BREAKING THE CHAINS

After decades of massive prison growth, America may be ending its love
affair with incarceration. Policymakers around the country, some of whom
previously supported ratcheting up punishments, have begun to rethink the
wisdom of unbridled prison expansion, and are advocating alternatives to
simply "locking them up and throwing away the key." But if our country is
truly to move away from its expensive and ineffective criminal justice
policies, a balanced approach needs to become the rule, rather than the
exception.

It is difficult to overstate the massive increase in the number of
prisoners in the United States over the past two decades. In 1989,
America's prison and jail population topped 1 million inmates for the first
time in our history. Twelve years later, the number of inmates had reached
2 million. By 2001, 5.6 million Americans were either in prison or had
served prison time -- more than the populations of 28 states or the
District of Columbia. The world's most celebrated democracy began the new
millennium with the world's highest incarceration rate.

In the face of such daunting data, however, there is the beginning of a
welcome trend -- born out of a combination of fiscal crises, changing
attitudes about crime and research about the benefits of treatment over
incarceration -- toward a more balanced approach to crime. According to a
report by Judith Greene published by Families Against Mandatory Minimums,
25 states have abolished mandatory sentencing laws, accelerated parole,
increased time off for good behavior, diverted prisoners into treatment or
otherwise curbed the unnecessary use of incarceration. (Families Against
Mandatory Minimums is a sentencing reform group made up of prisoner
families.) More than a dozen states have reduced their prison populations
since 2000; 10 have closed one or more prisons, and two others, including
Maryland, have announced their intention to do so. Arizona, California,
Colorado, Kansas, Missouri, Texas and Washington have reformed sentencing
practices to divert nonviolent offenders from prison into treatment.
Connecticut, Delaware, Indiana, Louisiana, Maine, Michigan and North Dakota
have either abolished or narrowed their mandatory sentencing laws.

The crack in the incarceration dam comes, in part, in response to the
largest state budget shortfalls since World War II. In the past three years
alone, states have faced a combined $200 billion in budget gaps. Meanwhile,
prisons now consume a larger portion of the state budget pie -- $35 billion
annually in 1999, up from $17 billion in 1990 -- rendering them a bigger
target for budget cutters. From 1985 to 2000, prison budgets grew at six
times the rate of higher education budgets.

But it would be a mistake to conclude that deficits are the only factor
driving this trend. State budgets have seen their share of ups and downs
over the past 30 years, but prison budgets have grown relentlessly, in good
times and bad, since 1972. During the recession of the late 1980s and early
1990s, state prison populations rose at a record clip, budget shortfalls
notwithstanding.

So history suggests that dollars have never been the single motivating
factor in prison policies. Rather, some policymakers are stepping back to
evaluate corrections systems, finding that there is a better way to achieve
public safety that is supported by opinion leaders and public opinion alike.

In state after state, research has called into question the effectiveness
of imprisonment and supported the use of treatment and other alternatives
to incarceration -- and policymakers have taken notice.

In support of his drug offender diversion bill, Ray Allen, the conservative
chair of Texas' House Corrections Committee, quoted Rand Corp. findings
showing that, for every dollar spent on treatment, the state would save
between $1.50 and $2. "Treatment works," Allen flatly told the Fort Worth
Star Telegram. Allen's bill, signed into law by Gov. Rick Perry in June,
will divert 2,500 would-be inmates from prison into treatment.

Some policymakers have also expressed dismay about the unintended
consequences of laws passed during the tough-on-crime hysteria of the past
two decades. That dismay has also helped fuel the reforms.

For example, Michigan's former governor, William G. Milliken, urged in
September 2002 that the mandatory sentencing bill he signed into law in
1978 be repealed. "I have since come to realize that the provisions of the
law have led to terrible injustices and that signing it was a mistake -- an
overly punishing and cruel response that gave no discretion to a sentencing
judge, even for extenuating circumstances," he wrote in an op-ed for the
Detroit News. Three months later, Michigan's Republican governor, John
Engler, signed a law, passed by the state's Republican-controlled
legislature, that eliminated most of Michigan's mandatory sentences and
returned discretion over sentencing to judges. The reforms were also backed
not only by Families Against Mandatory Minimums but also by such diverse
bedfellows as the Prosecuting Attorneys Association of Michigan.

Support for reforms is not limited to the states. At this year's American
Bar Association (ABA) conference, Supreme Court Justice Anthony Kennedy
spoke passionately of the "inadequacies and injustices in our corrections
system." The Reagan appointee declared in August, "Our resources are
misspent, our punishments too severe, our sentences too long." As a result
of Kennedy's speech, ABA president-elect Dennis Archer established the
"Kennedy Commission" to examine America's penal policies, making sentencing
reform a major focus of the nation's largest legal association.

Public support for the reforms is a logical extension of the public's
waning appetite for punishment as crime has declined. An ABC News poll last
year found that nine in 10 Americans favor treatment programs over prison
for first-time drug offenders, while a Parade Magazine survey, also last
year, revealed that 88 percent of Americans feel that people convicted of
nonviolent crimes should be sentenced to community service instead of
prison. While 42 percent of respondents to a 1994 Gallup poll thought that
the best approach to crime control was increasing funding for law
enforcement and prisons, only 29 percent of respondents to a Hart and
Associates poll felt that way in December 2001.

Not every state is implementing smart prison reforms, of course. In
several, there has been talk of change, but it has stalled. New York's
legislature and governor have agreed that the Rockefeller Drug Laws, which
mandate life sentences for even first-time drug offenders, should be
amended. But they have yet to agree on an approach, leaving the laws
untouched since the 1970s.

In September, Attorney General John Ashcroft ordered his prosecutors to
seek the most serious possible charges on almost all federal cases.
Ironically, his home state of Missouri passed legislation earlier this year
that will divert 1,300 offenders from prison into community supervision.

Despite notable progress, we have far to go if we are truly to curb our
imprisonment binge. In the final analysis, Justice Kennedy is right: It's
time to forge a new consensus on prison policies. In other words, having
proven we can be tough on crime, we must now show we can be smart on crime
as well.

Vincent Schiraldi is executive director of the Washington-based Justice
Policy Institute.