Prison for DUI

The Arizona Republic
HEADLINE: Inmate Overcrowding Hits Dangerous Level
DATE: October 17, 2003
By Amanda J. Crawford and Bill Hart

Drug users, drunken drivers (DUI), probation violators and other non-violent offenders are crowding into understaffed Arizona prisons in record droves, fueling a dangerous and unprecedented crisis.

The state's prison population has grown nearly seven times as fast as the state's population over the past two decades as inmates who receive little if any rehabilitation return to the lockup again and again.

With 4,200 inmates over capacity and the potential for danger if officers lose control, more and more criminal-justice experts, politicians and judges are demanding changes in how the state doles out justice.

"Clearly what we are doing now just isn't making sense," said Rep. Bill Konopnicki, R-Safford, who heads a group of legislators examining sentencing alternatives. "We take people who do things we don't like and turn them into hardened criminals."

The Arizona Legislature will meet in special session Monday to consider, in part, Gov. Janet Napolitano's proposed $26 million short-term bailout of the prison system.

But critics are calling for more sweeping changes to policies they say have led to unnecessarily long terms for drug-addicted, uneducated and unskilled criminals who too often return to the streets worse off than they went in. "It is beginning to dawn on people that we've been putting more and more people away longer with fewer (rehabilitative) services," said Professor John Hepburn of Arizona State University.

The debate is raging in dozens of other financially struggling states, where the response has been to ease mandatory sentences, reduce drug penalties, promote alternatives to prison and release inmates early.

Even some conservatives are rethinking the "tough on crime" policies of the past 25 years as they face the soaring costs of maintaining about 2 million prisoners nationwide.

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"The systems that most states have built up are very large and expensive," said Dan Wilhelm of the Vera Institute of Justice in New York City.

"When times were flush, it was a politically painless policy to pursue. Now the choices are much more difficult."

In addition to pressing for changes in mandatory minimum sentences, better rehabilitation programs and prison alternatives, reform advocates also say the sentencing code needs to be examined to eliminate unintentional oddities. For example, viewing child pornography on the Internet carries mandatory consecutive sentences. The result: Those who view pornography sometimes face longer prison terms than those who molest children.

But not everybody agrees that Arizona must make major changes to its criminal-justice system. Some say building more prisons is the answer. Napolitano wants more than a half-billion dollars to add 9,134 new prison beds over the next five years, while some Republican legislative leaders think private companies can build and manage prisons more cheaply than the state.

Maricopa County Attorney Rick Romley warns that financial considerations should not override public policy and safety concerns.

"We must consider building more prisons," Romley said. "No one's showed me that the wrong people are in prison."

Professor Michael Block of the University of Arizona said he does not believe the prison system is a mess.

"Carrying out punishment is expensive, but there are a lot of bad actors in this state who usually did some pretty bad things," he said.

Constantly growing

Although possible solutions are up for debate, most agree that Arizona's prison overcrowding problem cannot go unchecked. The inmate population, now at more than 31,000, grows by an average of 160 inmates per month. Some of them are housed in temporary beds in hallways, tents and dormitory double-bunks, a situation that endangers officers, other prisoners and, potentially, the public at large.

"We are dangerously overcrowded," said Dora Schriro, state corrections director. "This is pushing the system far further than it should be pushed."

The overcrowding does not appear to be merely a reflection of Arizona's rapid population growth. From 1980 to 2000, the state's population grew by about 90 percent, from 2.7 million to 5.1 million. Arizona's inmate population grew by about 600 percent, from 3,859 inmates to 26,747 inmates.

The Department of Corrections budget has risen from $32 million in 1978 to $638 million this year, fueled in part by Arizona's high incarceration rate. At 513 per 100,000 residents, it is the highest of the Western states and considerably above the national average of 427. In fiscal 2003, four of five prison commitments in Arizona were for non-violent crimes.

Most experts attribute the rapid growth in the prison population to several factors: mandatory minimum sentences, longer sentences, abolition of parole, the war on drugs and tougher prosecution of probation violators.

Over the past 25 years, "tough on crime" policies have swept the country. In Arizona, two major rewrites of the criminal law went into effect in 1978 and 1994. These reforms, as well as subsequent laws, reflected attempts by the Legislature to ensure that criminals received similar prison terms for the same crimes and to restrict judges said to be soft on crime.

The initial changes established mandatory prison sentences for many serious crimes, especially for violent criminals and repeat non-violent offenders. The truth-in-sentencing provisions of 1994 abolished parole and required that all offenders serve at least 85 percent of their sentences.

The result: more prisoners serving longer terms. Since 1986, the earliest year for which corrections data are available, the average time served by an inmate in Arizona's prisons has risen to 33 months from 24 months.

Sources of discontent

As Chief Judge Colin Campbell of Maricopa County Superior Court put it: The prison system began taking more and more prisoners in while letting fewer out.

"If we keep feeding the front end and locking up the back end," Campbell said, "we'll just keep targeting more capital-improvement money every (legislative) session."

Another source of discontent for judges and others is the evolution of punishment policies that have shifted more decisionmaking power to prosecutors at the expense of judges.

This is because prosecutors usually have leeway in deciding exactly what charge to bring against a suspect and, thus, can choose to impose a charge that carries a mandatory minimum term or one that permits probation. If a prosecutor chooses a charge carrying a mandatory term, the judge usually must send a convicted person to prison whether the judge wishes to or not.

"(Lawmakers) really do need to look at the mandatory sentences," Campbell said. "Frankly, I think judges should be given more discretion; that's why we're elected to office."

The concern reaches to the highest level. In August, U.S. Supreme Court Justice Anthony Kennedy said transferring discretion from a judge to a prosecutor is "simply unwise."

"In my view our resources are being misspent, our punishments are too severe and our sentences are too long," Kennedy said. "I accept neither the wisdom, the justice nor the necessity of mandatory minimums."

Justice Stephen Breyer recently echoed these sentiments, saying other justices, including Chief Justice William Rehnquist, shared his views.

War on drugs

Drug laws are the category of offenses that critics say are most ripe for review nationwide. In the past few decades, the crackdown on drug possession and trafficking at all levels of law enforcement has sent unprecedented numbers of mostly non-violent offenders to prison. Nationally, the war on drugs costs more than $40 billion a year and results in more than 1.5 million arrests, according to the non-profit Drug Policy Alliance.

During the past fiscal year, about 18 percent of prison entries in Arizona were for drug offenses. As of June 30, about 1,600 offenders were behind bars for possession, an additional 3,900 for dealing. Since 1986, the average time served for a drug offense has increased to 34 months from 23 months.

Arizona voters addressed the debate in 1996 by approving substance abuse treatment instead of prison for first- and second-time drug possessors. In 1999, this law saved the state $6.7 million by diverting 390 inmates from prison to treatment, according to a study by the state Administrative Office of the Courts.

But Romley says drug offenders belong behind bars.

"The ones that are on cocaine and marijuana are the ones who beat their children," he said.

Still, advocates of sentencing reform say rigid prosecution policies are filling up prisons needlessly.

"The vast majority of crimes are drug-related," said Judge Ronald Reinstein of Maricopa County Superior Court.

"As a judge, you look at a individual up for selling a rock (of crack cocaine). The presumptive sentence is, say, five years in prison, but you have to ask yourself, 'Does this guy need this? He's basically an addict.' "

DUI offenders are another category of non-violent offenders that are filling up state prisons. In fact, the state plans to build a 1,400-bed private facility in Kingman just for DUI offenders. In 1986, the average person imprisoned for DUI served eight months. Now, the average term is 18 months. In fiscal 2003, about 18 percent of all inmates entering state prison were there for DUI. As of June 30, there were 2,577 inmates in prison for DUI.

Konopnicki's group is expected to recommend stiffer initial fines for DUI to deter offenders from repeating. Now, the fine for first-time DUI is low - at $250, it is less than some speeding tickets - but repeat offenders can be sentenced to many years in prison.

Widening the net

Advocates say drug offenses, DUI and other non-violent crimes may be better punished through community-based programs like home arrest, electronic monitoring, intensive probation and mandatory treatment that cost less than the average $20,000 a year it costs to imprison, feed and take care of each inmate.

Donna Hamm of the Tempe-based Middle Ground Prison Reform said the state should "widen the punishment net so that there are more available punishments."

These alternatives allow offenders, in some cases, to stay with their families, work and continue to pay taxes without the collateral costs of prison.

Rudolph J. Gerber, a retired Court of Appeals and Maricopa County Superior Court judge, said as a trial judge he sent too many non-violent offenders to state prisons only to see them become more of a threat to the community.

"They would go to the slammer, have contact with hardened criminals and come back worse than they went in," he said.

Most officials agree that Arizona's prison system does little to rehabilitate inmates. The Department of Corrections estimates about half of all offenders return to prison within three years of release.

Within prison, corrections Director Schriro estimates that 75 percent of inmates need substance abuse treatment or education but that only 23 percent are getting it. Schriro wants to require inmate participation in core competencies like obtaining a general equivalency diploma, substance abuse treatment and work skills.

But, to reduce its budget, the department eliminated funding for substance abuse treatment the past two years, a program that received $1.2 million a year in the late 1990s. The Legislature has also transferred $5 million out of inmate drug treatment and alcohol abuse funds from fiscal 1999 to 2003, according to the Corrections Department.

Schriro wants to reduce the number of offenders imprisoned not because of new crimes but because of technical violations of their probation or parole, such as failure to attend meetings and positive drug tests (nearly half of all prison commitments last year).

For people at risk of revocation, she wants to employ a "continuum" of intermediate sanctions including home arrest, intensive probation and short prison stays coupled with intensive rehabilitation.

More than 30 other states have moved recently to alter their sentencing or corrections policies, according to the Vera Institute of Justice. Michigan eliminated most of its mandatory minimum sentences for drug offenses.

Washington significantly reduced sentences for all drug offenses. Alabama, Louisiana, Indiana and other states have promoted alternatives to prison.

"Nationally, there's a greater openness to sentencing and drug reform than we've seen in a long time," said Marc Mauer of the non-profit Sentencing Project in Washington, D.C.

"That's because the cost has kicked in during the past few years. The tough-on-crime laws of the '80s came with a considerable cost."