Two years ago, Ohio legislators and state officials thought they had finally figured out how to reverse the tide of costly incarcerations in the overcrowded state prisons with the passage of the landmark sentencing reforms in House Bill 86.
But the law hasn’t delivered the promised reductions in new incarcerations and the inmate headcount is again climbing. The state prisons chief said the $1.5 billion prison system will be unmanageable by July 2015 if state leaders don’t reduce the inmate population by boldly rethinking how the justice system handles low-level drug offenders and other nonviolent lawbreakers.
Gary Mohr, Gov. John Kasich’s prisons director, is calling for a major review of the criminal code with an eye toward knocking back some former misdemeanors that have been ratcheted up to felonies over the years through tough-on-crime legislation.
He also wants to take a page from the Ohio juvenile justice playbook and enact a program that would provide state funding to local governments if they sentence minor offenders to drug treatment and other community-based alternatives to prison. The program helped the youth system dramatically decrease its inmate population.
“I don’t think there’s an emphasis on being tougher on crime or softer on crime, but to be more effective with more effective sanctions,” Mohr told the Dayton Daily News.
At the heart of Mohr’s proposals is a growing consensus among liberals and conservatives alike that the so-called war on drugs, with its emphasis on punishment, has led to budget-busting prison costs and too many nonviolent people stigmatized in the job market with felony records, all without solving the root problem of addiction.
Nobody wants to go easy on violent criminals, repeat offenders or those who commit major property crimes. But Mohr and others do want to put minor offenders in nonprison programs that are proven to be effective and to reserve state prison beds for convicts who pose the greatest risks to society.
“For low-level offenders, the war on drugs has been a disastrous failure,” said Ohio Public Defender Tim Young. “It has ignored every bit of evidence and research in the strange belief that imprisonment will cure drug addiction. Until we direct a significant amount of dollars into treatment, we’re going to continue to wallow in this lost war.”
“What the criminal justice system has become is a really big, ham-fisted response to what is really a public health problem,” said attorney Stephen JohnsonGrove, deputy director of the Ohio Justice & Policy Center in Cincinnati. “It’s not changing things, it’s making them worse.”
House Bill 86, enacted in 2011 with bipartisan support by the Republican-dominated state legislature, aimed to keep more people out of prison or get them out quicker by reducing the penalties for some drug offenses and lifting the felony thresholds for theft offenses, which often are linked to drug addiction.
But officials of the Ohio Department of Rehabilitation and Correction say today’s prison population of 50,350 is only 700 inmates smaller than it would be without the law. What’s more, new incarcerations began edging up in mid-2012 after declining steadily since 2007, according to a Daily News analysis of state prison statistics.
One of the objectives of the bill was to slow down the inflow of low-level, non-violent felons into the prison system by placing them into community control (probation) or drug treatment.
But the Daily News analysis shows that while new incarcerations of low-level felons declined dramatically from fiscal year 2007 through 2012 — mostly before the reform bill was passed — the average sentence lengths increased. Meanwhile, the decline in incarcerations stopped last year and the population has been steadily growing since then.
State Sen. Bill Seitz, R-Cincinnati, was a driving force behind House Bill 86. He said he has heard “anecdotally” that some judges have “sabotaged” the bill because they don’t like its provisions prohibiting prison sentences for some first-time, low-level offenders.
They do this, Seitz said, by increasing the number of these offenders they send to prison on probation violations and by not taking advantage of provisions that allow early release of low-risk inmates and those who demonstrate good behavior in prison.
In her State of the Judiciary address last month, Ohio Supreme Court Chief Justice Maureen O’Connor told judges, “any attempt to stem the tide of growth is directly tied to sentencing. That’s where you come in. We as judges must be part of the solution because we are certainly part of the problem.”
Mohr said probation violations now make up 23 percent of new incarcerations, about 4,700 people per year. Some drug offenders who aren’t eligible for prison at sentencing can be imprisoned for probation violations if they fail to stay off of drugs.
But Orman Hall, Kasich’s director of alcohol and drug addiction services, said it’s difficult for addicts to stay sober without treatment, especially the growing number of heroin addicts in the state. “Telling an opiate addict not to use,” he said, “is like telling you or I not to breathe.”
Since the beginning of 2007, the average state prison population has held steady at more than 50,000 inmates. That’s more than 12,000 inmates — almost 32 percent — over the system’s rated capacity.
The cost to taxpayers of housing each inmate is $68.19 per day, or $24,889 per year.
Officials expect the overcrowding problem to get worse. As recently as March 2012, officials predicted significant declines tied to House Bill 86 reforms, with a projected population of 47,250 by July 2015. Now, officials project that if current trends continue, the population will climb to 52,169, or 35 percent over the system’s capacity, by July 2015, and 53,484 by July 2017, 39 percent over capacity.
Officials fear the increasing population will drive up prison violence, harm rehabilitation and, ultimately, require the state to build and staff new prisons.
There’s evidence that crowding may already be contributing to violence. Toledo Correctional Institution, which switched under a restructuring plan from a medium-security prison where inmates were single-celled to a high-security prison with two inmates to a cell, has seen four inmates murdered since September 2012. Between 2010 and 2012, inmate-on-inmate assaults increased 112.9 percent.
Legislators say costly prison construction isn’t a viable option.
“We need to leave no stone unturned before we go down that road,” said Senate Criminal Justice Committee Chairman John Eklund, R-Munson Twp. “That is the least acceptable answer to this issue.”
War on drugs
Much of the crowding problem is attributable to the war on drugs, which began in 1972 and escalated in the 1980s with the advent of crack cocaine. Since then, lawmakers have fueled the prison population explosion with ever-tougher laws that have made more nonviolent offenses punishable by prison, made sentences longer and eliminated some avenues for early release.
U.S. District Judge Walter Rice, a leader in local efforts to help ex-convicts lead law-abiding lives after prison, said the emphasis in prisons in the late 1960s and early 1970s was on rehabilitation, but “when the crime rate didn’t go down in 15 minutes, we lost patience and went back to the retribution model. It’s an easy sell: The public is scared, and justifiably scared, of crime. The legislators feel they’re doing what their constituents want with these tough laws. But they don’t work.”
The United States has the highest prison population rate in the world, according to the International Centre for Prison Studies, with 743 prisoners per 100,000 in the national population. Rwanda is second with 595, followed by Russia with 568.
Ohio was one of the 10 leading states for new prison construction in the 1980s and 1990s, according to the nonpartisan Urban Institute. The 10 leading states, as a group, operated more than three times as many prisons in 2000 as in 1979, the institute found. But even with the building boom, growing numbers of prisoners soon pushed prisons over capacity.
David Diroll, director of the Ohio Sentencing Commission, said the state’s inmate rosters ballooned from 7,000 in 1974 to 44,000 in 1996. It topped 50,000 for the first time in 2007.
“You can say in 30 years Ohioans are six times (more) evil?” he said. “I don’t think so.”
Diroll acknowledged that higher incarceration rates have had some impact in reducing crime, but “just locking people away probably isn’t going to solve your crime problem, and it certainly isn’t going to solve your prison population problem.”
Some lawmakers are still introducing tough-on-crime legislation. State Sen. Jim Hughes, R-Columbus, and Ohio Attorney General Mike DeWine are backing a bill that would create a “violent career criminal” definition and impose stiffer penalties for offenders previously convicted of crimes involving guns. But the prisons department said the bill could drive up costs, including $120 million to build a new prison and $70 million a year to operate it.
While he wants harsher penalties for violent felons, DeWine last week announced what he called a comprehensive effort to review the drug abuse problem and come up with recommendations to address drug addiction and prevent drug-related crimes.
“Somebody who has a propensity to rape my daughter or my wife, or kill my son, is probably somebody we’ve got room for in our prisons,” DeWine said. “The trouble is figuring out who they are.”
Path to reform
One of Mohr’s reform proposals would create an adult-prisons version of RECLAIM Ohio, a program that slashed admissions to juvenile prisons by offering state “incentive funding” to communities for alternatives to prison including day treatment, alternative schools, intensive probation, electronic monitoring and residential treatment.
Under the program, which went into effect statewide in 1995, annual admissions to youth prisons fell from more than 3,700 to 633, according to a study by the Pew Charitable Trusts. The rate at which judges sent young felony offenders to prison dropped from 21 percent in 1992 to 12 percent in 2011, with only the most violent youth going to juvenile lockups.
The state was able to close four youth prisons between 2009 and 2011, saving $50 million in operating expenses. In 1992 the juvenile prisons were at 180 percent of capacity, with 2,600 inmates. By December 2012, that number had fallen to 550.
Mohr doesn’t expect to get the same results if the legislature were to extend RECLAIM to the adult system, because far fewer felons would be eligible. But he thinks there could be significant savings.
Seitz said judges could rebel against an adult RECLAIM system. “I think the judges’ concern is that it looks like you are in effect paying us off not to send prison-worthy people to prison,” he said.
Judges also have been slow to embrace “transitional control,” under which Corrections can recommend to judges that select inmates be released from prison to supervised community environments six months early, Seitz said. He said lawmakers are considering taking away “the judicial veto and leave that decision in the hands of (Corrections).”
Mohr also is calling for the first comprehensive review of the Ohio criminal code since 1996.
Ohio Public Defender Tim Young said he approves of Mohr’s plan of reviewing the low-level felonies, especially the lowest level, known as fifth-degree felonies. The category was created during the Senate Bill 2 reforms in the 1990s, elevating certain misdemeanors to the felony level.
Despite the “depressing” statistics of prison population growth, JohnsonGrove said there’s good reason for optimism that the state will take the steps needed to control the problem, partly because historically tough-on-crime Republicans are now seeing the fiscal and human needs to reduce the inmate count.
“Republicans in Ohio have really claimed the mantle of prison reform,” he said. “It seems like they’re the only ones who can do it, because they also owned the tough-on-crime legislation. (Reform) doesn’t seem to stick to them” politically.
“There is this incredible sense of a moment now,” JohnsonGrove said. “We have a governor who has no fear of doing the right thing, who believes in redemption. We’re in this era where there’s political will, there’s data that empowers good decision-making.”