Reforming Nevada’s Prison System: Some Reflections Based Upon 30+ Years in Nevada
Randall G. Shelden
Given the growing interest in the prison system of Nevada, I thought I would share some of my own thoughts, based upon living here for more than 30 years and the time spent studying and writing about criminal justice issues. I did not want to write a complete and thorough analysis, for this would be way too long. I have made a few recommendations, which should not be seen as exhaustive of all possibilities, but merely a start in discussions. (I have added some appendices and many references for those who wish to pursue some of these ideas further.) For those who receive this, feel free to use it in whatever way you wish.
It is a truism that change comes slowly within any bureaucratic system, but change does happen nevertheless. The American prison system has been in existence for more than 200 years. During this time it has gone through several changes. In fact, a few historians have noted six major eras: 1) 1790-1830: early American prisons; 2) 1830-1870: the Pennsylvania and Auburn systems; 3) 1870-1900: Reformatories; 4) 1900-1946: the “Big House”; 5) 1946 - 1980: the “Correctional Institution”; 6) 1980 to the present: “warehousing.” Each of these eras witnessed many changes: changes in the kinds of prisoners, the way prisons were constructed, where prisons were located, the philosophy of daily operations, the philosophy of the types of punishment given to prisoners, etc. Despite all of these changes, the very nature of the prison has not changed at all: it is still a place of punishment, no matter if it is called a prison or a “correctional institution.” More importantly, the prison remains largely a failure in terms of the final product – protecting the public from criminal activity. On the other hand, the prison can just as easily be viewed as a success, if we define “success” in terms of providing jobs with benefits, revenues for the hundreds of vendors, re-election of public officials campaigning on a “get tough on crime” platform, etc.
The last two eras have seen the greatest growth in the prison system. Thus, while in 1900 the prison population stood at around 50,000, by 1935 it was over 120,000. In 1900 there were 81 state prisons and reformatories, while at the end of the 1930s there were over 100. In 1990 there were a total of 1,287 prisons (80 federal and 1,207 state prisons); by 1995 there were a total of 1,500 prisons (125 federal and 1,375 state prisons), representing an increase of about 17 percent. The federal system experienced the largest increase, going up by 56 percent. In some cases, the capacity within the prison has increased - some “megaprisons” can hold from 5,000 to 10,000 inmates. The most recent data show that as of December, 2006 there were more than 1.5 million in state and federal prisons. If we include those in jail, the total comes to more than 2.2 million. The overall incarceration rate (jails and prisons) in June, 2006 was 750 per 100,000 population (up from 601 in 1995), placing the United States as number one in the world. We are way ahead of other industrial democracies, whose incarceration rates tend to cluster in a range from around 55 to 120 per 100,000 population, with some well below that figure, like Japan's rate of 58. England is slightly above this range at 142. The average incarceration rate for all countries of the world is around 80. Thus, America's incarceration rate is almost nine times greater than the world average.
As for Nevada, we are not alone in this incredible growth. In 1995 there were about 7,600 prisoners; currently we have almost 13,000. This is an increase of about 67%; it is predicted that we’ll be at more than 15,000 by 2015. Our incarceration rate stood at 467 as of 2005, above the nation average. I don’t have the exact figures, but I recall back in the early 1980s when people in this state were talking about the incredible growth when the prison population was around 1,500! This means that the prison population in this state has grown by about 700% since that time!
Many others in this state have taken notice. A recent article in the Reno-Gazette Journal notes that prisoners at the Northern Nevada Correctional Center in Carson City will soon be moving into a 240-bed modular housing unit set up to relieve overcrowding. Currently there are 12,959 prisoners in a system that holds 12,753, at a cost of $296 million annually. Despite the serious overcrowding, the prison in Jean (with about 500 prisoners) is being closed. In the meantime, bed space is being added at the Southern Desert Correctional Center near Las Vegas and at the Northern Nevada Correctional Center. The reasons Jean is being closed are not known to this author. It raises an obvious question, however: in a state overrun with prisoners and short on money, why close a 500 bed facility? And why close one so close to home to so many prisoners?
Clearly Nevada is not the only state facing this issue, as virtually every state in the country is facing its own prison crisis. California, to take just one example, is currently under a court order because of severe overcrowding, lack of medical care and many other issues. Similarly, the California Youth Authority has faced such severe problems that a huge lawsuit has forced the state to almost down most of youth facilities.
The reader should notice that in order to begin taking some concrete steps toward meaningful reform it took two huge lawsuits, costing California millions of dollars. Other states have also had similar experiences with lawsuits. Will Nevada have to wait until a lawsuit forces it to make changes? (See Appendix A.)
What about the Children?
There is one thing to consider before talking about making changes in Nevada’s prison system. According to the latest figures from the Nevada Department of Correction, there are at least 12,000 children with a parent in prison. I say “at least” because one of the categories displayed in a table found within the annual statistics report of 2006 is the number of prisoners with 6 or more children.
I arrived at the 12,000 figure by adding up all the numbers reported in a table concerning “Distribution of Female (and Male) Offenders by Number of Children.” Within each of these tables we have the number of prisoners with just one child, the number with two children, etc. The final category is “6 or more.” We have no idea how many have more than 6 children. My guess is that there are at least 12,000 children in this state with a parent in prison. This does not include those with a parent who either is currently in one of the local jails and those with a parent currently on probation or parole. (In 2006 there were about 3,000 released on parole.) These figures alone should be a “call to arms” to make some drastic changes. Why? Simply because previous research has shown that the variable that is most significantly correlated with juvenile delinquency is “parental criminality.”
Where do we start? Addressing the Drug Problem, Finally
A good place to begin is to examine the offenses that result in a prison sentence in Nevada. According to the 2006 statistical report (referred to above) during 2005 fully one-third of all females entering the system were convicted of a drug offense; for males it was 22%. This means that about 23% of the prisoners were convicted of a drug offense. It should be added that this does not include all the other offenses that may have been in some way drug related. Prior research has noted that well over 50% of all crimes (higher for violent crimes) are in some way related to drug use.  After reviewing the extant research, one recent book noted that “research was almost unanimous in finding that drug users were more likely than non-users to be criminals and that criminals were more likely than non-criminals to be drug users.” Also, “high-rate drug users (particularly daily users) were more likely than low-rate users to commit crimes and to commit them at a higher rate.”
We should not hastily conclude that “drug use causes crime,” for it is more complex than this. A report by the National Institute of Justice that urged caution, stating that “the drugs-crime link is best explained by the common cause model, in which any association of drugs and crime has a cluster of causes.” A recent report from Australia concludes, upon a review of the literature, that: “The common view, widely reflected in policy approaches here and overseas, is that at the very least drug use makes criminal involvement worse. Therefore action to reduce drug involvement (either through law enforcement or treatment) will probably reduce offending although it might not reduce the overall number of offenders.” A report from Ireland noted that there is even some evidence that serious drug use may begin after a prison sentence. In one study of prisoners it was found that the average age when they were first convicted of a crime was 16.8, while the average age of initiation into drugs was 18.
In the state of Nevada, 90% of the male prisoners and more than 80% of female prisoners have used drugs, according to the Nevada DOC 2001 annual statistical report This same report notes that drug courts in Nevada have been operating since 1999 and prisoners started to qualify in 2001, yet only $133,000 was budgeted for the Division of Probation and Parole with just 50 slots opened in Washoe County and 100 in Clark County. This is a pittance for such an important problem.
The 2001 report also noted that Nevada law requires all prisoners who participate in a drug treatment program while in prison must participate in a community drug treatment program for one full year after release (NRS 209.4236 (3)(b)). Additionally, the law stipulates that the Director of Corrections must establish “one or more aftercare programs, working with the Bureau of Alcohol and Drug Abuse (NRS 209.4238). However, Nevada has not budgeted funds for the Director to comply with this statutory mandate.” The report also says that the DOC has two therapeutic drug treatment programs, so therefore funds should be provided for aftercare programs. One thing I find hard to believe is that there are only two drug treatment programs in the entire prison system for more than 11,000 prisoners, 90% of whom could theoretically use such a program!! In short, Nevada law requires drug treatment programs (plus alcohol and other rehabilitation programs) both within and outside the prison, yet few if any funds are made available.
Nevada is not unique for this issue has been identified throughout the country. One report estimated that “one-third of male and half of female inmates need residential treatment.” The report also noted that: “Treatment capacity in state prisons is quite inadequate relative to need, and improvements in assessment, treatment matching, and inmate incentives are needed to conserve scarce treatment resources and facilitate inmate access to different levels of care.” Another report concluded as follows:
Substance abuse appears to be inextricably interrelated to criminal behavior. For example, as many as 80% of those in the nation's prisons and jails may be seriously involved with alcohol and illicit drug use. Data from the national Arrestee Drug Abuse Monitoring (ADAM) program shows that the majority of male (median of 64%) and female offenders (67%) test positive on a urinalysis for marijuana, cocaine, opiates, methamphetamine, or PCP at their initial booking into the criminal justice system, indicating very recent involvement with illicit drugs.
According to a recent national survey of correctional institutions fully 80% of state and 70% of federal prisoners reported prior illicit drug use. One half of state and federal prisoners said they were under the influence of alcohol or drugs when they committed their most recent offense.
It is obvious that without seriously addressing the drug problem, any attempt to deal with the current prison crisis is bound to fail. This would also include a serious consideration of repealing some drug laws, especially marijuana. A good argument has been made about legalizing or decriminalizing some, if not all of these drugs. I would personally recommend that Nevada take the lead in legalizing marijuana, since there is no evidence that it is any more dangerous than alcohol and that no one has ever died from using it. Also, there is no evidence that it is a “gateway drug.” More on this subject is found in Appendix B.
What is most unusual about Nevada’s prison population is that more than two-thirds (68%) never had a felony conviction in Nevada. It appears that the policy is “one strike and you’re out” in Nevada. An additional 15% had only one prior felony conviction. In other words, 83% had less than two prior felony convictions. Some of these offenders had felony convictions in other states. Even so, as noted on another table, 48% of the male offenders and 51% of the female offenders still had no prior felony convictions anywhere.
As far as sentences are concerned, 83% had something other than death, life and life with and life without parole. So these individuals will be released eventually.
The Nevada DOC annual statistical report also noted that only 43% of Nevada’s inmates had a high school diploma or GED at the time of admission. Also, nearly half of these inmates perform below the 8th grade in math and reading. This is a critically important statistic. For many years, criminologists have pointed out that education is an important variable in crime causation. Also, experts have constantly showed, through various research projects, that the more education a prisoner receives the greater will be his chances of succeeding. A study of a group of prisoners who participated in an educational program with the Wyndham School District in Austin, Texas found that only 16% were back in prison within two years. The study found that those with the highest level of achievement scores within this program had the lowest recidivism rates. Consistent with prior research, it was also found that the older prisoners had the lowest recidivism rates (those 50 or older had a 7% recidivism rate and those 40-50 has a 13% recidivism rate, compared to those 17-25, who had a 20% recidivism rate). Yet, in spite of these and other studies (too many to mention here) Pell Grants to prisoners were discontinued as a result of the Violent Crime Control and Law Enforcement Act passed in 1994.
It appears to me that those with the power to do something about reforming prisoners and protecting the public simply don’t care to do what would help bring about changes. How else do we explain the failure to offer Pell Grants and other educational programs?
Too many minor offenders are locked up
A common reason for overcrowding is that too many are in prison who could just as easily be subjected to some form of punishment within a community setting. This is the conclusion made by scores of criminologists over the previous two decades. A survey conducted by James Austin and John Irwin illustrates this problem. They examined a sample of prisoners in three states: Nevada, Illinois, and Washington. They first examined the crimes that the prisoners were convicted of and sent to prison for. They looked at the level of seriousness of these crimes. The crimes fit into four general categories, ranging from most serious to least serious. The most common category, contrary to popular belief, was what Austin and Irwin considered as “petty crimes,” representing just over half (52.6%) of all the inmates. These the researchers describe as “crimes with no aggravating features”—that is, no large amount of money was involved, no one was injured, and so on. They included shoplifting and smoking a marijuana cigarette.
Almost 30 percent (29.3%) of the inmates had been convicted of “moderate crimes.” These included acts that resulted in minor injury, use of heroin, selling marijuana, use of a weapon, and theft of more than $1,000. The next most common category was “serious crimes,” which constituted 13% of the inmates. These crimes included theft of more than $10,000, attempted murder, and sale of heroin. Finally, less than 5% were “very serious crimes.” These included rape, manslaughter, homicide, and kidnapping.
Austin and Irwin also examined the “criminal careers” of these offenders, taking into account not only the current offense but offenses committed in the past. As they properly note, the notion that the “career criminal” is a crazed person who commits one felony after another is simply not accurate. What Austin and Irwin found was quite the opposite. They identified five distinct patterns of crime among these offenders: (1) “into crime” (43%), (2) “crime episode” (19%), (3) “being around crime” (18%), (4) “one-shot crime” (14%), and (5) “derelicts” (6%). These patterns are remarkably similar to those identified by Irwin and others in studies conducted around thirty years ago.
Individuals in the “into crime” category (the most common) were heavily involved in a wide variety of criminal behaviors, almost on a daily basis. They are described and describe themselves as “dope fiends,” “hustlers,” “gang bangers,” and the like. More than half of these individuals were in prison before, and about a third of them served time as juvenile offenders. Yet most of these very active criminals were convicted of “petty crimes” and did not fit the popular image of the “vicious predator.” Rather, in the words of Austin and Irwin, they were “disorganized, unskilled, undisciplined petty criminals who very seldom engaged in violence or made any significant amounts of money from their criminal acts.”
Space does not permit a detailed summary of each of these categories (interested readers should consult their book). What Austin and Irwin found corroborates what so many other researchers have found over the years when they probed beneath the surface of the “crimes” people commit that land them in the prison system. Each person that is sent to prison is unique, and the crimes they commit are done under unique circumstances.
In fact, detailed studies of actual crimes show that there is a lot missing from the crime category itself: someone charged with “kidnapping” when they were not directly involved in the crime, but just in the same general area attending a party; some convicted of “burglary” who stole a candy bar; some “three strikes” offenders in California who stole a pizza or VHS tapes or something similarly minor. Austin and Irwin give this account of one of Nevada’s prisoners:
Edmond is a 50-year-old white carpenter who works in Florida in the winter and Seattle in the summer. He had been arrested once 22 years ago for receiving stolen property. He was passing through Las Vegas on his way to Seattle and says he found a billfold with $100 on a bar where he was drinking and gambling. The owner, who suspected him of taking it, turned him in. He was charged with grand larceny and received three years.
Then there are the huge numbers of people sent to prison all over the country who did little more than possess a small amount of an “illegal substance.” In Nevada today, among those sent to prison last year, 22% of the male offenders and one-third of the female offenders are in on a drug conviction. Similarly, among parole violators, 18% of the males and 35% of the females were convicted of drug offenses. Among the total population of Nevada prisoners (new commits plus existing prisoners) 13% of the males and 25% of the females are in for drug charges. These percentages translate into a large number of people who may better be dealt with by something other than a prison sentence. Finally, 20% of the women and 40% of the males in Nevada prisons were convicted of lesser felonies classified as C, D, and E.
It is clear some alternatives should be explored and efforts to release those who are eligible because of “good-time” credits. Specifically, Assembly Bill 510 has resulted in freeing up beds. This is a bill that allows inmates to accrue “good time” credits faster than before. I wonder if this bill will apply retroactively, as many prisoners have complained about errors in the computation of “good time” credits. I have heard numerous stories of prisoners who have served many months beyond the time they should have been released. I even heard from a reliable source that there is only one person within the prison system in charge of computing these credits. I suspect that many of these prisoners are well beyond their “crime-prone” years where the likelihood of re-offending has diminished considerably. Currently more than one-third of all Nevada Prisoners are over 40 (about 4,500). Clearly most of these offenders are past their prime in terms of criminality. Let’s suppose that we could release about half or more of this group with little or no threat to public safety. In raw numbers this would mean a release of about 2,200 prisoners. We could also take a close look at those convicted of level D and E crimes, plus most drug offenses. In a recent report Jim Austin strongly urged granting probation to all of those convicted of class E crimes.
Probation and Parole Issues
Consistent with other aspects of the criminal justice system in Nevada and elsewhere, system probation and parole has succumbed to the “get tough” philosophy that has become dominant in the past couple of decades. Both of these systems were founded on principles based for the most part within the social work tradition. In other words, they were systems that were set up to actually help offenders.
In recent years, however, probation and parole has become more and more law enforcement oriented. In fact, in most jurisdictions both probation and parole officers are either encouraged or are required to carry a firearm with them. Most of these officers see themselves are law enforcement agents or “peace officers.” Many seem to enjoy this orientation much more than being a social worker. Former Commissioner of the Massachusetts Youth Corrections Department Jerome Miller tells the story of a sign posted on the wall in the office of a Chief Probation Officer’s which read “trail ‘em, nail ‘em, and jail ‘em.”
While conducting a study of jail overcrowding in Las Vegas in the late 1980s, a colleague and I were told by the director of the State of Nevada Department of Parole and Probation that “we train our agents to catch violators.” In other words, the current system of parole has been transformed from its original aim of assisting parolees (playing the role of “social worker”) to a system that is strictly law enforcement. One Las Vegas parole officer continually bragged about the absconders he had gone after and captured. In one case he traveled all the way to New Orleans to catch one of his parolees who had committed a couple of technical violations. He was, in common parlance, a gung-ho type of agent who could not wait to catch someone violating a rule.
What factors weigh most heavily in the decision to parole? A recent survey by the Association of Paroling Authorities found nine factors considered important. A close look at these factors reveals that the prisoner’s behavior prior to going to prison looms large, meaning that the person is was still being judged long after conviction and sentencing. The most important factor is the nature of the most recent offense, followed closely by “history of prior violence” and “prior felony convictions.” Other factors, in order of importance, are: possession of a firearm, previous incarceration, prior parole adjustment, prison disciplinary record, psychological reports, and victim input. In short, whether the offender has been “rehabilitated” (however this is defined) is irrelevant.
An article in the Reno Gazette-Journal two years ago noted that Nevada is ranked number one in the country in the number of prisoners who are denied parole. The story noted that “a national study by the U.S. Department of Justice found that while the nation's parole population grew 2.7 percent in 2004, in Nevada, it dropped by 12.5 percent -- the biggest decrease in the country.” Notice that this was two years ago and nothing has been done to alleviate the situation. I keep getting e-mails from family members of prisoners who have been sharing stories of these denials and problems with the computation of “good time” credits.
An easy solution to this might be to set up a special ad hoc panel of experts to review every pending case of prisoners who have experienced problems with the computation of “good time” credits and to review cases that may be coming up for parole. Yes, I know that I am stepping on the toes of the parole board, but they do not seem to be doing their job very well, given all the complaints I have read about. If it is determined that they are eligible for parole, then release them so they can go home to their families and get on with their lives, while giving them all the support they need to turn their lives around.
Some Concluding Comments
I could continue with a more detailed review, and I know that Jim Austin has more of the same information in his various reports on Nevada (and other prison systems). I could also easily add several pages about recent changes in sentencing laws (e.g., Mandatory Sentencing, Truth in Sentencing, etc.) that have contributed to our current problems. All of this and more can be found in any standard textbook on criminal justice or corrections.
One of the biggest problems in dealing with crime via legislation is that the punishments are made to “fit the crime,” as originally postulated by Cesare Beccaria whose book On Crime and Punishment, written in the late 18th century became the standard theoretical bedrock of our entire criminal justice system.. The problems inherent in this philosophy have become all too real over the years. This approach is inconsistent with the real world. This is because not every crime is alike, just as not every person is alike. It is not true that a “robbery is a robbery,” a “burglary is a burglary,” etc. Yet we treat all robberies and all burglaries and all other crimes as if each and every representative acts are exactly alike – in surrounding circumstances, motivation, etc. This is why when we create overly broad legislation like “Three Strikes” and “use a gun and go to prison” they not only fail to have an impact on crime, they invariably lump together quite disparate kinds of human actions.
One big problem with how we respond to crime is that we continually pass legislation making punishments more severe, thereby ignoring two of the three elements of deterrence, namely swiftness and certainty, which Beccaria stressed more than severity. However, whenever legislators begin to discuss what to do about crime, they invariably try to outdo one another and their predecessors in getting tough. (We tend to choose the same approach when dealing with international crises.)
Frankly, to me this is becoming a laughable, tragic comedy. We keep doing the same things, yet expecting different results. This sounds like a common definition of insanity!
Currently there is a movement by a few public officials and concerned citizens within this state to seriously address the problem of Nevada’s prisons. I seriously doubt if anything substantial will be done to alleviate the problems. Sure, we may commission another study, which will probably arrive at findings and conclusions already done in this state and in virtually every other state in the country. We’ll end up making a few cosmetic changes here and there, but five or ten years from now there will be more outcries about the sorry state of affairs within the prison system and more discussions about what can be done. Someone else will be called in to conduct yet another study which will arrive at almost identical conclusions, and again, nothing will improve or change.
Call me cynical, if you will, but history is on my side on this issue. We’ve gone down this road before and we can still see the tracks from prior journeys. Why is this? I’m willing to tell you why, but will anyone listen?
The reason is fairly simple: we keep tinkering with the existing system, like fixing an old car that should be relegated to the junk yard. More importantly, we never seriously address the most important issue of all, something that politicians are afraid to touch. Prisons are overcrowded for two reasons: too many people are going in and too many are staying there too long. The reason too many are going in have to do with two things: too many are committing crimes but also, too many are being arrested for violating laws that should not even be on the books in the first place. The former stems from the many causes of crime that we fail to seriously address. This also stems from what amounts to useless legislation that is more based on exceptional cases than the real world – especially drug laws and sentencing enhancements – which have done little or nothing to seriously reduce criminality.
The reader might reasonably ask: what are these causes you are talking about? I could fill an entire book (and many have done this) about these causes, which have been amply documented for more than 100 years. A rather simple test will identify some of these causes. Ask yourself the following question: why am I not a criminal? And don’t just say “because I chose not to be” for it is far more complex than this (besides, I would immediately ask you why you did not choose to become a criminal). As you begin to list some of these reasons (family background, local environment, education, etc.) you are compiling the various causes that should be addressed. These factors determined your life of non-involvement in crime; the absence of such factors helped determine the involvement in crime of those currently incarcerated. Give others the same advantages you have been given. There is your solution to the crime problem in America. Apparently most other countries have been successful at this (especially European countries, plus Canada, Australia, New Zealand, etc.). Why can’t we do this too, especially if we want to be a leader in education and community rather then imprisoning our citizens?
Appendix A: Alabama Case
ACLU and Alabama Prison Project Release Report Urging Community Corrections as Cost Saving Measure (4/29/2003)
MONTGOMERY, AL-Citing Alabama's budget crisis and dangerously overcrowded prisons, the American Civil Liberties Union and the Alabama Prison Project today released a new budget analysis highlighting a potential savings of $300,000 to $400,000 if the state accepted prisoners living with HIV into existing community-based corrections programs.
"I commend Governor Bob Riley and the state legislature for passing emergency legislation earlier this month and for considering additional legislative efforts this week that reduce corrections costs by utilizing community programming," said Lucia Penland, director of the Alabama Prison Project.
"But problems continue to plague Alabama's prison system," Penland added. "In light of the findings that support admission of HIV-positive prisoners into diversion and community corrections programs, the time is right to explore more cost-saving measures and stop the needless segregation of HIV-positive prisoners."
Alabama currently bars all prisoners living with HIV/AIDS from participating in activities with other prisoners and offers few alternative opportunities for rehabilitative programming. No other state in the country completely segregates prisoners with HIV/AIDS in this way.
Alabama's misguided HIV/AIDS segregation policy applies to both in-prison programs -- such as education, jobs, vocational training, and religious services -- as well as to community-based programs run by the state or outside organizations. Community-based options include work release, supervised intensive restitution, boot camp, and other programs.
Today's analysis examines the Alabama Sentencing Commission's findings that the state pays $26 a day to house an individual in prison but only $11 a day to divert a prisoner into intermediate sanctions. Another recent report on Alabama's corrections system by Carter Goble Associates found that the state pays $9000 per person per year for incarceration versus $2000 for community corrections programs.
The analysis goes on to illustrate that if HIV-positive prisoners could participate in these programs at the same rate as other Alabama prisoners, 56 men and women could be transferred resulting in a cost savings to the state of $300,000-$400,000.
"Governor Riley has publicly announced his commitment to expanding community-based correctional programs as an effective low-cost criminal justice sanction," said Jackie Walker, HIV/AIDS/Hepatitis Information Coordinator at the ACLU's National Prison Project. "His swift response to this new analysis could redress a misguided and expensive one-of-a-kind policy in Alabama."
Today's briefing paper, Cost of Excluding Alabama State Prisoners with HIV/AIDS from Community-Based Programs, was written by Dr. Rachel Maddow, an expert consultant for the ACLU's National Prison Project. Copies of the report are available on line at /prison/medical/14698pub20030429.html
ACLU Applauds Alabama Governor for Prison Reform Efforts and Suggests Ways to Further Positive Steps (4/9/2003)
Statement of Margaret
Winter, Associate Director
ACLU National Prison Project
WASHINGTON-The American Civil Liberties Union today commends the actions of Alabama Governor Bob Riley and state legislators who moved to address the crisis in the state's prison system by approving an emergency appropriations bill for the Alabama Department of Corrections.
In today's emergency appropriation, the governor and legislature directed new resources to expand community corrections. Alabama's prisons are dangerously overcrowded, and community corrections programs afford an important opportunity to reduce costs while balancing the need for punishment and rehabilitation. But other problems plague Alabama's prison system and the governor and legislators should continue in this vein to address them.
The Alabama Department of Corrections has long prohibited an entire class of inmates -- those who are HIV-positive -- from accessing programs like community corrections. HIV-positive men and women are forbidden from participating with other prisoners in any corrections department programs including those that divert offenders from prison into alternatives to incarceration programs like 'boot camp' or 'work release.'
No other prison system in the nation has a total segregation policy for inmates with HIV/AIDS -- including the Tennessee Department of Corrections, which was until recently headed by Alabama's Corrections Commissioner Donal Campbell.
There is no reason that HIV-positive inmates should be excluded from these important programs, and the state's decision to keep them in prison while diverting other similarly qualified inmates, is an anachronistic and expensive mistake.
Both of the above are found on this web site: http://www.aclu.org/prison/overinc/index.html
Ending the “War on Drugs”
The “war on drugs” has had a devastating toll on American citizens, especially the poor and racial minorities. The negative consequences of this “war” have been far-reaching: the exploding prison population, the targeting of racial minorities (and their disenfranchisement), the enormous costs to taxpayers, little or no impact on drug use. Before any meaningful changes can come about and before any sort of “justice” can be achieved—however “justice” is defined—we recommend the end of the “war on drugs” or, at the very least, a sort of “ceasefire” until other options are studied and tried.
The drug war has helped create and perpetuate a prison-industrial complex, which in turn is the result of an economic system driven by a “free market” philosophy that places profits above people. In this “free market” everyone is “free” to earn a buck any way they can. The fact that it may be illegal is often beside the point; the fact that it may be downright unethical is largely irrelevant. One of the key aspects of a capitalist, “free market” economic system is that the production and distribution of “commodities” are the major goals. Commodities create profits, pure and simple. And the production and distribution of commodities are based on the “law of supply and demand,” which dictates that where there is a demand for a commodity, someone willing to take the risks will engage in the act of supply. And when the commodity has been considered a “vice” and attempts are made to limit access to it by the criminal justice system, there appears to be even a greater demand. Such has been the case with all sorts of “vices”—prostitution, gambling, alcohol, drugs ...you name it. When we have made attempts to reduce either the supply or the demand of something that is desired through the law, we have always had drastic consequences and have always failed miserably.
What many do not seem to understand is that by making something illegal that is at the same time highly desired by the general public, we open up all sorts of opportunities for not only bribery (the usual scandalous variety where cops receive payoffs to look the other way, judges fix things if they get that far, etc.) but also a great deal of money made very legitimately via working in the criminal justice system. Indeed, largely as a result of fighting the drug war, the “criminal justice industrial complex” (of which the prison is one part) has become a booming business. Currently we taxpayers shell out in excess of $200 billion per year for the police, the courts, and the correctional system—up from a paltry $10 billion at the state of the 1970s. Fighting the drug war is big business. The same can be said of the “war on gangs.”
The fact is we do not seem to be winning the drug war. At least, we are not winning in the usual sense of the word: the drug problem is not getting any better, people are finding it easier and easier to obtain drugs, street prices of illegal drugs have dropped considerably, and hardly a dent has been made in the amount of drugs coming into the country. But in another sense many are in fact “winning”—if we define winning as making huge profits, the expansion of drug war bureaucracies, and so on. Aside from the jobs created and the money made actually “fighting” the war (lucrative contracts to build prisons, providing police cars and various technology to fight crime, drug testing, etc.), there is plenty of money to be made on the supply side.
Part of the problem is that drugs are a huge business enterprise. Consider these facts:
• A United Nations report notes that drug trafficking is a $400 billion per year industry, equal to about 8 percent of the world’s trade. One example: one kilo of raw opium in Pakistan averages $90 but sells for $290,000 in the United States. Another example: there are about $7 billion in drug profits coming out of Colombia each year (legitimate exports are only slightly greater at $7.6 billion); Colombian cartels spend about $100 million on bribes to officials each year; 98 percent of Bolivia’s foreign exchange earnings from goods and services came from the coca market in 1993.
• The estimated economic cost of alcohol abuse is around $148 billion, compared to drug-abuse costs of around $97 billion. Concerning this $97 billion, 60 percent of the costs are related to law enforcement and imprisonment; only 3 percent were from the victims of drug-related crime. An estimated 85,000 die each year from alcohol abuse, plus an additional 16,000 from motor vehicle accidents where alcohol was involved.
• And speaking of costs: in 1969 the Nixon administration spent $65 million on the drug war; in 1982 the Reagan administration spent $1.65 billion; in 1998 the Clinton administration requested $17.1 billion (more money for drug war bureaucracies). The most recent data show that during 2005 the combined total money spent at the state and federal levels was about $50 billion.
• Our government steadfastly continues to focus on the supply side rather than the demand side of the equation, with horrible results. Interdiction efforts intercept only 10 to 15 percent of the heroin and 30 percent of the cocaine. United States expenditures to counter drug operations in Colombia come to about $1.3 billion, with negligible results. In fact, Colombia has recently passed Peru and Bolivia as the number-one producer of coca.
It looks as if the “spirit of capitalism” helps perpetuate the demand for and the supply of drugs. Drugs, whether legal or illegal, are profitable commodities—profitable for the supplier, the seller, and the “drug warriors” who are supposedly trying to “win” this “war.” But these “drug warriors” are not really interested in truly “winning” in the sense of eliminating the drug problem or even reducing it to any significant degree. After all, careers are at stake, as are promotions and other perks. Further, we must consider the thousands of businesses, large and small, that benefit from the existence of jails and prisons. Consider the number of contractors needed to build a prison or jail (engineers, architects, builders, electricians, mortgage companies, those providing security measures such as locks and fences, furniture, computers, etc.) and then those who benefit from everyday maintenance (suppliers of linen, food, medical supplies, etc.). Billions of dollars are to be made in the “prison industry,” not to mention salaries and benefits for those working in the system (police officers, court workers, judges, prison guards, etc.). Then, too, there are the education and training for the next generation of “drug warriors” in various criminal justice programs in more than three thousand colleges and universities, plus law enforcement training academies.
In other words, the “war on drugs” is too profitable to end, for too many people and too many government agencies, and corporations are reaping profits from this war. In spite of the obvious obstacles that may lie in the way of ending this war (and remember that it is really in the best interest of the average citizen to end this “war”), we nevertheless insist that some attempt be made to do so.
The first thing to consider is the options that are available. Do we simply legalize all drugs? Do we legalize them with some regulations and restrictions (e.g., minors prohibited from using)? Do we legalize only some drugs (e.g., marijuana)? Do we “decriminalize” some or all drugs by limiting the penalties or some other options? Do we involve the criminal justice system in only indirect ways, such as having drug courts or drug treatment sentences instead of jail or prison (as stipulated in a recent California referendum, known as Proposition 36)? First, let’s review some myths and realities about drugs and crime.
Myths and Realities about Drugs and Crime
First, we must be aware of the extent of illegal drug use (leaving aside the widespread use of both tobacco and alcohol—the two most dangerous drugs in the world, responsible for perhaps 500,000 deaths each year). Most experts on drug use have come to the conclusion that there are two drug problems, one related to the general population, the other related to those living in extreme poverty, including those caught up in the criminal justice system. In recent years, while the use of illegal drugs by the general population has declined, there has been a significant increase in drug use among the poorest segments of our society.
The connection of drugs to crime is a complex issue, but generally we can say that there are three aspects of the drug–crime connection. First, there are drug-defined crimes—possession and sale of illegal drugs. Second, there are drug-related crimes, such as those (e.g., robbery) committed to support one’s habit or violence associated with the pharmacology of the drug. Third, there are crimes associated with drug usage, meaning that the offender was using drugs around the time the crime was committed but the crime was not directly caused by drug use. What is important to note is that while the majority of high-rate offenders use drugs, most started their criminal careers before the onset of drug use, and some started their criminal careers and their drug use about the same time. It must also be stressed that the overwhelming majority of those who used an illegal drug sometime in their lives became neither drug addicts nor career criminals. Thus, reducing illegal drug use will not guarantee a lowering of the crime rate.
What about the dangerousness of illegal drugs? It is beyond the scope of this final chapter to explore the harmfulness of the various drugs on the market—both legal and illegal. We know for a fact what alcohol and tobacco usage does to individuals, their families, and their communities. The extent of the harm done by substances that have been made illegal is not known with any degree of certainty, although some studies document the negative long-term consequences of the use of such drugs as cocaine and heroin, especially heroin. Nevertheless, one set of statistics underscores the dramatic differences between tobacco and alcohol on the one hand and illegal drugs like cocaine and heroin on the other. Every year, on average, there are between 400,000 and 450,000 tobacco-related deaths, between 80,000 and 100,000 alcohol-related deaths, roughly 32,000 deaths from prescription drugs, and 17,000 deaths are related to the “hard drugs” (cocaine, heroin, etc.). And how many deaths are attributed to marijuana? Zero!
There is continuing controversy over marijuana use. Although marijuana is not a totally benign substance, the negative consequences of marijuana use are far less than most other drugs. To be sure, there are some harmful effects, such as the ingestion of carbon monoxide (one marijuana cigarette delivers three times more tar to the system than one tobacco cigarette). However, most hard-core tobacco smokers go through a pack a day or more, compared to the typical casual marijuana smoker. And contrary to popular myth, marijuana is not a “gateway” drug—leading to the use of more serious drugs. Most of those who use marijuana do not progress to the harder drugs. Besides, THC (the main ingredient for marijuana) ranks lowest in addictive potential of all commonly used substances, including caffeine.
We have not learned some of the valuable lessons of history about using the criminal law to attempt to control something that is in great demand. First, we have to consider the law of supply and demand, which says that when you have a large demand for a product (e.g., drugs, alcohol) or a service (e.g., prostitution), there will always be someone willing to provide it, despite the risks involved. Second, any effort to prevent the supply from getting to those who demand these goods or services inevitably results in the creation of criminal syndicates and widespread evasion by those who want what is offered. Third, any attempts to enforce these laws will have some very negative side effects, such as corruption within the criminal justice system (especially the police), the violation of individual rights, and turf wars between rival street gangs, not to mention widespread disrespect for the law. Fourth, any intensification of law enforcement efforts will result in many people either substituting other illegal products or transferring the “service” to people who are more willing to take the risks—after all, the profits are always quite high.
A Modest Proposal
Short of legalizing all drugs (which may be the ultimate solution but is politically infeasible for the foreseeable future), we recommend at the very least two things. First, legalize marijuana, with some restrictions for youth (as there are for alcohol). This makes the most sense to us, because about half of all drug arrests are for marijuana, mostly possession. In the year 2005 (the latest figures available as of this writing), 43 percent of all drug arrests in the United States were for marijuana, and almost 90 percent of these were for simple possession. Of course, even this modest proposal will receive considerable resistance, especially from those in charge of enforcing the drug laws and those profiting from the prison-industrial complex. The usual argument is that such a policy would mean that we condone the use of marijuana, to which we reply, so what? We condone the use of alcohol and, until recently, we condoned the use of tobacco. We can discourage use of marijuana—and other drugs as well—by using the methods that were so successful in reducing the demand for tobacco. Further, because there is no evidence that marijuana use leads to any serious problems (with some exceptions, to be sure)—and no one dies from it—why criminalize it?
Second, for those addicted to drugs, treatment options should be made available. There are plenty of relatively successful treatment options. It is clear that providing treatment instead of jail or prison is much more cost-effective. One study noted that every dollar spent on drug treatment results in an overall $3 social benefit (less crime, more employment, etc.). One illustration is the Treatment Alternatives to Street Crime (TASC) project. Under this plan, instead of going to jail or prison, an offender is placed under community-based supervision in some drug treatment program.
 The first five were suggested by Irwin, J. (1980). Prisons in Turmoil. Boston: Little Brown, while the last period (covering the years since Irwin's book), was suggested by prison expert Robert Weiss (personal communication).
 Austin, J. and J. Irwin (2001). It’s About Time: America’s Incarceration Binge (3rd ed.). Belmont, CA: Wadsworth, p 66.
 Sabol, W. J. and T. D. Minton (2007). “Prison and Jail Inmates at Midyear 2006.” Washington: US Department of Justice, Bureau of Justice Statistics, June; Sabol, W. J, H. Couture and P.M. Harrison (2007). “Prisoners in 2006.” Washington: US Department of Justice, Bureau of Justice Statistics, December.
 “U.S. prison population continues rising.” CNN, April 24, 2005. http://www.cnn.com/2005/US/04/24/prison.population.reut/index.html?section=cnn_us
 Kuhn, A. (2001). “Incarcerations Rates Across the World.” In M. Tonry (ed.), Penal Reform in
Overcrowded Times. New York: Oxford University Press.
 Farley, M. (2008). “Prison crowding targeted in state.” Reno-Gazette Journal, February 29.
 Some examples can be found on the ACLU web site: http://www.aclu.org/prison/index.html. Here’s a specific example from California concerning medical care: “ACLU Calls on Nevada Governor to Address Grossly Inadequate Prison Health Care” (12/6/2007): http://www.aclu.org/prison/medical/33011prs20071206.html.
 Documentation can be found in just about any delinquency book. See my own book, Shelden, R. G. (2006). Delinquency and Juvenile Justice in American Society. Long Grove, IL: Waveland Press, pp. 280-281; see also Dryfoos, J. G. (1990). Adolescents at Risk: Prevalence and Prevention. New York: Oxford University Press. There are many references about the issue of children of incarcerated parents. Some examples include: Gabel, K. and D. Johnston (eds.) (1995). Children of Incarcerated Parents. New York: Lexington Books; Gabel, S. (1992). “Children of Incarcerated and Criminal Parents: Adjustment, Behavior, and Prognosis.” Bulletin of the American Academy of Psychiatry Law 20: 33-45; Gaudin, J., and R. Sutphen (1993). “Foster Care vs. Extended Family Care for Children of Incarcerated Mothers.” Journal of Offender Rehabilitation 19: 129–147; Seymour, C. (1998). “Children with Parents in Prison: Child Welfare Policy, Program and Practice Issues.” Child Welfare Journal of Policy, Practice and Program (Special Issue: Children with Parents in Prison), September/October.
 There is ample documentation. See, for instance, the following: Mumola, C. J. and J. C. Karberg (2006). “Drug Use and Dependence, State and Federal Prisoners, 2004.” Washington, DC: Bureau of Justice Statistics, October. http://www.ojp.usdoj.gov/bjs/pub/pdf/dudsfp04.pdf;
 Bennett, T. and K. Holloway (2005). Understanding Drugs, Alcohol and Crime. New York: Open University Press, p. 150.
 Australian Institute of Criminology (2004). “Does drug use cause crime? Understanding the drugs-crime link.” http://www.aic.gov.au/publications/crm/crm022t.html.
 Belenko, S. and J. Peugh (2005). “Estimating drug treatment needs among state prison inmates.” Drug and Alcohol Dependence 77 (3), March: 269-281.
 Hiller, M.L. (2005). “Prisoners with substance abuse and mental health problems: use of health and health services.” American Journal of Drug and Alcohol Abuse (February). This quote refers to the (recently discontinued) Arrestee Drug Abuse Monitoring (ADAM) project, which reported annually on the results of drug testing among those arrested. Concerning alcohol use, the same report noted that: “Adult male arrestees drank heavily. Among the sites, the proportions who had five or more drinks on at least one occasion in the month before their arrest ranged from a low of 35 percent to a high of 70 percent.” To view this report go to this web site: http://www.ncjrs.gov/pdffiles1/nij/193013a.pdf.
 Mumola C.J. (1999). “Substance Abuse and Treatment, State and Federal Prisoners, 1997.” Washington, DC: U.S. Department of Justice, Office of Justice Programs.
 Weisner, C. and L. Schmidt (1995). “The community epidemiology laboratory: studying alcohol problems in community and agency based populations.” Addiction 90(3):329-341.
 Miron, J. A. (2004). Drug War Crimes: The Consequences of Prohibition. Oakland: The Independent Institute; for a very balanced perspective on the legalization/decriminalization debate, see Inciardi, J. (2002) The War on Drugs III. Boston: Pearson/Allyn and Bacon.
 A good review of these issues, including the “gateway” theory, is provided in the following web sites: http://www.drugwarfacts.org/index2.htm; http://www.drugsense.org/html/index.php; http://stopthedrugwar.org/.
 For a good review see Karpowitz, D. and M. Kerner (nd). “Education as Crime Prevention: The Case for Reinstating Pell Grant Eligibility for the Imprisoned.” Ananndale-on-Hudson, NY: Bard Prison initiative, Bard College. http://www.bard.edu/bpi/pdfs/crime_report.pdf.
 Fabelo, T. (2000). “Impact of Educational Achievement of Inmates in the Wyndham School District on Recidivism.” Austin, TX: Criminal Justice Policy Council, August. http://www.windhamschooldistrict.org/cjpc/wsdrec10.pdf.
 For details see this web site: http://en.wikipedia.org/wiki/Violent_Crime_Control_and_Law_Enforcement_Act.
 Austin and Irwin based the “seriousness” of crime on that of the general public, which was measured by the Center for Studies in Criminology and Criminal Law at the University of Pennsylvania.
 Irwin, in his earlier research on a sample of offenders in California, found eight criminal identities (see our discussion of typologies of criminal behavior in Chapter 2): (1) the thief (8% of his sample); (2) the hustler (7%), the dope fiend (a term used by many drug users; 13%), the head (user of psychedelic drugs, such as marijuana and LSD; 8%); (5) the disorganized criminal (one who pursues “a chaotic, purposeless life, filled with unskilled, careless, and variegated criminal activity”; they “make up the bulk of convicted felons”; 27%); (6) the state-raised youth (the young offender who has served one or more terms in youth institutions and, in a sense, has been reared, during the formative years, in various kinds of state institutions; 15%); (7) the lower-class man (the man from a lower-class background who has not had a long criminal career but who just happened to have committed a felony; 6%); (8) the square John (the conventional person from a stable working-class background who simply made a mistake and ended in prison; 16%). See Irwin, J. The Felon. Englewood Cliffs, NJ: Prentice-Hall, 1970.
 Austin and Irwin, It’s about Time, p. 41.
 For a completely different look at prisons and prisoners see a book written mostly by ex-convicts: Ross, J. I. and S. Richards (2002). Convict Criminology. Belmont, CA: Wadsworth.
 Austin and Irwin, It’s about Time, p. 27. In this specific example, it is important to note that this incident occurred in Nevada, where just about any offense committed within a gaming establishment is treated much more harshly than would otherwise be the case. One reason is that the state of Nevada wants to maintain an image suggesting that it is not only “tough on crime” but, more important, casinos are legitimate enterprises where people can come and have fun while feeling safe (see Farrell, R., and C. Case. The Black Book and the Mob. Madison: University of Wisconsin Press, 1995).
 Class C = minimum of one year and maximum of five years in prison; Class D = minimum of one year and maximum of four and the court may impose fines; Class E is the same as Class D except that the judge may suspend the sentence and grant probation. The exact percentages for each of these is: 14% of the males and 9% of females are in on Class C crimes; 17% of males and 8% of females are in for Class D crimes; 9% of males and 3% of females are in for Class E crimes.
 Farley, “Prison crowding targeted in state.”
 A constant flow of e-mails comes my way from friends and family members of prisoners complaining about this process. It’s become so bad that there is probably a few lawsuits in the making.
 There is a considerable amount of research showing that criminal behavior declines significantly with age. Data from the FBI’s annual Uniform Crime Report shows this quite clearly. According to the 2006 annual report more than three-fourths (77.8%) of all of those arrested were under 40. Table 38 of this report clearly shows the declining arrest rates as people age: http://www.fbi.gov/ucr/cius2006/data/table_38.html. See the following study for further documentation: Srivastava, S. et al. (2003). “Development of Personality in Early and Middle Adulthood: Set Like Plaster or Persistent Change?” Journal of Personality and Social Psychology, Vol. 84, No. 5.
 Austin, James and La Toya McBean (2008). “Justice Reinvestment Project: February Update.” Carson City, NV: Presentation to the Advisory Commission on the Administration of Justice, February 11.
 Miller, J. G. Search and Destroy: African American Males in the Criminal Justice System. New York: Cambridge University Press, 1996, p.131.
 Runda, J., E. Rhine, and R. Wetter. The Practice of Parole Boards. Lexington, KY: Association of Paroling Authorities, 1994.
Martha (2006). “Report
discovers state leads U.S. in parole denials.”
 This is taken from the following source: Shelden, R. G., W. B. Brown, K. S. Miller and R. B. Fritzler (2008). Crime and Criminal Justice in American Society. Long Grove, IL: Waveland Press, chapter 18.
 A variety of sources have been consulted for this information, especially a web site called Drug War Facts (http://www.drugwarfacts.org/). See also the following web sites: http://www.drugpolicy.org/homepage.cfm;http://www.drugsense.org/html/; http://www.pbs.org/newshour/bb/latin_america/jan-june01/colombiadrug_03-02.html; http://www.pbs.org/wgbh/pages/frontline/shows/drugs/charts/.
 Miller, R. L. Drug Warriors and Their Prey: From Police Power to Police State. Westport CT: Praeger, 1996.
 The following sources were consulted for the following discussion: Walker, S. (2006) Sense and Nonsense about Crime and Drugs. (6th ed.). Belmont, CA: Thompson/Wadsworth, Chapter 13; Inciardi, J. (2002) The War on Drugs III. Boston: Allyn and Bacon, Chapter 10; Miron, J. (2004). Drug War Crimes. Oakland: The Independent Institute.
 Walker, Sense and Nonsense about Crime and Drugs, pp. 264–265.
 Inciardi, The War on Drugs III, pp. 283–285; see also Clark, T. “Heroin: The Problem with Pleasure” (http://world.std.com/~twc/heroin.htm) and “Keep Marijuana Illegal—For Teens” (http://world.std.com/~twc/marijuan.htm).
 These data are taken from the following sources: “Governor Pushes Legalization of Drugs during U. of Mexico Speech.” Daily Lobo, September 25, 2000; Duhigg, C. “Tokin’ Reformer.” The New Republic, April 3, 2000; Pierce, N. “Prison Reform: A Moment to Seize?” Nation’s Cities Weekly, March 6, 2000; see also the following web sites: http://www.drugwarfacts.org/causes.htm#item1; http://drugpolicy.org/homepage.cfm.
 Inciardi, The War on Drugs III, p. 282.
 Walker, Sense and Nonsense about Crime and Drugs, p. 272. See Shelden, R., S. Tracy, and W. B. Brown, Youth Gangs in American Society (3rd ed.). Belmont, CA: Wadsworth, 2004.
 One of the best books concerning the legalization of drugs is Miron, Drug War Crimes.
 Documented in Inciardi, The War on Drugs III, Ch. 10 and pp. 305–308, and Walker, Sense and Nonsense about Crime and Drugs, Ch. 13. See also Miron, Drug War Crimes.
 Inciardi, The War on Drugs III, pp. 306–307.