Founded in 1932, the Citizens Budget Commission (CBC) is a nonpartisan, nonprofit civic organization devoted to influencing constructive change in the finances and operations of New York State and New York City governments. This report was prepared under the auspices of the CBC’s Technology and Public Services Committee, which we co-chair. The other members of the Committee are Alan M. Berman, Jeremiah Blitzer, Mark Brossman, Lawrence B. Buttenwieser, Morton Egol, Patricia O’Donnell Ewers, Kenneth D. Gibbs, Daniel J. Gross, Peter C. Hein, Brian Horey, Jerome Hyman, James L. Lipscomb, William McCarthy, Frank McLoughlin, John R. Miller, Philip Milstein, C. Kevin O’Donoghue, Steven M. Polan, Carol Raphael, Edward L. Sadowsky, Lee S. Saltzman, Barbara Shattuck, Larry A. Silverstein, Robert Strickler, Robert V. Tishman, W. James Tozer, Jr., Ronald Weiner and Eugene J. Keilin, ex-officio.
The Technology and Public Services Committee has a mandate to review municipal services and to assess from time to time the performance of State agencies and to recommend ways to deliver public services more efficiently and effectively. During the 1990s the Committee completed a series of studies of service delivery by agencies of the City of New York that both informed the public about the performance of these agencies and identified policy changes that could improve their effectiveness.
In the late 1990s the Committee decided to extend from time to time its work to include agencies of New York State government that were involved in the direct delivery of services. After some deliberation, the Committee chose to begin this State-oriented work with an analysis of the Department of Correctional Services (DOCS). It was selected based on its large and growing budget, its importance, and a belief that the CBC could use its unique perspective to make a positive contribution.
To establish a firm basis for the CBC analysis, we commissioned background papers by two experts in the field of criminal justice. Gail Caputo, currently a Professor at the University of North Texas, prepared a paper on alternatives to incarceration, and Douglas Young, currently of the Bureau of Government Research at the University of Maryland, prepared a paper on national trends in sentencing policy. In addition, Gary Weiskopf of Weiskopf Consulting Services compiled trend data on DOCS services and their program innovations. Andrew Rein, a former CBC research staff member, oversaw this work.
During the course of the analysis, the Committee decided that the scope of the project warranted presenting the findings and recommendations in two parts. This, the first report, deals with sentencing policy and ways to reduce the length of time people spend in prison without increasing the risk to public safety. The second report, planned for release later in 2000, addresses how the DOCS can effectively serve those who are in its custody at a reasonable per diem cost.
CBC Research Director Charles Brecher, together with Research Associate Elizabeth Lynam, undertook the task of preparing this report using the previous work as well as additional research. They had assistance from Valter Paci, a volunteer researcher for the CBC. The CBC benefited from comments on a draft report by Robert Gangi, Executive Director of the Correctional Association of New York. A draft report also was reviewed by Glenn S. Goord, Commissioner of the Department of Correctional Services. While he does not agree fully with the recommendations, we are grateful for his suggestions and clarifications, which permitted improvements in the final version. Nicolette Macdonald, CBC’s Publications Coordinator, prepared the report for publication. An electronic version of this report is available on the CBC’s website at www.cbcny.org.
Bud H. Gibbs
Frances Milberg
May 17, 2000
Imprisonment is a major function of state government. In fiscal year 2000, the State of New York spent over $2.3 billion to house and supervise about 70,000 people at 79 facilities located throughout the state. The State agency responsible for these activities is the Department of Correctional Services (DOCS). The size of DOCS’ budget is determined by two distinct factors¾ the number of people it is required to supervise and the average daily cost of caring for them. This report focuses on how the agency can incarcerate the people sent to its prisons for the right length of time; a subsequent report to be released later in 2000 will analyze how these individuals can be served effectively at an appropriate per diem cost.
In analyzing the effectiveness of current policies, the Citizens Budget Commission has given the highest priority to the objective of promoting public safety. Savings that place the public in greater jeopardy would be unwise. Accordingly, only measures that maintain or enhance public safety are recommended.
The general conclusion of this analysis is that the State of New York could save nearly $100 million annually by avoiding unnecessary and sometimes counterproductive imprisonment. Fundamental social and political changes that are beyond the scope of this report would be necessary to reduce significantly the crime rate and the number of people sent to prisons each year; however, more direct and practicable policy actions can prevent those confined from staying too long. By reducing the length of incarceration for some prisoners and substituting alternative forms of punishment for the latter part of their sentence, New Yorkers could save millions while maintaining or improving their level of public safety.
Between 1973 and 1999, nationwide the number of people in state prisons grew sixfold from 204,211 to nearly 1,137,000. In New York State during a similar period, the DOCS population rose fivefold from 13,832 to 70,001.
The increased use of prisons in New York State is primarily the result of two trends also evident nationally. First, imprisonment has been used as a deterrent to drug abuse. Second, prison sentences have been made longer, with less opportunity for parole.
New York State was a leader in the movement toward harsh penalties as a deterrent to drug sales and use. In 1973 the State Legislature adopted the so-called Rockefeller laws. These revisions to the state sentencing laws reclassified a variety of drug offenses as more serious crimes, and thereby increased the minimum and maximum sentences for these offenses.
The Rockefeller laws had their greatest impact in the 1980s when law enforcement officials began to prosecute drug offenses more vigorously. From 1980 to 1990 the statewide annual number of felony drug arrests rose from 11,880 to 59,049 and the consequent number of annual prison commitments rose from 886 to 10,784. Felony drug arrests averaged around 55,000 during the 1990s, resulting in an average of more than 10,000 prison sentences annually.
The heightened prosecution of drug offenses had obvious consequences for the size and nature of the prison population. From 1980 to 1990 inmates in prison due to a drug offense increased from less than 2,000 or 9 percent of the inmate population to 18,459 or 34 percent. In 1998 the drug offense population was 22,386 or nearly one-third.
A second theme of sentencing changes in the past quarter century has been a movement to make sentences longer for specific crimes. In New York State, such measures were enacted in 1978, 1995 and 1998.
In 1978 new legislation applied the stiff penalty approach established for drug offenses to several types of violent crimes. As a result of these longer sentences fewer of those entering prison were discharged within a few years; accordingly, the number of inmates in DOCS facilities as a result of committing a violent crime rose from 24,289 in 1985 to 36,974 in 1999.
The state’s 1995 sentencing laws were primarily a response to a federal program enacted in 1994. The federal law, known as the Truth-in-Sentencing Law, was intended to encourage states to limit the possibility that a person would serve substantially less time in prison than the sentence imposed by the judge at conviction would suggest. The major reason prisoners were released before serving their full sentence was the granting of parole by a parole board. The 1995 New York law eliminated the availability of parole for repeat violent offenders and it increased the minimum mandatory sentence for first-time violent offenders from one-third to one-half the applicable maximum sentence.
The 1998 changes eliminated parole for first-time violent offenders. It also established a new category of punishment, known as post-release supervision, and created a new program of victim notification when the person found guilty of the crime is released from prison.
The DOCS' Response to Increased Demand
The changes in sentencing laws led to a growing number of people referred to DOCS by the courts. The DOCS responded to this demand in two basic ways. First, it expanded capacity, primarily by building more prisons. Second, it initiated some alternatives to incarceration as a way to handle its bulging population.
Most of the State’s prison capacity has been built since 1970 in response to the surge in new inmates. As drug offenses came to dominate the inflow of new prisoners, medium security facilities were viewed as the best way to house drug offenders, and the DOCS began a program of massive expansion of these prisons. In the 1970s seven such facilities opened, then 25 in the 1980s, and another five in the 1990s.
This prison expansion required a significant capital investment. Between fiscal year 1983 and 1997 the DOCS spent over $1.9 billion on prison expansion and another $548 million for rehabilitation of existing facilities. When adjusted for inflation, the total capital expenditure for this period is nearly $3.2 billion in 1997 dollars.
The expanded facilities have required more staff and operating expenses. The DOCS staff increased from 18,430 in 1984 to 30,662 in 1998; the Department’s operating expenses in the same period grew from $657 million to $2.0 billion.
The DOCS also has implemented three programs that serve as alternatives to conventional incarceration¾ Shock Incarceration (also known as "boot camp"), the Comprehensive Alcohol and Substance Abuse Treatment Program (CASAT), and a drug treatment program at a facility at the converted Willard Psychiatric Treatment Center ("Willard"). Two of the three are relatively successful, while Willard is not.
Boot Camp. New York’s boot camp, known as Shock Incarceration, was authorized in July 1987. The program consists of two parts¾ a six-month institutional program, and then six months of intensified parole supervision with some support services. The institutional program is conducted with military-like discipline, but includes more than physical training and drill. During the six months, enrollees receive 500 hours of physical training and drill, 546 hours of group therapy addiction treatment, 260 hours of academic education, and 650 hours of physical labor doing community service work.
Evaluations point to two benefits from the Shock program. First, those completing the program have an improved chance of successful adjustment to the community upon release. Comparisons between Shock completers and those eligibles who did not enter the program reveal that the Shock completers are less likely to be back in prison after 12 months (10 percent versus 15 percent), after 24 months (28 versus 33 percent), and after 36 months (37 versus 41 percent).
The second benefit from the Shock program is fiscal. There are savings to taxpayers, because the successful Shock participants are in prison for significantly less time than they otherwise would be. The average Shock completer spent 222 days in DOCS custody (including the 180 days in Shock) before being released on parole; without the Shock program this same population would have had to spend an average of 582 days in DOCS custody before becoming eligible for a first parole review. Thus, the reduction in the prison stay averages at least 360 days.
The CASAT Program. The CASAT Program was authorized by the legislature in 1989 with the dual goals of seeking to better serve inmates with drug abuse problems and to reduce crowding in the prisons as the inmate population was increasing rapidly. The program has three phases. Phase I lasts six months, takes place in specially designated annexes of existing prisons, and consists of intensive group therapy as substance abuse treatment. In Phase II, community integration, an inmate is transferred to one of three types of community-based facilities¾a residential drug treatment program, a day treatment program, or one of the DOCS’ work release facilities. Phase III is parole.
For those who complete CASAT, there are two types of benefits. First, they are more likely to adjust successfully after release. Follow-up studies indicate that in the first year after release 7 percent of CASAT completers are back in prison versus 14 percent of all others released from DOCS facilities; after two years the respective figures are 19 and 30 percent, and after three years the figures are 27 and 38 percent. Second, the CASAT program reduces costs to taxpayers. The savings result from the shorter time the people spend in prison and the lower cost of Phase II facilities relative to prisons. The net savings are about $32,000 per participant.
Willard. The 1995 legislative actions lengthening sentences for violent offenses also established a more rehabilitative approach for nonviolent drug offenders. Second-time drug offenders without records of violent crime could be sentenced to a 90-day residential treatment program at the former Willard Psychiatric Treatment Center.
Since opening, Willard has not been filled with the intended inmates. Judges and prosecutors were reluctant to use Willard, because they felt the 90-day program was not effective or harsh enough for second-time offenders. The admissions to Willard predominantly are parolees who violated parole by using drugs; parole officers were permitted to use Willard as an option to re-confinement to prison for drug offenders on parole.
The following four measures would increase the likelihood of an inmate’s successful adjustment to the community while saving public funds and protecting public safety.
An Enhanced R&D Unit. The DOCS can perform more effectively if it designs and implements alternatives to incarceration that substitute for the latter part of prison terms. However, this requires a special effort and additional expertise beyond the staff now available to DOCS. The Department currently has a Division of Program Planning, Research and Evaluation that monitors the characteristics of the inmate population and evaluates the existing programs. However, its scale and scope are less than are required for an enterprise with a more than $2 billion annual budget and a strong need for innovative approaches.
An effective R&D unit needs more than additional staff. Its budget should include resources to support testing of enhanced services for programs and development of new options. Its legal mandate should permit testing of new programs without special legislative approval, and it should be able to modify programs from their legislative constraints on an experimental basis.
Finally, the new unit will require persistent support from elected officials. Innovation and testing of new approaches will inevitably involve taking prudent risks; and risks may lead to some adverse events. If one of many participants in a program commits a crime, that should not be the cause for attacks on the innovations by elected officials and candidates for office. Instead, they should help to educate the public about the necessary risk of innovation in correctional services and the long-run benefits in terms of greater public safety and savings that eventually are derived from such R&D efforts.
Extend the Reach and Effectiveness of Tested Alternatives. The DOCS efforts already have identified two approaches that have demonstrated effectiveness¾ boot camps and residential drug treatment. Each can be applied more broadly.
The Shock Incarceration program could be extended by changing the eligibility criteria. Older inmates, those who committed certain violent crimes, and those with more than three years before parole eligibility could be allowed to qualify for the program.
Expansion of residential drug treatment also seems desirable, but the precise mechanism is not yet clear as multiple approaches are being tested. The CASAT approach has been used with some success for those already having served some prison time, but its completion rate is still relatively low. More experimentation and analysis is needed to identify the best mix of treatment modes and durations and accompanying supportive services for various populations, but residential treatment after some period of incarceration seems to be an effective way to cope with a large number of drug offenders.
Develop New Alternatives for Additional Inmate Groups. The alternatives currently used focus on nonviolent drug offenders, a clearly high priority target. However, the recent sentencing law changes established harsh penalties for those convicted of other offenses, and a growing share of the future inmate population likely will be those convicted of property crimes and violent offenses. While they may well require and deserve extended prison stays, there also should be an effort to develop less expensive options for these groups that still protect public safety.
One promising avenue is the use of new technologies to make home confinement, combined with day reporting for counseling or work assignments, a practical option. In the past home confinement has been used sparingly because of difficulties in enforcement, and associated high rates of violation and absconding. However, new techniques such as wrist or ankle bracelets that transmit to receivers that enter telephone signals to central monitors have made enforcement of home confinement more effective. Continued advancements, using satellite positioning systems, could make programs that combined home confinement during evenings and nights with day reporting for work assignments or other programs a more widespread and enforceable practice.
Older inmates are a group with significant potential for alternatives to incarceration as a mechanism of punishment and supervision. Numerous studies have documented a tendency for criminal activity to decline as individuals grow older, but the trend toward longer sentences has led to a significant number of inmates who are of a relatively advanced age. For example, among the more than 70,000 DOCS inmates at the start of 1999, more than 700 were age 60 and over and another 1,900 were between ages 50 and 59. Many in this group might be subject to alternative sanctions such as home confinement or intensive parole with little added risk to public safety.
Reengineer the Parole System. A prominent feature of recent changes in sentencing laws has been a movement away from parole. Nonetheless, parole remains the principle route out of prison. In 1998 fully 18,355 of the 27,991 people released from prison were granted parole, about two of every three. While the trend may be down, parole is still a major program that requires improvement, not neglect.
The limited public confidence in parole is largely a function of the way it is now administered, rather than intrinsic to the concept. Parole officers in New York State have large caseloads. The average caseload for regular cases is 100 and for intensive supervision is 40; the comparable averages among the 19 states with distinct statewide parole systems are 69 and 29, respectively. New York’s parole officers also have limited access to supportive services, and few options for those they find in violation. As a consequence, fewer inmates are being granted parole, and more on parole are being sent back to prison for violations.
As the parole system in New York State is contracted, it should also be redesigned. New technology should be adopted where practical to replace routine functions and enhance regular monitoring and reporting. The tasks of parole officers should be shifted to following-up on problems and helping with access to supportive services for those most recently released. Intensive supervision during the first six months of parole can help discharged inmates obtain access to drug treatment, counseling and job placements. In addition, the limited guarantees of subsidized work experience used in the intensive parole following boot camp could be extended to other parole populations. Parole officers could also be given disciplinary options such as admission to residential treatment programs as an option to reincarceration when violations are found.
The strategies elaborated above are promising in terms of the lowered recidivism rates, and they also offer the potential for substantial savings. The savings actually realized will depend on the way in which the approaches are implemented and the number of inmates affected. However, the basic elements of the savings are the same: the length of time a felon is kept in a DOCS facility is reduced, and these savings are only partially offset by the added cost of the alternatives to incarceration which replace the latter part of the prison sentence.
The general magnitude of the potential savings is suggested by these figures: The average annual cost of incarceration at a DOCS facility in 1999 was about $29,300 annually or about $80 per day; parole supervision currently costs about $7 per day, and in an enhanced form might cost double that; residential drug treatment costs about $43 per day. Thus, each day that drug treatment replaces incarceration saves an average of about $37 per inmate, and each day that intensive parole replaces incarceration saves about $66.
The general scale of the potential savings is suggested by the time served by inmates when they are discharged under current policies. Slightly less than half of those released (48 percent) were serving time for a drug offense. These inmates typically served 24 months. If these inmates became eligible for some alternative to incarceration after one year of prison, then the median might be reduced to 12 months. In place of prison they might spend an average of six months in residential treatment and six months in intensive parole; the net savings would be about $18,540 per discharge or nearly $163 million for all the drug offenders discharged in that year. However, not all these savings might be realized because a large percentage of those discharged to residential treatment will not complete the program and will be returned to prison. The net savings, based on a 40 percent completion rate, would be about $65 million.
About 15 percent of the inmates discharged were sentenced for nonviolent, property crimes. Their median time served was just under 24 months. While drug treatment might be appropriate for some of this group, others might successfully substitute new forms of house arrest combined with intensive parole. If the savings from this approach averaged $40 per day for the last six months of the typical sentence, then the aggregate annual savings would be nearly $20 million.
About one of every four inmates released was convicted of a violent crime. While there is a serious risk to earlier release for this group, pilot programs can determine how public safety can be assured. Given that sentences and time served have been increasing in recent years and that this group is already being discharged to a form of parole involving relatively little supervision, it is possible that some form of electronically monitored house arrest and intensive parole supervision for a portion of their sentence would better serve the goal of public safety. If the median time for this group were reduced by two months and the daily savings averaged $40, then the aggregate annual savings would be nearly $11 million. The combined annual savings from these three groups are $96 million.
Imprisonment is a major function of state government. In fiscal year 2000, the State of New York spent over $2.3 billion to house and supervise about 70,000 people at 93 79 prisons facilities located throughout the state.
The State agency responsible for these activities is the Department of Correctional Services (DOCS). The size of its budget is determined by two distinct factors¾ the number of people it is required to supervise and the average daily cost of caring for them. As will be explained in this report, The the number of people placed in their its charge is determined through policies set largely by other agencies¾ the police, courts and legislature; however, DOCS has some discretion over how long those people remain in prison. In contrast, Tthe average cost of housing and supervision is controlled largely by the managers of the DOCS.
In order for the DOCS to perform optimally, both factors should be properly set. The agency should should be sent and should retain the right number and types and people for an appropriate period of time, and its cost for serving them should be the minimum necessary to achieve satisfactory service standards. The Citizens Budget Commission’s review of the DOCS considers both dimensions of performance. This report focuses on the question of how the agency can incarcerate the people sent to its prisons for the right length of time; a subsequent report expected to be released later in the summer of 2000 will analyze how these individuals can be served effectively at an appropriate per diem cost.
The general conclusion of this analysis is that the State of New York could save over nearly $1200 million annually by avoiding unnecessary and sometimes counterproductive imprisonment. Fundamental social and political changes that are beyond the scope of this report would might be necessary to reduce significantly the number of people sent to prisons each year; however, more direct and acceptable practicable policy actions can prevent those confined from staying too long. By reducing the length of incarceration for some prisoners and substituting alternative forms of punishment for the latter part of their sentence, New Yorkers could save millions while maintaining or improving their level of public safety.
THE GOALS OF SENTENCING POLICY
How can one determine if people spend the right amount of time in prison? Any reasonable answer should be derived from the goals of a prison sentence. Yet Americans have been ambiguous in their penal objectives. Four goals, which are in some ways conflicting, have been put forth and given different relative emphasis in different periods of time¾ deterrence, retribution, rehabilitation, and incapacitation.
Deterrence is the most widely agreed upon goal of punishment generally and imprisonment in particular. Society seeks to punish those who violate its laws in order to deter others from doing the same. Only if some are punished for crimes will other potential criminals be deterred from such acts. By the same logic, a specific individual who commits a crime will be deterred from doing so again if he is punished in the first instance.
Retribution is an effort to "get even." People who harm others should themselves suffer in some way. For this reason society seeks to make the punishment fit the crime; longer prison sentences are imposed for more serious crimes, and in some states execution is used as retribution for some serious offenses.
Rehabilitation is rooted in the belief that people commit crimes because of character flaws or deficiencies in their socialization by their family, schools or other institutions. A period of imprisonment is viewed as a time to "treat" these deficiencies with counseling, training or other services intended to change the individual’s competencies and attitudes. This approach suggests that the "right" length of a prison sentence will vary with the particular treatment needs of the offender, sometimes leading to different sentences for people committing the same crime.
Incapacitation, like rehabilitation, is rooted in a belief that individual traits are associated with crime, but is less optimistic about the ability of some offenders to be treated successfully. Incapacitation is viewed as an appropriate goal for people who are prone to crime and are likely to harm others if not confined by society. For these reasons, long and even lifetime sentences are urged for repeat offenders.
Historically, Americans have shifted in their emphasis among the four goals. Through the mid-nineteenth century, greatest attention was given to deterrence and retribution. A variety of punishments were used (including whippings, stocks, and hangings as well as stockades and prisons). A reform movement began in the 1840s, arguing for the separation of prisoners and the insane with distinct treatment facilities for each. The result of this movement was the creation of networks of separate state mental health and correctional institutions.
For the first 75 years of the 20th century, sentencing policy increasingly reflected the growing emphasis on rehabilitation. States provided various types of educational, training, and counseling services within their prisons. Convicted criminals were given sentences that fit their particular circumstances, and the time they eventually spent in prison would be determined to a large degree by how responsive they were to the treatment program. This practice of "indeterminate sentencing" typically involved a judge assigning a period (say, 3 to 5 years) of possible incarceration. The actual period would be set by prison officials, who could recommend reduced time due to good behavior, and a parole board who could release a prisoner who seemed capable of returning safely to the community after a minimum period of incarceration. Release from prison could come either after serving the maximum time imposed by the judge (serving the goals of incapacitation and retribution) or earlier by convincing a parole board that the individual had responded positively to the treatment program and was ready for return to the community (serving the goal of rehabilitation).
During the last 25 years, public sentiment towards sentencing policy has shifted away from the goal of rehabilitation and more toward other objectives. This can be attributed to four related circumstances. First, there was evidence that the prison rehabilitation programs were not effective. The typical criteria for assessing rehabilitation programs is the recidivism rate; that is, the rate at which people released from prison subsequently commit another crime and return to prison. Recidivism rates were historically high, and evaluations of rehabilitation programs showed no significant impact on this phenomenon. A widely publicized study published in 1974 supported these pessimistic conclusions. The 1,400 page document synthesized all the rehabilitation program evaluations completed between 1945 and 1967; its author subsequently summarized tersely the major finding: "With few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism." Most public officials interpreted the research to mean "nothing works;" instead of initiating efforts to revise or improve rehabilitation programs, the prevailing response was to de-emphasize rehabilitation as a goal of prison management.
Second, the United States suffered an increase in drug use, and public officials embraced criminal sanctions as a response. The underlying philosophy was that prison sentences would serve as a deterrent to both individual consumption of drugs and organized sale of drugs. New York State, under Governor Nelson Rockefeller, was a national leader in this movement, passing in 1973 relatively harsh mandatory sentences for a variety of drug crimes. However, this emphasis on deterrence has not been effective. The threat of stiff penalties has not been associated with a decline in self-reported rates of drug use among successive cohorts of young adults. The even stiffer penalties for those involved in drug sales has not limited the available labor supply for these positions in drug distribution networks, since the risks apparently remain acceptable to numerous people with few alternative opportunities and a desire to obtain high wages quickly. As a trio of experts indicated in a recent study for the Manhattan Institute: "The main effect of imprisoning drug sellers, we believe, is merely to open the market for another seller. Numerous students of drug policy attest to the existence of this ‘replacement process.’"
Third, crime rates rose in the 1970s and 1980s and concerns for public safety led to a strong emphasis on incapacitation as a goal of sentencing policy. One clear manifestation is growing opposition to parole. Given the high recidivism rates, there is almost always a risk that a person granted parole would be involved in a crime within a few months of his release. Ever since the notorious case of Willie Horton (a Massachusetts felon on a prison furlough who savagely beat a man and raped his wife) was taken as proof that the then-governor and 1988 presidential candidate was "soft" on crime, elected officials have been reluctant to take responsibility for the inevitable risk associated with parole. Continued incapacitation is seen as the preferable policy from the perspective of public safety. Similarly, the movement toward "three strikes and you are out" laws that require life sentences for third time felons are evidence of a growing public concern that incapacitation is the best way to promote public safety.
Fourth, contemporary public sentiment, at least as expressed by many elected officials, seeks greater retribution in the form of harsher punishments. This is evident in the recent spate of mandatory minimum sentence laws and in the mandating of "truth-in-sentencing" laws. The creation of mandatory minimum sentences for specific crimes, such as attacks on children or drug sales or possession of weapons in schools, reflects a public judgment that these crimes are particularly offensive and therefore deserve unusually harsh sentences. Truth-in-sentencing laws are primarily a reaction to the perception that indeterminate sentencing has led to unjustifiably short sentences for those convicted of serious crimes. These laws require convicted felons to serve a minimum portion of their sentence before being eligible for parole. Since 1994 a federal program has made available grants to states that require felons to serve at least 85 percent of their maximum sentence; the result is that most states have set this standard and 14 states have abolished parole. The net impact appears to be that those convicted serve a longer time for any given offense (representing greater retribution), but it is not clear whether prosecutors also have responded by seeking convictions for lesser offenses (in order to avoid prison crowding).
Overall, this review of sentencing goals indicates that: (1) Society seeks multiple objectives from its prisons, and these objectives can sometimes conflict. (2) The relative emphasis placed on each goal changes over time, and in recent years rehabilitation has decreased priority while retribution and incapacitation have greater priority. Given these points, it is impossible to identify a permanently "right" set of sentencing policies. However, it is possible to identify policies and practices that serve no goal particularly well, and to identify alternatives that could serve current priorities equally well (or better) at lower cost. Such opportunities exist in New York State.
THE EVOLUTION OF NEW YORK’S SENTENCING LAWS
The national trends described above have been evident in New York State, but New Yorkers also have adapted in unique ways. Between 1973 and 1999, nationwide the number of people in state prisons grew sixfold from 204,211 to nearly 1,137,000. In New York State, the DOCS population rose fivefold from 13,832 to 70,001 during a similar period.
One consequence of this dramatic increase in the prison population is that the United States now has one of the highest incarceration rates in the world. In the United States the total incarceration rate is 668 per 100,000 population. This is just below the rate of 685 in Russia, believed to be the highest in the world. The U.S. rate is well above the rates reported for Western European nations, which range from a low of 60 in Finland to a high of 145 in Portugal, with the Netherlands, Switzerland, Italy, France, Greece, and Germany all in the range between 70 and 90. Japan has a strikingly low incarceration rate of just 37 per 100,000 population.
Within the United States, New York’s rate of incarceration in state prisons of 397 per 100,000 population is below the national average of 423 for state prisons, but well above the average among the Northeastern states of 328. All eight of the other Northeastern states had lower rates than New York ranging from 125 in Maine to 382 in New Jersey. Nine of the 12 Midwestern states had lower rates than New York (the exceptions are Michigan, Missouri and Ohio) as did nine of the 13 Western states. In the South incarceration rates tend to be higher than the national average, and only three of the 16 states had a rate lower than New York.
The increased reliance on prisons in New York State is the result of two trends also evident nationally. First, imprisonment has been used as a deterrent to drug abuse. Second, prison sentences have been made longer, with less opportunity for parole, in response to pressures for greater retribution and incapacitation.
Imprisonment as a Deterrent to Drug Abuse
As noted above, New York State was a leader in the movement toward harsh penalties as a deterrent to drug sales and use. In 1973 the State Legislature adopted the so-called Rockefeller laws. These revisions to the state sentencing laws reclassified a variety of drug offenses as more serious crimes, and thereby increased the minimum and maximum sentences applying to these offenses. The revisions also created new mandatory minimum sentences for those convicted of a second drug offense. The laws also sought to limit plea bargaining for those initially charged with a serious drug felony, and eliminated the possibility of a sentence to community-based treatment rather than prison for most addicted individuals convicted of a drug offense. (The major exceptions are for informants and youthful offenders.)
Initially, the Rockefeller laws had both intended and unintended effects. As intended, those convicted of a drug felony were more likely to be sentenced to prison (33 percent in 1973 versus 55 percent in 1976) and the length of the prison sentence increased as well. However, these laws did not initially swell the prison population because police and prosecutors responded by making fewer arrests for drug felonies, prosecutors agreed to lower changes in some cases, and because felony conviction rates declined as more cases were dismissed and more went to trial. In addition, the greater number of trials led to delays in case processing. (See Table 1.) Between 1973 and 1980 the resulting number of DOCS inmates who had been committed for a drug offenses increased, but only modestly, from 1,488 to 1,983.
The Rockefeller laws had their greatest impact in the 1980s when law enforcement officials began to prosecute drug offenses more vigorously. From 1980 to 1990 the statewide annual number of felony drug arrests rose from 11,880 to 59,049 and the consequent number of annual prison commitments rose from 886 to 10,784. These intense law enforcement efforts coincided with an epidemic of "crack" cocaine use in urban centers such as New York City and were a response to greater violent crime due to such drug use. The crack epidemic is believed to have waned after 1989, but intense prosecution of drug offenses has continued. As shown in Table 1, felony drug arrests averaged around 55,000 during the 1990s resulting in an average of more than 10,000 prison sentences annually.
The heightened prosecution of drug offenses had obvious consequences for the size and nature of the prison population. In 1980 less than 2,000 DOCS inmates were in prison due to a drug offense, only 9 percent of the inmate population. By 1990 the number had risen to 18,459 and represented 34 percent. In 1998 the drug offense population was 22,386 or nearly one-third. If the number of people in prison for drug offenses had been the same in 1998 as in 1980, then the total prison population in 1998 would have been 49,598 rather than 70,031.
The Thirst for Greater Retribution
A second theme of sentencing changes in the past quarter century has been a movement to make sentences longer for specific crimes. In New York State, such measures were enacted in 1978, 1995 and 1998.
In 1978 the State legislature applied the stiff penalty approach established for drug offenses to several types of violent crimes. These laws established longer minimum sentences for many violent crimes, mandated even longer sentences for people committing a violent crime for the second time, and made people convicted of a violent crime for the third time or more subject to a possible life sentence and a very long minimum sentence. The laws also made plea bargaining for those accused of a violent crime more difficult, and made certain juveniles charged with violent crimes subject to prosecution as adults with potential prison sentences.
Law enforcement officials exercise less discretion in enforcing laws against violent crimes than in enforcing drug laws. Most reported violent crimes are investigated and those arrested are prosecuted with less variation in this behavior depending on the political climate. Accordingly, the 1978 laws did not have a major effect on the number of persons found guilty of the violent crimes for which penalties were increased. From 1980 through the late 1990s the number of people sentenced to prison in New York State annually for violent crimes fluctuated modestly, rising from 7,324 in 1984 to a high of 8,661 in 1993 and then falling to 5,827 in 1997.
However, the 1978 laws likely had the intended effect of making those convicted of a violent crime spend more time in prison. As a result of these longer sentences fewer of those entering prison were discharged within a few years; accordingly, the number of inmates in DOCS facilities as a result of committing a violent crime rose steadily from 24,289 in 1985 to 36,974 in 1999.
The state’s 1995 sentencing laws were primarily a response to a federal program enacted in 1994. The federal law, known as a Truth-in-Sentencing law, was intended to encourage states to limit the possibility that a person would serve substantially less time in prison than the sentence imposed by the judge at conviction would suggest. The major reason prisoners were released before serving their full sentence is was the granting of parole by a parole board. Parole boards can release prisoners after they serve a mandatory minimum sentence, and in many states, including New York, parole was virtually automatic well in advance of the maximum sentence if a prisoner served the mandatory time with good behavior. The federal law offered federal grants to states that put in place sentencing programs that required those convicted of violent felonies to serve, on average, at least 85 percent of their full sentence.
The 1995 New York law increased the length of sentences in two important ways. First, it eliminated the availability of parole for repeat violent offenders. Second, it increased the minimum mandatory sentence for first-time violent offenders from one-third to one-half the applicable maximum sentence. However, in recognition of the fiscal implications of longer sentences and of the ineffectiveness of prison as a drug deterrent, the 1995 reforms also created a new alternative for those convicted of drug offenses. Nonviolent drug offenders convicted of a second offense were made eligible for a prison-based drug treatment program conducted at the former Willard Psychiatric Center. If they successfully completed the 90-day treatment program, these second offenders could be released well before completion of their prison sentences.
Table 2 shows the impact of the 1995 law on persons sentenced since then. For violent felony offenses the mean minimum sentence is was up almost one-third from 49 to 65 months between 1993 and 1997; for drug offenses it is was up from 28 to 31 months. Overall the mean minimum sentence for new inmates is was about 10 percent longer, from 34 to 38 months. If this change persists, it would eventually increase the prison population by 10 percent above its level under previous sentencing policies. At current expenditure levels of over $2 billion annually, this means the new 1995 sentencing law policies changes have an annual price tag of over $200 million.
The 1998 changes, popularly known as Jenna’s Law, eliminated parole for first-time violent offenders. It also established a new category of punishment, known as post-release supervision. All violent offenders, after serving their prison sentence, are subject to post-release supervision ranging from three to five years. Finally, the law creates a new program of victim notification. The victims of certain violent crimes can request notification when the person found guilty of the crime is released from prison; the DOCS is responsible for the notification.
The 1995 and 1998 laws, with their longer mandated sentences and elimination of parole for violent offenders, can be expected to continue the trend of keeping violent offenders in prison for longer periods. In addition, the political pressures leading to elimination of parole for violent offenders appear to have influenced the behavior of parole boards in considering the fate of those sentenced before the new laws came into effect and those not convicted of violent crimes. That is, in recent years parole boards have been less likely to grant parole and parole officers have been more likely to cause parolees to be returned to prison because of violations of the conditions of parole.
The dramatic change in the number of parolees returned to prison due to parole violations is shown in Table 3. This number typically had been under 4,000 annually in the 1988-92 period, and then rose steadily to 7,639 in 1998. Presumably, due to the publicity given to crimes committed by people on parole, parole officers were more prone to return individuals for whom they were responsible to prison. In 1998 about one of every five people entering prison was a parole violator.
The number of people released from prison to parole increased over 50 percent from 14,091 to 22,462 in the 1988-94 period. A major reason was the Earned Eligibility Program established in 1987. This initiative, largely an emergency response to increased crowding in the prisons, effectively granted "presumptive parole" to inmates with maximum sentences of under six years who served their minimum sentence without getting into trouble. However, the number of people released from prison to parole fell from 1994 to 1998. The decline is related to more rigorous standards being adopted by parole boards. From 1990 to 1998 the percent of persons granted parole at their first hearing fell from 67 to 50 percent, and the rate for those at a subsequent appearance fell from 73 to 51 percent.
The changes in sentencing policy in New York State in the past quarter-century have led to a current population of approximately 70,000 inmates. Among these individuals, the single largest type of offense leading to incarceration is drug law violations, accounting for nearly one-third of the DOCS population. Violent offenses account for much of the rest of the population, with 19 percent sentenced for robbery, 17 percent for murder and manslaughter, 6 percent for rape and other sex offenses, 4 percent for assault, and 3 percent for use of a dangerous weapon. The property crime of burglary accounts for another 9 percent and other felonies about 7 percent. (See Table 4.)
The typical (median) inmate is serving a minimum sentence of just under four years (and a maximum of about twice that). About 12 percent are serving a minimum of between one and two years, nearly one-fifth between two and three years; another one-fifth are serving a minimum term of ten years or more including 9 percent sentenced to a minimum of 20 years. Approximately 45 percent of the population are serving their first term for violation of a felony, about 52 percent have been convicted of a second felony, and 3 percent have been convicted of three or more.
Fully 95 percent of inmates are male, and the typical prisoner is in his early thirties. About 9 percent of the inmates are less than 20 years old, about one-third are in the twenties, 38 percent in the thirties, and 21 percent are 40 years or older. Fifty six percent did not finish high school; about 40 percent are high school graduates, and about 4 percent have completed some college.
THE DOCS' RESPONSE TO INCREASED DEMAND
The changes in sentencing laws that increased penalties for drug offenses and for violent offenses inevitably led to a growing number of people referred to DOCS by the courts. The DOCS responded to this demand in two basic ways. First, it expanded capacity, primarily by building more prisons. Second, it initiated some alternatives to incarceration as a way to handle its bulging population.
The DOCS operates 79 facilities located in 33 of the state’s 62 counties. About 30 percent of the inmates are in one of 16 maximum security facilities, prisons with cells for one or two people and a high ratio of staff to inmates. (See Table 5.) About 54 percent of prisoners are housed in 34 medium security facilities that accommodate inmates in dormitory style spaces. Another 11 percent of the population are housed in 22 minimum security facilities, which include work release residences from which inmates are free to leave during the day but to which they must return at night. Finally, the 5 percent of the inmates who are female are kept at one of 7 different facilities, including five exclusively female facilities and two facilities (Willard and Lakeview Shock) with men and women.
Most of the State’s prison capacity has been built since 1970 in response to the surge in new inmates. Until the early 1970s most prisons were maximum security facilities with prisoners assigned to individual cells; alternative facilities were relatively small and intended mostly for work release and other special programs. Expansion begun in the era when rehabilitation was a primary goal emphasized minimum security facilities with support programs, and several new facilities fitting this model were opened in New York in the decade of the 1970s. However, as drug offenses came to dominate the inflow of new prisoners, a new approach to prison expansion was adopted. Medium security facilities were viewed as the best way to house drug offenders, and the DOCS began a program of massive expansion of these prisons. In the 1970s six such facilities opened, then 21 in the 1980s, and another four in the 1990s. Most of the new medium security facilities built in this period followed a standardized design and had an intended capacity of 750.
This prison expansion required a significant capital investment. As shown in Table 6, between fiscal year 1983 and 1997 the DOCS spent over $1.9 billion on prison expansion and another $548 million for rehabilitation of existing facilities. Adjusted for inflation, the total capital expenditure for this period was nearly $3.2 billion in 1997 dollars.
It is not surprising that the expanded facilities have required more staff and operating expenses. (See Table 7.) The DOCS staff increased from 18,430 in 1984 to 30,662 in 1998; the Department’s operating expenses in the same period grew from $657 million to $2.0 billion. Adjusted for inflation, the constant dollar growth over the period was $918 million or about 4.3 percent annually. However, the inmate population grew even more rapidly so the ratio of staff to inmates and the constant dollar operating cost per inmate declined during this period.
In fiscal year 1999 annual operating expenses per inmate averaged $29,270. This per inmate cost varies among types of facilities. Data are not available for 1999, but in 1997 the average annual cost at a maximum security facility was $21,499; at a medium security facility, $21,268; and at a minimum security facility, $18, 874.
The per inmate costs cited above do not include debt service attributable to DOCS capital projects. These investments are generally financed with State bonds. In fiscal year 1999 the annual debt service attributable to DOCS was $207.3 million. This represents $2,962 per inmate and brings the total cost per inmate to $32,232.
The decline in real cost per inmate reflects measures the DOCS took to increase capacity in addition to new construction. More intensive use was made of available capacity through the practices of "double celling," "double bunking" and "day reporting."
Double bunking is a technique used at medium security prisons. As noted earlier, most of the medium security facilities were built in the 1980s with a capacity of about 750 based on dormitory style sleeping arrangements. Multiple cots are placed in open areas, and groups of inmates living in these areas can be supervised by a limited number of guards. Double bunking refers to replacing the individual cots with double-decker beds, permitting nearly twice the number of inmates to occupy the same common space. Typically, double bunking increases the capacity of a facility from 750 to about 1,300. Double bunking has been opposed by some corrections officers on grounds it makes supervision more difficult and creates potentially dangerous tensions among inmates. The DOCS does not release data on the number of inmates in double bunking arrangements, but it is used at several medium security facilities.
Double celling is a technique used at maximum security prisons. It refers to the placing of two inmates in a cell originally designed for one. Since the cells are small (about 48 to 62 square feet), this is not considered a desirable practice, but justified because of the shortage of maximum security cells. Accordingly, inmates are not supposed to be in a double-cell arrangement for more than 60 days at a stretch. In 1998 about 1,700 of the more than 20,000 maximum security inmates were in double-cell arrangements.
Day reporting is a technique used for work release program participants at minimum security facilities. These inmates are typically free from the facility for about 14 hours per day to work and engage in other activities; they are required to report back to the facility to sleep. Day reporting (a misnomer) is the practice of having two work release inmates share a place in the minimum security facility; each is required to sleep at the facility only three or four nights per week. In 1999 work release facilities had a population of 2,203.
Instituting Alternatives to Incarceration
With the authorization of State legislation, the DOCS has implemented three programs that serve as alternatives to conventional incarceration¾ Shock Incarceration (also known as "boot camp"), the Comprehensive Alcohol and Substance Abuse Treatment Program (CASAT), and a drug treatment program at a facility at the converted Willard Psychiatric Treatment Center ("Willard"). Two of the three are relatively successful, while Willard is undergoing significant revision.
Boot Camp. New York is one of 34 states that has established boot camp facilities. Its program began in 1987 and has grown to a capacity of over 1,500, representing about one-fifth of the boot camp program enrollees nationwide.
New York’s boot camp, known as Shock Incarceration, was authorized by the legislature in July 1987, and eligibility was expanded by raising the maximum age from 25 to 26 in 1988, to 30 in 1989, to 35 in 1992, and to 39 in 1999. The Shock programs are conducted at four facilities, with one serving women as well as men.
Eligibility for the program is limited to: (a) sentenced inmates and is determined by DOCS rather than judges (it cannot be used by judges as a substitute for probation), (b) those with an indeterminate sentence who are within three years of becoming eligible for parole, (c) those under age 39, (d) those with a history of drug or alcohol abuse, and (e) those who are not serving a sentence for certain designated violent crimes such as murder or rape and have not been found guilty of an escape effort. Completing the first part of the program, which lasts six months, makes the individual eligible for nearly automatic parole. Hence there is an incentive for participation by anyone with more than six months left to their sentence before becoming eligible for parole; those with the full three years left to parole eligibility are able to reduce their prison sentence by 2.5 years.
The program consists of two parts¾ a six-month institutional program, and then six months of intensified parole supervision with some support services. Regular parole supervision continues after the first six months of parole. The institutional program is conducted with military-like discipline, but includes more than physical training and drill. During the six months, enrollees receive 500 hours of physical training and drill, 546 hours of group therapy addiction treatment, 260 hours of academic education, and 650 hours of physical labor doing community service work on projects in conjunction with the state Department of Environmental Conservation. (The four boot camp facilities are in rural areas.) Because the services are more intensive than those at other facilities, the per diem cost at the Shock facilities ($62.36 in fiscal year 1998) is higher than at comparable sized minimum security prisons ($56.42) and about the same as at comparable sized medium security facilities ($64.06).
During the first six months of parole, the Shock participants are supervised by parole officers having a reduced caseload of 25 parolees, compared to a regular caseload of 100. In New York City, the destination of 70 percent of the Shock participants, two special parole offices have been established to supervise them. Parole officers make home visits and administer periodic urine tests for drug consumption. In addition, the DOCS has contracted with nonprofit agencies to provide supportive services to Shock participants during the first six months of their parole. Parolees are referred to the Alcoholism Council of New York for relapse prevention sessions. The Neighborhood Work Project offers unemployed parolees up to 75 days transitional employment at $38 per day. The Vocational Development Program provides job counseling and job development services.
As shown in Table 8, the number of inmates entering the Shock program fell from a high of 3,776 in the 1992-93 period to 2,947 in 1997-98. The decline is due to fewer inmates meeting the eligibility criteria. Among those eligible the trend has been for fewer to refuse to participate and fewer to be disqualified, typically for medical or psychiatric reasons. Among those entering the program, in recent years about 30 to 35 percent were removed (most often for disciplinary reasons) and about 65 to 70 percent typically completed it. In recent years about 2,200 individuals completed the program annually, and fully 98 percent of them were granted immediate parole.
Evaluations by the DOCS point to two benefits from the Shock program. First, those completing the program have an improved chance of successful adjustment to the community upon release. Comparisons between Shock completers and those eligibles who did not enter the program reveal that the Shock completers are less likely to be back in prison after 12 months (10 percent versus 15 percent), after 24 months (28 versus 33 percent), and after 36 months (37 versus 41 percent). Similarly, among those eventually returning to prison, the Shock completers spend more "clean time" in the community before their offense than the comparison group.
The second benefit from the Shock program is fiscal. There are savings to taxpayers, because the successful Shock participants are in prison for significantly less time than they otherwise would be. DOCS data indicate that the average Shock completer spent a total of 222 days in DOCS custody (including the 180 days in Shock) before being released on parole; without the Shock program this same population would have had to spend an average of 582 days in DOCS custody before becoming eligible for a first parole review. Thus, the minimum reduction in the prison stay averages 360 days. The actual reduction likely is higher because the Shock program increases the probability of being granted parole at the first review. Among all inmates the percentage receiving parole at their first review has fallen from 67 percent in 1990 to 50 percent in 1998 (refer to Table 3); among Shock completers the rate is 98 percent.
Calculations of the dollar value of these savings are problematic. Assumptions must be made about how many days are saved due to the higher parole rates, about whether any additional days would have been spent at minimum or medium security facilities (whose costs vary), and about whether DOCS would have had to incur capital costs in order to add capacity for these inmates or whether other measures could have accommodated them. In addition allowance must be made for hard to estimate added costs associated with the Shock program. These include the screening costs, the higher per diem costs at Shock facilities for both those who complete and those who drop out, and the additional costs associated with the more intensive supervision and services provided during the parole period. Using one set of assumptions, the DOCS estimates the average savings per Shock completer at about $30,800. While the assumptions used seem to favor greater rather than lesser benefits, even after reasonable adjustments the DOCS calculations are still likely to show significant savings from the program.
The finding in New York of significant savings from boot camp programs due to reduced periods of incarceration has been replicated in studies of such programs in other states. In fact, this has been a major motivation for establishing the programs in other places. However, the New York finding of improved outcomes for inmates has not been replicated at most other boot camp programs. The studies typically find no significant difference in recidivism rates and other outcome measures between boot camp completers and appropriate comparison groups. The atypical result in New York is attributed by the program sponsors to the relatively intensive services beside physical training provided during Shock incarceration and the intensive follow-up services during the first six months of parole.
The New York State Shock program also has successfully avoided abuses such as those discovered in boot camps operated by other states. In 1999 there were several well-publicized cases of abuse of young inmates in boot camps in Maryland, Arizona and South Dakota. However, each was at a boot camp for juvenile offenders, and New York’s Shock program does not accept juvenile offenders. New York’s DOCS has demonstrated an ability to manage its Shock program without evidence of the types of abuses that have arisen elsewhere.
The CASAT Program. The CASAT Program was authorized by the legislature in 1989 with the dual goals of seeking to better serve inmates with drug abuse problems and to reduce crowding in the prisons as the inmate population was increasing rapidly. As implemented by DOCS, the program has three phases.
Phase I takes place in specially designated annexes of existing prisons and consists of intensive group therapy as substance abuse treatment. This phase lasts approximately six months. In these annexes the ratio of counseling staff to inmates is 1:15; in contrast, the drug counseling programs in other DOCS facilities have a staff ratio of 1:40. Four Phase I facilities were opened in 1990, two more in 1992 and a seventh in 1993. The current combined capacity is about 1,700. Due to the more intensive services and other factors, the average annual per capita cost at an Annex is estimated to be about $3,000 more than the average for all other DOCS facilities.
Phase II of the program is called community integration. An inmate is transferred from an Annex to one of three types of community-based facilities¾ a residential drug treatment program, a day treatment program, or one of the DOCS’ work release facilities. The residential treatment programs are operated by four different nonprofit contractors at sites in New York City and Albany with a combined capacity of 495. Day treatment services are offered by one contractor in New York City with a capacity of 200. In fiscal year 1998, the cost of residential treatment averaged about $15,500 per bed, and of day treatment about $4,200 per slot. The other Phase II participants are assigned to one of DOCS eight work release facilities. The annual per capita cost of these facilities is estimated at $16,000. Successful CASAT participants remain in Phase II for an average of 306 days or about 10 months.
Phase III of CASAT is parole. Those successfully completing community integration are released on parole. Unlike the Shock program, there are no intensified parole services for CASAT participants.
Inmates initially eligible for the CASAT Program are those who: (a) have a documented history of alcohol or drug abuse; (b) have a minimum of 12 months and a maximum of 24 months to eligibility for parole or release; (c) are not deemed to require a maximum security setting and are otherwise eligible for temporary release programs. In 1995 a Governor’s Executive Order eliminated those convicted of a violent offense from eligibility for the program.
The inmates’ incentives to participate in the program are the benefits of the treatment programs and the possibility of quicker release. Since Phase I typically lasts six months and Phase II ten months; those with the maximum of two years until eligibility for release can cut their time to parole by eight months and substitute ten months in a community based treatment program for ten months of prison time.
As shown in Table 9, enrollment in Phase I of the program grew steadily from its inception in 1990 to nearly 4,300 in the 1994-95 year. Following the Executive Order restricting eligibility, new enrollment fell to about 3,200 in the 1997-98 year.
In recent years about four of every five people entering the program completed Phase I. The large majority of those removed from Phase I of the program were removed for disciplinary reasons or because they were performing poorly in the program. A far larger percentage of the participants fail to complete Phase II of the program. The single largest reason for removal during Phase II is drug use (46 percent of those removed), and the second major cause is absconding (36 percent). As a result, during the last few years the overall completion rate for Phase I and Phase II combined (that is, those eventually released on parole) is less than three of every ten people entering the program.
For those who do complete CASAT, there are two types of benefits. First, they are more likely to adjust successfully after release. Follow-up studies indicate that in the first year after release 7 percent of CASAT completers are back in prison versus 14 percent of all others released from DOCS facilities; after two years the respective figures are 19 and 30 percent, and after three years the figures are 27 and 38 percent.
Second, the CASAT program has the benefit of reducing costs to taxpayers. The savings result from the shorter time the people spend in prison and the lower cost of Phase II facilities relative to prisons. Since the average time in Phase I and Phase II combined is 16 months, participants starting when they are two years from the earliest possible release spend eight months less in prison that they otherwise would. This represents a per-participant savings of about $20,000. In addition, the per-person cost of Phase II programs averages about 40 percent of regular incarceration, yielding a savings over those ten months of Phase II of about $15,000. Partly offsetting this combined savings of about $35,000 are the higher costs of treatment in Phase I compared to regular incarceration, but the net savings are still about $32,000 per participant.
The DOCS currently is seeking to expand access to drug treatment for inmates not eligible for CASAT or Shock. A federally funded pilot program provides some treatment for inmates disciplined for drug related violations. If they complete a study program in their cells in Special Housing Units, then they can transfer to a residential program at a maximum security facility. This new program has not yet been evaluated.
Willard. The 1995 legislation lengthening sentences for violent offenses also established a more rehabilitative approach for nonviolent drug offenders. Second-time drug offenders without records of violent crime could be sentenced to a residential treatment program at the former Willard Psychiatric Treatment Center. The treatment program requires 90 days and is followed by parole supervision with parole officers expected to aid parolees in arranging continuing therapy. The 90-day treatment period is significantly shorter than the one-year or more minimum sentence the drug offenders would otherwise receive.
Willard opened in 1995 with an initial capacity of 750 beds and a budgeted cost of $8.6 million or about $2,900 per 90-day treatment. In 1996 the capacity was expanded to 850.
Since opening Willard has not been filled with the intended inmates. In the period from October 1995 to April 1997 Willard had 3,430 admissions, suggesting (based on nine-month stays) an average occupancy of less than 600. Moreover, only 862 of these admissions were newly sentenced inmates referred from the courts. Reportedly, judges and prosecutors were reluctant to use Willard, because they felt the 90-day sentence was not effective or harsh enough for second-time offenders. The remaining admissions to Willard were parolees who violated parole by using drugs; parole officers were permitted to use Willard as an option to re-confinement to prison for drug offenders on parole. In 1998 the DOCS considered ways to revise the treatment program and durations at Willard to make it more acceptable to judges and prosecutors, but these plans were not implemented. Willard now functions almost exclusively as a facility for parole violators referred by their parole officers.
The DTAP Program. The Drug Treatment Alternative-to-Prison Program (DTAP) is not operated by the DOCS, but has significant implications for DOCS workload. DTAP was established by the Brooklyn District Attorney’s office in 1990. It offers residential drug treatment as an alternative to those facing a prison sentence for a second drug offense.
Eligibility for DTAP is determined by the Brooklyn District Attorney’s staff and a nonprofit group, Treatment Alternatives to Street Crime (TASC). Those initially eligible are persons charged with a second felony drug offense, and consequently subject to a mandatory prison sentence. People are excluded based on the situation of the crime (persons suspected of being major drug traffickers, those selling on or near school grounds), the defendant’s background (a history of violence, lack of cooperation or an inability to verify drug use or community ties), or a belief that the promise of treatment is leading a defendant who might otherwise be charged with a misdemeanor to plead guilty to a felony.
From 1990 through 1997, DTAP operated as a "deferred prosecution" model; that is, defendants opted to participate at arraignment, and if they completed the program, then their charges were dropped. Beginning in 1998 the program shifted to a "deferred sentencing" model; that is, defendants plead guilty to a felony before acceptance into the program. This virtually insures that the program serves as an alternative to a prison sentence. The deferred sentencing model also relieves prosecutors of the burden of having to reinitiate a prosecution and again prepare the case if a participant does not complete the program. Eliminating this concern has encouraged prosecutors to use DTAP for a larger number of cases. In addition persons violating treatment rules were previously excluded from readmission, but since 1998 they have been eligible for readmission under some circumstances.
The program consists of long-term residential drug treatment at facilities operated by nonprofit contract agencies. While participants are in treatment, they are monitored by TASC staff; participants who abscond are sought by the District Attorney’s warrant unit. The DTAP employs a job developer, and participants are assisted in finding employment prior to release from residential treatment. Among those completing the program, the average time in residential treatment was 22 months.
In its nine years of operation, DTAP reviewed 3,617 eligible defendants. Of this group, 31 percent refused to participate and 38 percent were rejected. The remaining 1,096 or 30 percent were accepted to the program. Among those accepted, 42 percent failed to complete the program (with the vast majority sentenced to prison for a felony offense), 21 percent are still in the program, and 406 or 37 percent have completed the program.
For those who complete the program the benefits include better adjustment to the community and reduced costs to taxpayers. A comparison study of DTAP graduates and drug offenders who met the DTAP eligibility criteria but did not participate found that three years after release 47 percent of the comparison group were back in prison while 23 percent of DTAP completers were rearrested. The likelihood of taxpayer savings derives from the difference in cost for the average of 22 months in residential treatment compared to the cost for a typical prison sentence for a second-offense drug felony as well as from the additional prison costs saved due to the lower recidivism for those receiving treatment.
New York State’s recent policy has been heavy reliance on imprisonment as a deterrent to drug use and sales, increased minimum sentences for those convicted of violent and nonviolent offenses, decreased eligibility for parole for violent offenders and decreased granting of parole among those eligible, and significant successful experiments with alternatives to incarceration for many drug offenders. For the future, policy initiatives should: (1) enhance the DOCS capacity to develop and test alternatives to incarceration through an expanded R&D unit; (2) extend eligibility for and improve the performance of alternatives such as Shock Incarceration and the CASAT, which are already demonstrated as effective for non-violent drug offenders; (3) develop new alternatives for other inmate groups as well as additional nonviolent drug offenders, (4) re-engineer the parole system so that it can be used with greater confidence for inmates who serve their minimum sentence. In each case the goals are to increase the likelihood of an inmate’s successful adjustment to the community while saving public funds and protecting public safety.
The DOCS can perform more effectively if it designs and implements alternatives to incarceration that substitute for the latter part of prison terms. However, this requires a special effort and additional expertise beyond the staff now available to DOCS leadership. The Department currently has a Division of Program Planning, Research and Evaluation which monitors the characteristics of the inmate population and evaluates the existing programs. However, its scale and scope are less than are required for an enterprise with a more than $2 billion annual budget and a strong need for innovative approaches.
An effective R&D unit needs more than additional staff. Its budget should include resources to support testing of enhanced services for programs and development of new options. Its legal mandate should permit testing of new programs without special legislative approval, and it should be able to modify programs from their legislative constraints on an experimental basis.
The enhanced unit should also be able to develop alliances with other organizations that can offer additional expertise and capacities. It might develop alliances with university-based researchers with interests and expertise in correctional services, and it might develop alliances with correctional departments in neighboring states such as Pennsylvania, Connecticut and New Jersey that also want to test new approaches.
Finally, the new unit would require persistent support from elected officials. Innovation and testing of new approaches will inevitably involve taking prudent risks; and risks may lead to some adverse events. If one of many participants in a program commits a crime, that should not be the cause for attacks on the innovations by elected officials and candidates for office. Instead, they should help to educate the public about the risk of innovation in correctional services and the long-run benefits in terms of greater public safety and savings that eventually are derived from such R&D efforts.
Extend the Reach and Effectiveness of Tested Alternatives
The DOCS efforts already have identified two approaches that have demonstrated effectiveness¾ boot camps and residential drug treatment. Each can be applied more broadly.
The Shock Incarceration program could be extended by changing the eligibility criteria. Older inmates could be made eligible, the limits on those committing certain violent crimes could be modified, or the maximum time to parole eligibility could be raised above the current three years. Any such expansion should be monitored carefully to determine if it undermines the effectiveness of the program or jeopardizes public safety.
Expansion of residential drug treatment also seems desirable, but the precise mechanism is not yet clear as multiple approaches are being tested. Willard, which involves relatively short-term treatment in place of a prison sentence for second offenders, is not seen as a viable approach by many prosecutors. In contrast, DTAP, a longer program averaging 22 months, has served the same population with considerable success in Brooklyn. The CASAT approach of residential treatment lasting six months followed by intensive parole has been used with some success for those already having served some prison time, but its completion rate is still relatively low. More experimentation and analysis is needed to identify the best mix of treatment modes and durations and accompanying supportive services for various populations, but residential treatment after some period of incarceration seems to be an effective way to cope with a large number of drug offenders.
Develop New Alternatives for Additional Inmate Groups
The alternatives currently being tested focus on nonviolent drug offenders, a clearly high priority target. However, the recent sentencing law changes established harsh penalties for those convicted of other offenses, and a growing share of the future inmate population likely will be those convicted of property crimes and violent offenses. While they may require and deserve extended prison stays, there also should be an effort to develop less expensive options for these groups which still protect public safety.
One promising avenue is the use of new technologies to make home confinement, combined with day reporting for counseling or work assignments, a practical option. In the past home confinement has been used sparingly because of difficulties in enforcement, and associated high rates of violation and absconding. However, new techniques such as wrist or ankle bracelets that transmit to receivers that enter telephone signals to central monitors have made enforcement of home confinement more effective. Continued advancements, using satellite positioning systems, could make programs that combined home confinement during evenings and nights with day reporting for work assignments or other programs a more widespread and enforceable practice. New York could partner with technology firms to develop better monitoring options and become a leader in developing and testing such mechanisms.
Older inmates are a group with significant potential for alternatives to incarceration as a mechanism of punishment and supervision. Numerous studies have documented a tendency for criminal activity to decline as individuals grow older, but the trend toward longer sentences has led to a significant number of inmates who are of a relatively advanced age. For example, among the more than 70,000 DOCS inmates at the start of 1999, more than 700 were age 60 and over and another 2,900 were between ages 50 and 59. Many in this group might be subject to alternative sanctions such as home confinement or intensive parole with little added risk to public safety.
A prominent feature of recent changes in sentencing laws has been a movement away from parole. It is seen as not providing any meaningful punishment or any effective supervision. As a result, it can accomplish little by way of rehabilitation or retribution, and sometimes places the public in danger as parolees commit additional crimes.
Nonetheless, parole remains the principle route out of prison. In 1998 fully 18,355 of the 27,991 people released from prison were granted parole, about two of every three. While the trend may be down, parole is still a major program that requires improvement not neglect.
The limited public confidence in parole is largely a function of the way it is now administered, rather than intrinsic to the concept. Parole officers in New York State have large caseloads. The average caseload for regular cases is 100 and for intensive supervision is 40; the comparable averages among the 19 states with distinct statewide parole systems are 69 and 29, respectively. New York’s parole officers also have limited access to supportive services, and few options for those they find in violation. As a consequence, fewer inmates are being granted parole, and more on parole are being sent back to prison for violations.
The parole system in New York State, which has been contracted, also should be redesigned. In planning this effort, some lessons can be learned from the remodeling of New York City’s probation system during the 1994-98 period. Technology, in the form of electronic kiosks capable of recognizing handprints, replaced probation officers to perform routine functions and regular reporting. Probation officers were assigned caseloads based on a need for supervision and counseling, and shorter individual reporting sessions were replaced with longer group counseling sessions for targeted groups of probationers. As a result, a smaller staff was able to handle the probation caseload more effectively.
The same concepts should be applied to the parole system. New technology should be adopted where practical to replace routine functions and enhance regular monitoring and reporting. The tasks of parole officers should be shifted to following-up on problems and helping with access to supportive services for those most recently released. Intensive supervision during the first six months of parole can help discharged inmates obtain access to drug treatment, counseling and job placements. In addition, the limited guarantees of subsidized work experience used in the intensive parole following boot camp could be extended to other parole populations. Parole officers could also be given disciplinary options such as admission to residential treatment programs as an option to reincarceration when violations are found. Again, an enhanced R&D unit could help design and test a new and more effective system of parole. Such an apparatus would help restore public confidence in parole as a means for reducing periods of incarceration while protecting public safety.
The strategies elaborated above are promising in terms of the lowered recidivism rates, and they also offer the potential for substantial savings. The savings actually realized will depend on the way in which the approaches are implemented and the number of inmates affected. However, the basic elements of the savings are the same: the length of time a felon is kept in a DOCS facility is reduced, and these savings are only partially offset by the added cost of the alternatives to incarceration which replace the latter part of the prison sentence.
The general magnitude of the potential savings is suggested by these figures: The average annual cost of incarceration at a DOCS facility in 1999 was about $29,300 annually or about $80 per day (refer to Table 7); parole supervision currently costs about $7 per day, and in an enhanced form might cost double that; residential drug treatment costs about $43 per day. Thus, each day that drug treatment replaces incarceration saves an average of about $37 per inmate, and each day that intensive parole replaces incarceration saves about $66.
In addition, to the extent alternatives to incarceration reduce recidivism, there are further savings. Inmates not re-admitted in the future represent a lower future population to be incarcerated. However, the estimated savings below do not include such avoided costs because they occur in the relatively distant future and because the reduction in the future inmate population is hard to predict given variable findings about reduced recidivism and other factors affecting the future size of the prison population. Nonetheless, it is worth noting that some savings from reduced recidivism are likely, and the estimates presented below are therefore conservative and understate likely gains.
The general scale of the potential savings is suggested by the time served by inmates under current policies (see Table 10). Slightly less than half of those released (48 percent) were serving time for a drug offense. These inmates served an average of over 30 months, but this figure reflects some with relatively long sentences; the median time served is 24 months. If these inmates became eligible for some alternative to incarceration after one year of prison, then the median might be reduced to 12 months. In place of prison they might spend an average of six months in residential treatment and six months in intensive parole; the net savings would be about $18,540 per discharge or nearly $163 million for all the drug offenders discharged in that year. However, as noted earlier, not all these savings might be realized because a large percentage of those discharged to residential treatment will not complete the program and will be returned to prison. Thus, the net savings, based on a 40 percent completion rate would be about $65 million.
About 15 percent of the inmates discharged were sentenced for nonviolent, property crimes. Their median time served was just under 24 months. While drug treatment might be appropriate for some of this group, others might successfully substitute new forms of house arrest combined with intensive parole. If the savings from this approach averaged $40 per day for the last six months of the typical sentence, then the aggregate annual savings would be nearly $20 million.
About one of every four inmates released was convicted of a violent crime. Their average (mean) time served was over 52 months, and the median time was 42 months. While there is a serious risk to earlier release for this group, pilot programs can reveal how great that risk is. Given that sentences and time served have been increasing in recent years and that this group is already being discharged to a form of parole involving relatively little supervision, it is possible that some form of electronically monitored house arrest and intensive parole supervision for a portion of their sentence would better serve the goal of public safety. If the median time for this group were reduced by two months and the daily savings averaged $40, then the aggregate annual savings would be nearly $11 million.
The combined estimated savings from these three groups are $96 million annually. Of course, these calculations are necessarily highly speculative. What will work safely should be determined by careful testing and gradual implementation. It will take several years to achieve fully the potential savings from the Citizens Budget Commission’s recommended strategies. But the illustrative calculations indicate that the savings can be substantial and should be sought aggressively.
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