Smart on crime

Conservatives in such states as Texas and Mississippi embrace reforms that are tough sellers in liberal Massachusetts

several of the nation’s most conservative, tough-on-crime states are spearheading a growing reform movement that’s cutting both crime and prison costs. The dramatic changes taking place in Texas, Mississippi, South Carolina, Kansas, and Kentucky are designed to keep people out of jail, but they weren’t launched because of pro-prisoner compassion. They are emerging from a simple mandate to control burgeoning prison costs, and in response to a 2010 US Supreme Court ruling that ordered California to immediately release thousands of prisoners based on unconstitutional overcrowding.


Willie Horton: The case that haunts Massachusetts.
Photo: Boston Herald

The result is a curious political turnaround: States long notorious for their throw-away-the-key attitudes are abandoning the old campaign slogan “tough on crime” and replacing it with the softer, reform-conscious mantra of “smart on crime.” They are doing away with mandatory sentencing laws for nonviolent crimes, easing penalties for minor parole violations, and investing in treatment and education programs so inmates get the skills they need to avoid turning to crime again once they are released. The approach is working. Fewer inmates are ending up back in prison after they are released. Prison populations are dropping. Prison spending is falling. Crime rates are going down, not up.

Conservatives are jumping on the bandwagon., set up by a Texas research in­stitute, is preaching that conservatives must not only be tough on crime but  tough on crime spending, supporting more cost-effective approaches to public safety. Supporters include Republican presidential candidate Newt Gingrich, former Florida governor Jeb Bush, former attorney general Edwin Meese, and Grover Norquist of Americans for Tax Reform. A map on the Right on Crime website indicates reform efforts are concentrated in the South, but also the Rust Belt and states such as New York, Pennsylvania, Rhode Island, and Vermont.

But not Massachusetts. The liberal Bay State is continuing to pack its prisons with addicted and indigent low-level criminals. A study done for the Pew Center on the States indicates recidivism is significantly worse in Massachusetts than it is in Texas, Mississippi, and South Carolina and on a par with Kansas and Kentucky. The Massachu­setts corrections system is operating at 140 percent of capacity, with one unit inside the Framingham prison for women at 300 percent. At a cost of $47,000 a year for maximum security inmates, the Massa­chusetts corrections budget is currently $536 million and could rise another $45 million next year. Some analysts are predicting the state will need another 5,000 prison beds by 2020.

This tale of two correctional philosophies comes down to politics. Officials in Texas, Mississippi, and the other states are open to new approaches because they aren’t worried their constituents will think they are soft on crime. But Massachusetts officials are still haunted by the ghost of Willie Horton, the convicted murderer who was released on furlough and raped a woman while her bound fiancé was forced to watch. George H.W. Bush used the Horton case to portray Michael Dukakis as a soft-on-crime Demo­crat in the 1988 presidential election, and its impact lingers. Last year, when Dominic Cinelli shot and killed Woburn police officer James McGuire while out on parole, the reaction on Beacon Hill was swift.

Gov. Deval Patrick fired all but two members of the state parole board. Since the new board took over in February, releases have dropped by 20 percent. The Legislature is now considering a so-called habitual offender law, which would bar anyone convicted of three violent crimes from being re­leased from prison. The Senate paired the get-tough language with some fairly mild sentencing reforms, but the House opted for just the habitual offender language. The two branches are now trying to resolve their differences.

Patrick says he favors a balanced approach, one that includes an emphasis on crime prevention and a de-emphasis on minimum mandatory sentences for nonviolent offenders. But he makes no apologies for his tough-on-crime stance. “It’s very important for us to be hard-headed about the perpetrators of violent crimes because it’s very important to be hard-headed about how we protect public safety,” he says. “So that includes tightening our laws to be as firm as possible when dealing with habitual violent offenders.”

Before 2007, Texas was about as hard-headed as it gets. The state was spending nearly $3 billion a year on prisons, probation, and parole. Some prisons were running at nearly 300 percent of capacity. Prison doors seemed to be revolving, with 13,000 parolees a year being returned to prison, many for “technical violations” such as neglecting to perform a required community service like working a day at a soup kitchen. The Texas Legislative Budget Board predicted 17,000 more prison beds would soon be needed.

Texas Republican state Rep. Jerry Madden says the situation was out of control. “Gov. [Rick] Perry laid down the law,” says Madden. “He said: ‘We are not building another prison. Come up with a better idea.’”

Madden joined with Democratic state Sen. John Whit­mire to launch the bipartisan Justice Reinvestment Strategy. Their bipartisan diplomacy quickly convinced the Texas legislature to invest $241 million in substance abuse and mental health programs and adopt initiatives that place more offenders outside prison walls under the supervision of probation and parole officials. The state also re-examined its policy of incarcerating people prior to trial, and dropped mandatory sentences for non-violent crimes.

The results have been promising. Texas officials say billions of dollars in costs have been avoided. Recidivism has fallen by 22 percent. Since 2007, the state’s crime rate has dropped 10 percent. Instead of adding prison beds, Texas for the first time in state history closed a prison, shuttering the 2,000-bed Sugarland Central state prison. “We shifted because of money,” Madden says. “The amazing thing is, we can’t believe how much more we’re getting out of it.”

In the late 1990s, Mississippi opened seven new prisons. Within a decade, its prison population doubled. Its annual corrections budget swelled to $347 million a year. Its sentencing guidelines were draconian: Possession of 30 grams of marijuana, cocaine, or heroin—the equivalent of 30 sugar cubes—drew a mandatory 30 years. Hundreds of people a month were sentenced to maximum security prisons without the possibility of parole.

Corrections Commissioner Christopher Epps had seen enough. “I decided it was time to get everyone to really think about who we’re mad at, and who we’re actually afraid of,” he says. “This tough-on-crime, war-on-drugs mentality had everyone get mad because—somebody has a roach in the ashtray? So what do we do? We run out of prison beds and stop paying attention to the dangerous lunatic who slays people at a convenience store. We have to stop wasting so much money on something that doesn’t fix anyone. It sure doesn’t help a non-violent addict.”

 In 2008, conservative Republican Gov. Haley Barbour campaigned for a second term by stating that “our duty is to live within our means.” Like Texans Whitmire and Mad­den, Epps heard the message, and sprang into action. He began to lobby the state legislature on a daily basis.

“I said, ‘Poverty and a lousy education system are fueling addiction and crime. Put the money into education to stop bringing the poor and uneducated to me,’” says Epps.

His practical strategy of prison alternatives and supervised reentry, combined with Barbour’s thrift, is helping Mississ­ippi shed its once-deserved reputation as a chain gang state. Epps says his corrections budget is down $332 million and the prison population is down by 22 percent. Repeat offenders are dropping. Out of 3,000 people released on parole in 2010, Epps says fewer than 1 percent are back behind the razor wire. “Best of all,” says Epps, “our crime rate has dropped. People are getting their relatives back.”

Epps’s advice to other states? “The only way to make really effective change and stop all this Willie Horton emotional stuff is to have a governor who’s not willing to spend another dime on prison,” he says.

Massachusetts may be at a crossroads with its pending crime bill. The Senate version of the bill would take people who commit three violent crimes and lock them up without the possibility of parole. It would also end the practice of locking up pretrial detainees and reduce—but not eliminate—the minimum sentences mandated for a host of nonviolent crimes. And it would send fewer people to prison by doing away with jail time for many technical probation and parole violations and pare back from 1,000 to 500 feet the zone around schools where mandatory two-year sentences are imposed for drug dealing. When the House took up the Senate bill, it lopped off the sentencing and pretrial reforms and approved only the three-strikes language.

Mary Beth Heffernan, the Patrick administration’s secretary of public safety, says the Senate version of the bill mirrors the legislation the governor filed in February to bring correction costs under control, curb recidivism, and be smarter on crime. “Controlling correction costs is a national problem and it’s time we did more than warehouse inmates without providing opportunities for rehabilitation,” she says.

But many activists pushing for broader sentencing reform are wary of Patrick’s commitment to such a philosophy. Some say former Corrections Commissioner Harold Clarke left for Virginia in 2010 because that state’s Republican governor, Bob McDonnell, was more receptive to reform initiatives. Clarke declined comment.

Those concerns were clearly visible at a fundraiser in November for Massachusetts Correctional Legal Services, which provides legal representation for prisoners. Leslie Walker, executive director of the organization, notices the 50 or so guests at the fundraiser keep saying “no thanks” to jumbo shrimp and free drinks. “Bad mood,” she says. “It’s been years since any of us have seen a worse display of political, public-opinion fears get in the way of rational, cost-effective thinking.” She waves off a waiter with bacon-wrapped scallops. “Lawmakers, especially our governor, have got to stop having such emotional reactions to crimes that are extreme aberrations.”

Boston criminal defense lawyer Pat­r­icia Garin says it’s difficult to understand why Massachusetts is moving in one direction while most other states are moving in the opposite direction. “The shifting tide is Cinelli,” she says, referring to the killer of the Woburn police officer. “That was a tragedy, yes, but the bigger tragedy is that the reaction to such a criminal fluke will compromise public safety by taking an incredibly expensive and inhumane step backwards.”

Sen. Stephen Brewer of Barre, the chair­man of the Senate Ways and Means Committee, did not attend the fundraiser, but he says statements such as Garin’s are over the top. “If we can’t provide for public safety, then what are we doing here?” he asks. “This is a common sense, well-thought-out response to habitual offenders.”

The centerpiece of the Massachusetts Correction Legal Services fundraiser is a panel discussion called “Stem­ming the Tide: What Massachusetts Can Learn From Other States.” The panelists include state Rep. Charles Murphy of Burlington, Garin, former attorney general Scott Harsh­barger, and, by video, retired federal judge Nancy Gertner. Gertner is critical of mandatory sentences, which she says don’t promote fairness or contribute to public safety.  “The more money we put into building walls the less we have to focus on reentry into society and for crime prevention,” she says.

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The lefty crowd at the fundraiser in many respects finds itself more in tune with the Right on Crime approach prevailing in many conservative states than it does with some of the policies being pursued in Massachusetts. Murphy, recently demoted to the House’s back bench by Speaker Robert DeLeo, sums up the mood. “A lot of people here, I think, feel us Massachusetts lawmakers are seriously missing the facts,” he says.  

Homepage photo by Mark Ostow.