting uncertainty created, as well as public dissatisfaction with the large difference between the formal sentence and the lesser time actually served.
The SRA establishes a system of determinate sentences, or "just deserts", which are set by the judge based on a sentencing grid established by the legislature on the recommendation of the Sentencing Guidelines Commission. As originally adopted, the act eliminated extensive periods of probation or parole, and instead required a fixed sentence to be set by the judge from a fairly narrow sentencing range determined by the crime committed and the offender's prior criminal history. The sentence may contain a specified period of confinement, a fine, restitution, and certain other conditions. Mandatory treatment programs were prohibited.,
Exceptional sentences above or below the standard range can only be imposed upon a showing of substantial and compelling reasons. More judicial discretion is allowed for first time offenders, who may be placed on community supervision, with imposition of their sentence waived subject to various conditions, including rehabilitation efforts. Offenders sentenced to one year or less are also eligible for partial confinement or community service alternatives.
The traditional system of early release for "good time" was originally continued in the SRA as partial confinement in community custody for up to one-third of the sentence. This early release time has now been reduced to a maximum of 15% for certain violent felonies, and is inapplicable to certain mandatory minimum sentences, in response to the federal requirement for "truth in sentencing" as a condition of funding state prison construction, and other factors.
Numerous changes in this sentencing structure have been made over the years since the adoption of the SRA, some in the direction of rehabilitation, others strictly punitive. To assist in rehabilitation, the Special Sex Offenders Sentencing Alternative (SSOSA) was added early on, under which certain sex offenders can be granted a suspended sentence conditioned on treatment. In 1990, the Sexually Violent Predator Act was passed, providing for the indefinite civil commitment of persons convicted of or charged with sexually violent offenses who suffer from a mental abnormality or personality disorder, and are about to be released from custody.
In 1995, the Drug Offender Sentencing Alternative (DOSA) was added, providing a sentencing option for drug offenders under which one-half the normal mid-range sentence is to be served in confinement with treatment, with the balance of the sentence in a community custody situation, subject to reimprisonment if community conditions, including treatment recommendations, are violated.
A "boot camp" sentencing alternative was established in 1991 for certain non-violent offenders, who are given credit for three days for each day served in the Work Ethic Camp Program, and then placed in community custody for the remainder of their sentence.
In addition to restructuring the sentencing system from primarily rehabilitative to primarily punitive, in nearly every legislative session since adoption of the SRA the legislature has increased criminal penalties, despite stable or falling crime rates.
In 1993, the "Three Strikes And You're Out" Initiative was passed by the voters, providing life imprisonment without possibility of parole for persistent offenders. The legislature then added a "Two Strikes" provision for sex offenders, the definition of which was broadened in 1997.
The 1999 legislature adopted two important measures which constitute a partial return toward a parole system and recognition of the need for rehabilitation. The first is the Community Custody Act, ESSSB 5421, which provides for a range of community custody time to be served after a confinement sentence for certain offenders. The community custody range and conditions, including mandatory rehabilitative treatment, are imposed by the court based on the results of a risk assessment. During community custody, the Department of Corrections (DOC) can release the offender at any time within the custody range, and can also return the offender to confinement for violations of conditions after an administrative hearing. The Sentencing Guidelines Commission is to recommend to the legislature specific ranges for community custody sentences by Dec. 31, 1999.
The second important piece of 1999 legislation is the drug bill, ESSHB 1006, which allows mandatory treatment as part of the sentence for any crime, upon a finding that chemical dependency has contributed to the offense, and expands eligibility for the Drug Offender Sentencing Alternative program.
Although the juvenile court has always had discretion to decline jurisdiction and transfer a juvenile to adult court in the best interests of the public or the juvenile, the Youth Violence Act of 1994 took a major step away from separate treatment and a rehabilitative approach for juveniles, providing for the mandatory processing of certain 16 and 17 year old serious offenders as adults, and substantially increasing penalties for violent offenders. These measures were expanded by the 1997 legislature, further reducing judicial discretion.
The effects of the described changes in sentencing systems and policies on prison populations in Washington State have been dramatic. The total prison population in Washington State has increased from 4453 in 1980 to over 13,000 today, nearly tripling. The number of offenders under age 18 placed in the custody of the Department of Corrections doubled between 1994 and 1995, largely because of the Youth Violence Act. DOC estimates a further tripling of that population as a result of the 1997 legislation.
At the other end of the spectrum, increasing sentence lengths for adults has more than doubled the number of offenders over 50 years old in prison in the last ten years. DOC medical costs in turn are more than double for each offender over 50 compared to offenders under 50.
The makeup of the offender population has also been changing. In 1997, 24% were drug offenders, compared to 4% in 1987. Non-violent offenders made up a quarterof the prison population in 1987, and by 1997 were more than a third.
Washington prisons are currently 50% over rated capacity, despite having added nearly 7000 beds since 1992. Such overcrowding creates unhealthy and dangerous conditions for both inmates and staff.
Although overall felony crimes reported and arrests have decreased since 1990, admissions to adult and juvenile correctional facilities have risen by over 31%. The lengths of sentences have also increased. While violent crime and property crimes have both decreased significantly during that period, drug arrests and convictions have increased 116 % for juveniles and 39 % for adults.
Unless changes are made in both criminal justice sentencing and prosecution policies, including those for drug offenses, there will be further substantial increases in correctional populations in the coming years as a result of policies currently in effect.
The average cost per bed for all levels of correctional security in Washington state is approximately $24,000 per year. In addition, each new medium security bed costs about $100,000 to construct, not counting substantial financing costs. The average cost per offender on community supervision in comparison is approximately $780 per year.
Additional economic costs of imprisonment include the provision of public assistance for offender families, and the inability of most imprisoned offenders to pay restitution to crime victims.
The rising cost of corrections impacts the amount of public funds available for other basic services and public needs. DOC's 1989-91 biennial budget was $428 million, or 6.1 per cent of the state's total general fund budget, which excludes K-12 education. DOC's percentage of the budget has increased each biennium since then and is now at $849 million, over 8 % of the state's general fund budget. In times of fiscal constraint, when more public money is spent on the criminal justice system, less is available for other purposes, and the basic infrastructure suffers.
In addition to the direct present costs to house each imprisoned offender, care for their families, and provide for the damages to victims not compensated by restitution, there is growing interest in calculating the cost of various sentencing or program options in terms of the cost of recidivism, or the future criminal activity of offenders placed in the various programs or settings, a cost analysis which needs to be applied also to incarceration.
For the average household in Washington, the cost of the criminal justice system grew from $683 per household in 1990 to $885 in 1997 expressed in today's dollars. That represents an average increase of 3.8 percent per year above the general rate of inflation.
If Washington State were to decide to hold the line on prison growth, or to aim at reducing prison populations back to or below current prison capacity, what are the possible ways of accomplishing this?
Sentencing Guidelines. One method would be to revise the existing sentencing guidelines to terms within current prison capacity. RCW 9.94A.160 provides that if "an emergency exists in that the population of a state residential correctional facility exceeds its reasonable, maximum capacity, then the governor may...call the sentencing guidelines commission into an emergency meeting for the purpose of evaluating the standard ranges and other standards." The commission may then adopt any revisions it believes appropriate to deal with the situation, which become effective on the date it sets, and continue until modified by the legislature. Since the state correctional system currently exceeds its rated, design and operational capacity, and the fiscal climate does not allow further construction without injury to non-corrections programs, it would be reasonable to ask the sentencing guidelines commission to propose standard ranges calculated to allow the state to remain within that capacity.
Good Time. Another measure which would result in substantial reductions in prison populations would be to reinstate the traditional 30% "good time" early release standard for all prisoners. A study by the sentencing commission at the time good time was reduced projected substantial increases in prison populations due to the reduction of early release time to a maximum of 15% for certain offenders.
Hard Time and Persistent Offenders. Another approach would be to rethink the "hard time for armed crime" mandatory minimum sentences, and the persistent offender provisions for life without possibility of parole. These policies could be eliminated, sentences under them could be reduced, or the offenses to which they apply could be narrowed.
Community Placement for Non-violent Offenders. A major reduction of prison populations could be achieved by providing community management and appropriate treatment for most nonviolent offenders, who currently make up 37 % of all prisoners. Doing so would essentially bring state prisons down to their rated capacity. Providing treatment, rather than imprisonment, for drug offenders, who make up 24 % of all inmates, would also provide substantial cost savings to taxpayers. A comprehensive California study has found that every dollar spent on substance abuse treatment saved taxpayers over seven dollars in reduced crime and health care costs. Drug courts, where drug offenders are diverted to a special court docket for judicially supervised treatment, have been endorsed by the 1999 legislature. Experiments with drug courts in other states and in several Washington counties have proven to be cost-effective, returning $2.45 in benefits for every dollar expended, according to a study released this year by the Washington State Institute for Public Policy (WSIPP).
Increased use of home detention with electronic monitoring, as well as community service, educational programs, job skills training, intensive supervision, and other structured community programs can provide cost-effective alternatives for non-violent offenders, particularly when the costs of broken families resulting from imprisonment are considered.
A Washington State Institute for Public Policy study shows that for every dollar spent on five different juvenile offender programs, including multi-systemic therapy, functional family therapy, aggression replacement training, adolescent diversion, and multidimensional treatment foster care, from $11 to $31 in savings in future criminal justice system and crime victim benefits are realized. On the other hand, every dollar spent on institutional juvenile boot camps is estimated to yield only $.26 in future benefits, less than the cost of the program.
Prevention Programs. Pre-offense prevention programs can also be also cost-effective. The Head Start program returns about $7 in benefits for every dollar invested, through a 50% reduction in arrest rates, lower likelihood of imprisonment, higher wealth, and greater family commitment. WSIPP calculates $1.50 return in crime system and victim costs alone for each dollar spent on the Perry Preschool program and $2.12 for every dollar spent on Big Brother/Big Sister programs. Recreation and similar community prevention programs have also been effective in lowering crime rates at relatively little expense.
Educational programs are important to crime prevention. A 1996 Rand study showed that a high school graduation incentive program would prevent five times as many crimes as California's "Three Strikes, You're Out" law. However, in 1991, for the first time in our history, U.S. cities spent more on law enforcement than on education.
In-Prison and Released Prisoner Services. WSIPP has determined that job counseling and job search services for inmates leaving prison yield $4 of reduced crime benefits for every dollar spent, while in-prison programs in moral recognition therapy yield $11.48, vocational education $3.23 and adult basic education $2.40. The after-care of prisoners, in which they are provided services to assist in their successful reestablishment in society, is often neglected and is critical to the reduction of recidivism.
The criminal sentencing structure and its effect on the rate and cost of imprisonment in Washington State is complex and changing. Yet it is clear that dramatic increases in imprisonment and the cost of the criminal justice system in the last two decades have resulted from the change to a determinate sentencing system in which judges have reduced discretion as to the sentence imposed, together with the lengthening of sentences, the reduction of earned release time, and an increase in prosecutions, particularly for non-violent drug offenses, despite generally falling crime rates.
As a consequence, even after substantial expansion, our prisons are at 150 % of capacity, prison construction and operation is consuming a steadily increasing portion of our state budget, and a higher percentage of our citizens than ever before are behind bars.
If the citizens of Washington State were to resolve to end further growth
in prisons, and to seek to reduce the population of our state's prisons
to their functional capacity or below, a variety of means exist to do so
at a savings to taxpayers in crime system and victim costs, as well as
a savings of social welfare costs for offenders' families, and without
sacrificing public safety. These available means include revising sentencing
guidelines and mandatory minimums, reinstating earned release policies,
providing structured community placement for non-violent offenders, expanding
in-prison and released prisoner services to reduce recidivism, and the
funding of prevention programs.
Daniel N. Clark,
Friends Committee on Washington State Public Policy
August 26, 1999
