TESTIMONY. Senate Judiciary Committee. Public Hearing on Prison Overcrowding. Pennsylvania Commission on Sentencing

Transcription

1 TESTIMONY Pennsylvania Commission on Sentencing Senate Judiciary Committee Harrisburg Location: 408 Forum Building Capitol Complex Mail: PO Box 1045 Harrisburg, PA Phone: Fax: URL: Public Hearing on Prison Overcrowding North Office Building Hearing Room #1 Harrisburg, PA Mark H. Bergstrom Executive Director Rep. Frank Dermody Chair Sen. Mary Jo White Vice Chair Mark H. Bergstrom Executive Director

2 Good morning Chairman Greenleaf, Chairman Leach, and members of the Senate Judiciary Committee. I am Mark Bergstrom, Executive Director of the Pennsylvania Commission on Sentencing. Thank you for providing this opportunity to testify about prison overcrowding in Pennsylvania, and to suggest a number of steps that could be taken to promote a more effective and efficient use of correctional resources. Following my prepared testimony, I will offer a brief overview of the findings and recommendation from the Commission s recent study of mandatory minimum sentences (HR12). Prison populations are driven by two factors: admissions and length of stay. Decisions to incarcerate at sentencing or to recommit following a parole violation impact admissions; decisions regarding the minimum sentence, parole release and back-time for revocations impact length of stay. During the past ten years, while Pennsylvania s civilian population remained fairly stable 1 and its crime rate dropped, 2 the Department of Correction s population increased 37%, from 33,553 inmates in 1997 to 46,028 inmates in 2007; as of October 31, 2009, the DOC population was reported to be 51, One factor contributing to this increase is enhanced law enforcement and prosecution. Between 1997 and 2007, the number of criminal incidents reported to the Commission increased by 40% (1997 = 69,618; 2007 = 97,483), with drug violations representing a greater portion of all sentences reported, from 17.3% in 1997 (12,094 criminal incidents) to 21.9% in 2007 (21,435 criminal incidents). The reported use of mandatory minimum sentences also increased, from 784 mandatory sentences in 1997 (364 for drug mandatories) to 1,676 in 2007 (1,016 for drug mandatories). 4 In recent years, the percentage of cases sentenced to the Department of Corrections has remained stable: approximately 14% of all criminal incidents reported to the Commission and 1 U.S. Census (1997 PA estimate = 12,020,000; 2007 PA estimate = 12,432,792). 2 UCR (1997 = per 100,000; 2007 = per 100,000); property (1997 = 2,989.4; 2007 = 2,361.3). 3 PA Department of Corrections (1997 Annual Report; 2007 Annual Report; website). 4 PCS Annual Reports ( ); 1990 = 62,517 incidents; 2008 = 101,576 incidents (145,912 offenses). 1

3 approximately 12% of the individuals sentenced, although a greater portion of these cases are drugrelated offenses. And, while the average (mean) minimum and maximum sentences have fluctuated, they remain at or below earlier levels, 5 due in part to the shorter sentences for drug related offenses offseting the increased sentences for violent and repeat offenders. A substantial number of offenders confined in state facilities could be diverted safely to other programs or institutions. The cause of the current prison overcrowding was identified nearly two decades ago in the aftermath of the disturbance at Camp Hill SCI 6 : the real problem is that the state policies in Pennsylvania which were intended to get tough on criminals have resulted in the increased sentencing of offenders to prison or jail with little regard to either the cost or the effectiveness of incarceration. 7 Since a dramatic increase in criminal activity is not the reason for the Commonwealth s corrections overcrowding problem, we have concluded that Pennsylvania has reached this overcrowding crisis through a series of policy decisions that received broad-based support since the late 1970 s. While recently enacted boot camp and intermediate punishment legislation have signaled a modest mid-course correction, the basic policy response to crime is still imprisonment. 8 And the solution remains the same as then, a course of action described then as an alternative to the imprisonment policies of the 1980 s : While this public investment is justified to keep a dangerous, violent person off the streets, there are many other situations where alternative punishments are sufficient and certainly more cost effective We believe, as does the public, that doing time in 5 PCS Annual Report 2008 (Figures H, I), p See as examples: The Final Report of the Governor s Commission to Investigate Disturbances at Camp Hill Correctional Institution (December 21, 1989); Pennsylvania Commission on Corrections Planning, Final Report (December 2003); Chairman s Report, Prison Overcrowding and Alternative Sentencing (Senate Judiciary Committee, July, 1996). 7 Pennsylvania Economy League, Inc. Costs of Corrections in Pennsylvania (May 1993); and Reconsidering Prisons: The Case for New Corrections Policy in Pennsylvania (Capital Perspective, Vol. XXXVI, No. 2, 1993). 8 Pennsylvania Commission on Corrections Planning, Final Report (December 2003), p

4 prison is not the only way or the most cost effective means by which to punish an offender. 9 Mr. Chairman, you have been in the forefront of efforts since then to establish alternative punishment programs and bring about system-wide improvements. The county intermediate punishment programs have a proven track record of diverting jail-bound offenders to community-based alternatives; and the successful completion of clinically appropriate treatment for drug and alcohol dependent offenders (RIP/D&A) has been found to result in lower rates of recidivism. And while still relatively new, the state intermediate punishment (SIP) program holds great promise in providing effective individualized treatment and supervision for drug related state offenders. Unfortunately, the reach and potential impact of these programs is severely limited by a lack of funding and roadblocks to access and eligibility. In 1993, the Commission on Corrections Planning estimated that an investment of $50 million annually would be needed for county intermediate punishments, based on 1992 sentences and 1992 dollars; 10 the current (FY09/10) state funding of county intermediate punishments is $19,859,000, 11 less than 40% of the 1992 estimate. 12 In 2008, 22% of 37,864 eligible offenders were sentenced to county intermediate punishment. 13 Research by the Commission found that sentences to county intermediate punishment effectively replaced sentences to county jails, but expanded use was linked to the availability of state funding. 9 Id., p Id., fn 9. The Pennsylvania Economy League estimated the cost at $36 million: the single-year cost of an intermediate punishment program large enough to bring state prison population into balance with capacity would be $36 million in constant dollars. Costs of Corrections in Pennsylvania (May 1993), p. iv. 11 Governor s Budget Office. Intermediate Punishment = $3,375,000; RIP/D&A = $16,484, In 1992, 68,924 criminal incidents were reported to the Commission; in 2008, 101,576 criminal incidents were reported, an increase of 47.3%. 13 PA Commission on Sentencing. Annual Report,

5 In 1993, the Pennsylvania Economy League recommended the initiation of a program of intermediate punishments for state offenders; 14 enacted by the General Assembly over a decade later, in were sentenced to state intermediate punishment. 16 the state intermediate punishment program was In 2008, 4% of 5,642 eligible offenders One reason for the low utilization is that the prosecution controls the referral process and must agree to any SIP sentence. But even beyond referrals, the list of ineligible offenses is extensive, excluding offenders for participation in SIP due to current or prior personal injury crimes for which probation is the most commonly imposed sentence (e.g., simple assault, REAP, harassment, etc.). In addition to the establishment of numerous sentencing alternatives during the past two decades, the General Assembly last year enacted sweeping changes intended to reform the sentencing, corrections and parole practices in the Commonwealth. 17 This reform legislation, and other legislation being discussed this session, holds the promise of stabilizing the correctional population and costs through better system-wide coordination, improved efficiencies, more reliable and transparent data, and a greater focus on the development, implementation and evaluation of evidence-based programs. However, delays in implementing this legislation may instead result in a further increase in the state prison population, especially in two years when many offenders presently sentenced to county jails will be serving their sentences in state facilities. The Commission on Sentencing was granted expansive new duties under the reform legislation as one part of this effort to stabilize the growth in corrections. The Commission was given new tools to address both admissions to and length of stay in correctional facilities. These responsibilities include: (1) Development of new guidelines for re-sentencing following revocation of probation, county intermediate punishment and state intermediate punishment; (2) Development of new guidelines for county and state parole and re-parole; (3) Development of new re-commitment ranges to be considered following revocation of state parole; (4) Expanded data collection, analysis and dissemination to include all new guidelines and related decisions; 14 Pennsylvania Economy League, Inc. Costs of Corrections in Pennsylvania (May 1993), p. iv. 15 Act , effective May 18, PA Commission on Sentencing. Annual Report, Acts of

6 (5) Expanded education and technical assistance to courts and the Board of Probation and Parole; (6) Evaluation of the newly enacted Recidivism Risk Reduction Incentive (RRRI) program. However, no state funding was provided to the Commission to undertake these new duties; in fact, the Commission s FY09/10 appropriation, along with that of other legislative service agencies, was cut by more than 20%. 18 The Commission anticipates receipt of some federal grant funding, but it will not be sufficient to offset the cut in state funding, much less provide support for expanded duties and data management. While recognizing the Commonwealth s difficult fiscal circumstances, the reforms required to stabilize the correctional population and improve public safety cannot be obtained with halfmeasures and unfunded legislation. In order to effectively address prison overcrowding, support is needed to deal with both the causes and the consequences of the growth in corrections. When the General Assembly created the Commission on Sentencing in 1978, prison capacity was not a concern. In fact, the first edition of the sentencing guidelines submitted to the General Assembly were rejected in part because they were not sufficiently severe. Unlike other jurisdictions, the Commission s enabling legislation does not require it to consider correctional capacity or impact when adopting sentencing guidelines. With the heightened concern about prison overcrowding and related costs, one option to reduce the prison population would be to require the Commission to consider resource utilization when adopting sentencing guidelines. Another option, more fundamental and farreaching, would be to expand consideration of risk and needs at sentencing. While many purposes may be considered by the court when sentencing, the primary purpose of the sentencing guidelines in Pennsylvania is retribution: The sentencing guidelines provide sanctions proportionate to the severity of the crime and the severity of the offender s prior conviction record. This establishes a system with a primary focus on retribution, but one in which the recommendations allow for the fulfillment of other sentencing purposes, including rehabilitation, deterrence, and incapacitation 19 Under this desert model, uniformity, proportionality and blameworthiness are key considerations for setting the boundaries of the guidelines, with more serious offenders receiving longer periods of incarceration. Within these boundaries, judges may consider 18 Appropriation to PA Commission on Sentencing: FY07/08 = $1,470,000; FY08/09 = $1,451,000; FY09/10 = $1,159, Pa.Code (a) 5

7 utilitarian purposes such as rehabilitation. Parole in Pennsylvania s indeterminate system is a privilege, not a right; public safety is the primary consideration at parole. Under this predictive model, factors related to recidivism are considered, including actuarial risk and criminogenic needs. When considering these two decisions points together, sentencing has traditionally focused on punishing or holding offenders accountable for past conduct, while parole focuses on the likelihood of future behavior. In recent years, a number of states have incorporated aspects of risk and/or needs assessments into sentencing guidelines, moving their attention from punishment to public safety, and resulting in reductions in prison populations and reductions in crime rates. Virginia, a state with a determinate sentencing structure, actuarial risk has been used to identify low risk offenders for recommended diversion from prison. The staff of the Virginia Criminal Sentencing Commission was also required to developed a risk assessment for sex offenders, which is used to increase the upper limit of the recommended sentencing guideline range in relation to the risk of the offender. In Missouri, a state with an indeterminate sentencing structure, the court is provided with information at the time of sentencing on the average sentence imposed for the conviction offense, a risk/needs category assignment, and information on parole rates and time-served for similar offenders. I have had the opportunity to work both of these jurisdictions, and have participate in several national work groups to discuss the incorporation of risk and needs into sentencing guidelines. The consideration of risk and needs at sentencing, and the incorporation of this information into the sentencing guidelines, can be particularly useful in the sorting of offenders for diversion, special programs, and incapacitation. A modified predictive model built on Pennsylvania s existing sentencing guidelines, could formalize consideration of mitigated sentences for low risk offenders and extend consideration into the aggravated ranges for high risk offenders. Greater consideration of certain static risk factors at sentencing could reduce reliance on these factors at parole. However, in order to realize the full potential in this area, efforts need to be directed toward improving the quality and availability of offender information, from the point of initial contact with police through release from supervision, with special emphasis on the preparation of pre-sentence investigation reports which include an assessment of the offender s risk and needs. And, once offenders are identified for program participation, it is important that the programs are available and are operating effectively. In 6

8 I hope this information is helpful as you develop policies and consider legislation and funding priorities. As an agency of the General Assembly, the Commission on Sentencing is available to provide data and information in an effort to improve sentencing practices in the Commonwealth. Thank you again for providing this opportunity to testify. 7