Opening Salvos On Crime Reform

Earlier this year, House Bill 1358, introduced by Judiciary Committee Chairman Terrance Carroll (D-Denver) established a 26 member Colorado Criminal and Juvenile Justice Commission.  Why?  The corrections budget in Colorado has grown to 9% of the general fund, and will grow to 15% in five years at the rate we’re going.  But, this money isn’t producing the desired results.

At a well attended meeting at the University of Denver Law School today, sponsored by the Colorado Bar Association, the opening arguments in the debate were offered by representatives of many of the parties interested in criminal justice reform in Colorado.  Early indications are that the commission’s first priority will be improving the transition inmates make from prison to the community at the end of their sentences.The Commission’s Charge

Formally, the commission’s mandate is basically to engage in evidence gathering and “evidence based-analysis” to look at “the effectiveness of the sentences imposed in meeting the purposes of sentencing and the need to prevent recidivism and re-victimization,” “effective alternatives to incarceration,” “the factors contributing to recidivism,” and “cost effective crime prevention programs”  It is then to report its findings and make recommendations annually, and to prioritize its resources to focus on highest impact options first.

The Discussion

The underlying politics and policy of the debate came out as panelists discussed the commission and the issues that it will have to take up.

Building Political Support

Panelist Phil Cherner, a criminal defense lawyer who served on the last criminal justice commission a decade and a half ago — which went nowhere– neatly laid out the politics behind the commission.

He explained, pointedly, that we are here now with a commission because prosecutors have have gone to capitol hill to oppose every effort to lower any sentence for anything and have almost always won.  As a result, our prison populations are surging.

In Cherner’s assessment of the situation, objective good intentions and evidence mean nothing without political will, and the entire commission process will fail if at the end of the process the prosecutors pull out of the process and oppose the commission’s recommendations, because, in his view, prosecutors have power at the capitol.

The open question is whether a combination of budget pressure, Democratic control of the governor’s office and both houses of the state general assembly, and a growing recognition on the part of prosecutors that there is a need for some change as the passions of the drug war have been set aside in the wake of the new terrorism threat will be enough to change the situation.

Panelist Don Quick, the elected District Attorney for the 17th Judicial District which includes Adams and Broomfield Countty, the former Chief Deputy to Ken Salazar in the attorney general’s office, and the head of the state’s association of district attorneys signaled a willingness to meet reformers half way today.

He too recognizes that there are limited dollars available for criminal justice, a fact emphasized by the existence of TABOR (the Taxpayer’s Bill of Rights taxing and spending limitations on the state budget) and that they are not being well spent with current incarceration strategies.  He described Colorado’s current situation as one in which we have a broken pipe and are trying to solve it by buying bigger and bigger buckets.

Quick argued that given a choice between a status quo sentence that warehouses a prisoner for ten years, and a much shorter sentence with better programs for inmates while in prison and an intensive re-entry program, that as a prosecutor he would favor the latter.

Quick outlined some “front end” issues with juveniles, like truancy intervention, coordinated responses to low level juvenile crime, substance abuse and mental illness, the benefits of after school programs, and the high impact of gangs.  He urged people to note the failure of the education system as a contributor to problems as great as that of the failure of the criminal justice system.  He also cited a statistic showing that 50% of incarcerated juveniles suffer from mental illness (compared to 16% of adult inmates).

But, in his view, a critical one as panelist Phil Cherner is not alone in believing that his association of district attorneys holds all the political cards, a particular political sell for reform is necessary.  Quick believes that it is easier to secure dollars and support for solutions on the “back end” to better manage re-entry of inmates into society, than it is to find dollars for programs on the “front end” and for programs for inmates actually in prison.

In his view, proven success of “back end” programs can then pave a path to adoption of reforms at prevention and intervention phases (before and prior to release) later.

Representative Roger Goodman from Washington State, the keynote speaker, emphasized the importance of building consensus among legal and medical professionals to give politicians the political cover to do what evidence based criminology research has already established.

Panelist and State Representative Terrance Carroll closed out the political piece of the discussion.  He explained that the state legislature is a “reactive body.”  A politicians natural instinct is the read the paper and propose a piecemeal solution to a particular incident even when, the vast majority of the time, laws already on the books could have been applied to address the problem.

Carroll’s hope for the commission is to bring sensibility to the criminal sentencing scheme which he viewes a Byzantine.  The need in his view is to strip it all away and start from ground zero rather than trying to overlay someting on top.  He sees the lack of treatment and rehabilitation options as a moral issue about making people whole in society, and sees a need to restore “fiscal sanity” to the Department of Corrections budget.

Christie Donner, speaking on behalf of the Colorado Criminal Justice Reform Coalition, whose advocacy has put the urgent need for criminal justice reform in Colorado on the map, echoed the sentiments of many present in audience. 

She looks at the process with hope, and with high expectations for the process and for Governor Ritter.  She wants to fuel public pressure for change.  But, she also expressed the worry that the commission might become a place “where all good ideas go to die” and that it might provide an excuse to shut down legislative action until it issues a report.

Time will tell.

Colorado Problems

Terrance Carroll and Mr. Quick agreed that the problem is Colorado was not excessive judicial discretion or regional disparities, the forces that drove the first round of sentencing commissions, such as the one in Washington State, and the United States Sentencing Commission to create grid systems.

Colorado law already places considerable limits on judicial discretion Caroll explained, and both Mr. Quick, representing prosecutors, and panelists more aligned with the interests of incarcerated persons, were open to widening, rather than narrowing judicial discretion.  Terrance Carroll, speaking from the point of view of a legislator, also made the point that the legislature’s ability to predict the fiscal impact of sentencing changes as well as is reasonably possible, is not a serious problem.

The panelists also agreed that the criminal justice problems faced by Colorado’s criminal justice system differ significantly from the federal criminal justice system which was contempted for the poor operation of its sentencing guideline system and for its indiscriminate and inappropriate use of mandatory minimum sentences.

A Focus On Recidivism

G. M. Smith, newly appointed the the state division of criminal justice, after eight years as an elected district attorney for El Paso and Teller Counties, and twenty-two years in all laid out a portrait of who is incarcerated now, and what kinds of problems are particularly acute.

She noted that 44% of men and 25% of women in prison are there for violent crimed (as defined by the department of corrections, not the legal definition of a “crime of violence” which is narrower), and that a study in El Paso County in the early 1990s had shown that most people sentenced to state prison had been convicted of two or three felonies, first.

Mr. Quick emphasized the fact that most district attorneys do not use habitual offender statutes and other prosecutorial discretion to the full extent allowed by the law (his office used that authority just 30 times in 4,000 recent felony prosecutions), and that those in prisons are overwhelmingly either violent crime offenders, or are repeat offenders.  He sought to shatter that notion that prison sentences for first time drug possession offenders are the norm in Colorado.

Ms. Smith, speaking as the representative of the state bureacuracy, noted that lack of resources is a key issue, with San Carlos, the state institution geared to deal with seriously mentally ill inmates already bursting at the seams.  She noted that the state department of corrections doesn’t have nearly the amount on information about inmates that judges receive in a pre-sentence report, which impairs the state’s ability to develop good evidence about what factors matter to inmate success.

Ms. Smith also echoed the sentiment of Mr. Quick (a politically crucial point given that she was the closest thing to Governor Bill Ritter’s proxy in the room), that a good place to being would be with the “discrete population” of people who are re-entering the prison system through parole revocations, which is a group of people that the system has a handle on.  The goal, she explained was to determine “once they are out, how to keep them out.”

She noted high failure rates (40%+) for those on probation, in community corrections (both diversion programs and transition programs) and on parole, and called these failures “unacceptable.”  She then elaborated on what is driving those failures, which will be discussed in a second article here at Colorado Confidential.

In connection with the discussion of recidivism, a young man from the audience who had served 17 years of a 36 year sentence for a murder committed as a juvenile testified to the ability that college courses he took in prison gave him to turn his life around and return to the community as a productive citizen.

Other Problems

There was a consensus underlying the panel discussion and the dialog with the audience that mental illness, substance abuse (and in particular alcohol more so than illegal drugs), lack of education or skills, and as one former inmate in the audience discussed the problem “failed lives.”

Two pervasive and intertwined issues throughout the debate were drugs and race.

Panelists argued that the greatest amount of discretion that impacts race comes furthest down in the process.  For example, the neighborhood with the most calls for police service in Denver comes from Southwest Denver around Bear Creek and Bear Valley where many public safety officials reside, but most arrests take place in predominantly minority portion of the North Denver Park Hill, Skyland, Cole and Whitter.  Arrests also don’t track the neighborhoods with the most crime reports.  Once a case gets to a judge for sentencing, Colorado affords relatively little discretion.

Representative Goodman, from Washington, noted that while crack use accounts for only 10% of the illegal drug market in greater Seattle, that 70% of drug arrests were of young black men in possession of half a gram of crack who were basically living on the streets, something Washington State has addressed with drug courts that focus on treatment.  He noted the success of similar approaches to drugs in Switzerland, Germany, the Netherlands and Spain, where the focus is on getting addicts off the streets, treating addictions in a safe medical environment, and helping them to turn around their lives.

In another Washington State experiment, the 75 most expensive, ienbriate men were given their own appartments and allowed to drink, costing the city $12,000 a year, instead of the  $50,000 a year spent to treat them in emergencies rooms, jails and cemetaries.  Denver has conducted a pilot program under the rubric of “housing first” with similar success, but less of an emphasis on permitting alcoholics to drink.

Overall, the widely expressed sentiment was that a more treatment oriented, theraputic model worked better for alcoholics, drug addicts, mentally ill inmates and juveniles. 

Christie Donner, for example, offered a compelling account of a woman who “failed” in an alternative treatment/education oriented program as a result of her prostitution arrests, which she hated and was skeptical of at the time, but a year later wrote the judge to explain how, once the education and treatment she had received sunk in, some time later, it changed her life and put her back on the track to a successful life.

As one audience member put it: “Where is the evidence that a punitive approach works?”

Opposition to private prisons was another recurrent theme from the audience, although Terrance Carroll recognized them as a necessary evil, and none of the panelists offered any way to reform them out of existence or address the problem, other than a reduction in prison populations in the state generally.

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