INMATE OVERCROWDING HITS DANGEROUS LEVEL

Drug users, drunken drivers, probation violators and other non-violent
offenders are crowding into understaffed Arizona prisons in record
droves, fueling a dangerous and unprecedented crisis.

The state's prison population has grown nearly seven times as fast as
the state's population over the past two decades as inmates who
receive little if any rehabilitation return to the lockup again and
again.

With 4,200 inmates over capacity and the potential for danger if
officers lose control, more and more criminal-justice experts,
politicians and judges are demanding changes in how the state doles
out justice.

"Clearly what we are doing now just isn't making sense," said Rep.
Bill Konopnicki, R-Safford, who heads a group of legislators examining
sentencing alternatives. "We take people who do things we don't like
and turn them into hardened criminals."

The Arizona Legislature will meet in special session Monday to
consider, in part, Gov. Janet Napolitano's proposed $26 million
short-term bailout of the prison system.

But critics are calling for more sweeping changes to policies they say
have led to unnecessarily long terms for drug-addicted, uneducated and
unskilled criminals who too often return to the streets worse off than
they went in.

"It is beginning to dawn on people that we've been putting more and
more people away longer with fewer (rehabilitative) services," said
Professor John Hepburn of Arizona State University.

The debate is raging in dozens of other financially struggling states,
where the response has been to ease mandatory sentences, reduce drug
penalties, promote alternatives to prison and release inmates early.

Even some conservatives are rethinking the "tough on crime" policies
of the past 25 years as they face the soaring costs of maintaining
about 2 million prisoners nationwide.

"The systems that most states have built up are very large and
expensive," said Dan Wilhelm of the Vera Institute of Justice in New
York City.

"When times were flush, it was a politically painless policy to
pursue. Now the choices are much more difficult."

In addition to pressing for changes in mandatory minimum sentences,
better rehabilitation programs and prison alternatives, reform
advocates also say the sentencing code needs to be examined to
eliminate unintentional oddities. For example, viewing child
pornography on the Internet carries mandatory consecutive sentences.
The result: Those who view pornography sometimes face longer prison
terms than those who molest children.

But not everybody agrees that Arizona must make major changes to its
criminal-justice system. Some say building more prisons is the answer.
Napolitano wants more than a half-billion dollars to add 9,134 new
prison beds over the next five years, while some Republican
legislative leaders think private companies can build and manage
prisons more cheaply than the state.

Maricopa County Attorney Rick Romley warns that financial
considerations should not override public policy and safety concerns.

"We must consider building more prisons," Romley said. "No one's
showed me that the wrong people are in prison."

Professor Michael Block of the University of Arizona said he does not
believe the prison system is a mess.

"Carrying out punishment is expensive, but there are a lot of bad
actors in this state who usually did some pretty bad things," he said.

Constantly growing

Although possible solutions are up for debate, most agree that
Arizona's prison overcrowding problem cannot go unchecked. The inmate
population, now at more than 31,000, grows by an average of 160
inmates per month. Some of them are housed in temporary beds in
hallways, tents and dormitory double-bunks, a situation that endangers
officers, other prisoners and, potentially, the public at large.

"We are dangerously overcrowded," said Dora Schriro, state corrections
director. "This is pushing the system far further than it should be
pushed."

The overcrowding does not appear to be merely a reflection of
Arizona's rapid population growth. From 1980 to 2000, the state's
population grew by about 90 percent, from 2.7 million to 5.1 million.
Arizona's inmate population grew by about 600 percent, from 3,859
inmates to 26,747 inmates.

The Department of Corrections budget has risen from $32 million in
1978 to $638 million this year, fueled in part by Arizona's high
incarceration rate. At 513 per 100,000 residents, it is the highest of
the Western states and considerably above the national average of 427.
In fiscal 2003, four of five prison commitments in Arizona were for
non-violent crimes.

Most experts attribute the rapid growth in the prison population to
several factors: mandatory minimum sentences, longer sentences,
abolition of parole, the war on drugs and tougher prosecution of
probation violators.

Over the past 25 years, "tough on crime" policies have swept the
country. In Arizona, two major rewrites of the criminal law went into
effect in 1978 and 1994. These reforms, as well as subsequent laws,
reflected attempts by the Legislature to ensure that criminals
received similar prison terms for the same crimes and to restrict
judges said to be soft on crime.

The initial changes established mandatory prison sentences for many
serious crimes, especially for violent criminals and repeat
non-violent offenders. The truth-in-sentencing provisions of 1994
abolished parole and required that all offenders serve at least 85
percent of their sentences.

The result: more prisoners serving longer terms. Since 1986, the
earliest year for which corrections data are available, the average
time served by an inmate in Arizona's prisons has risen to 33 months
from 24 months.

Sources of discontent

As Chief Judge Colin Campbell of Maricopa County Superior Court put
it: The prison system began taking more and more prisoners in while
letting fewer out.

"If we keep feeding the front end and locking up the back end,"
Campbell said, "we'll just keep targeting more capital-improvement
money every (legislative) session."

Another source of discontent for judges and others is the evolution of
punishment policies that have shifted more decisionmaking power to
prosecutors at the expense of judges.

This is because prosecutors usually have leeway in deciding exactly
what charge to bring against a suspect and, thus, can choose to impose
a charge that carries a mandatory minimum term or one that permits
probation. If a prosecutor chooses a charge carrying a mandatory term,
the judge usually must send a convicted person to prison whether the
judge wishes to or not.

"(Lawmakers) really do need to look at the mandatory sentences,"
Campbell said. "Frankly, I think judges should be given more
discretion; that's why we're elected to office."

The concern reaches to the highest level. In August, U.S. Supreme
Court Justice Anthony Kennedy said transferring discretion from a
judge to a prosecutor is "simply unwise."

"In my view our resources are being misspent, our punishments are too
severe and our sentences are too long," Kennedy said. "I accept
neither the wisdom, the justice nor the necessity of mandatory minimums."

Justice Stephen Breyer recently echoed these sentiments, saying other
justices, including Chief Justice William Rehnquist, shared his views.

War on drugs

Drug laws are the category of offenses that critics say are most ripe
for review nationwide. In the past few decades, the crackdown on drug
possession and trafficking at all levels of law enforcement has sent
unprecedented numbers of mostly non-violent offenders to prison.
Nationally, the war on drugs costs more than $40 billion a year and
results in more than 1.5 million arrests, according to the non-profit
Drug Policy Alliance.

During the past fiscal year, about 18 percent of prison entries in
Arizona were for drug offenses. As of June 30, about 1,600 offenders
were behind bars for possession, an additional 3,900 for dealing.
Since 1986, the average time served for a drug offense has increased
to 34 months from 23 months.

Arizona voters addressed the debate in 1996 by approving substance
abuse treatment instead of prison for first- and second-time drug
possessors. In 1999, this law saved the state $6.7 million by
diverting 390 inmates from prison to treatment, according to a study
by the state Administrative Office of the Courts.

But Romley says drug offenders belong behind bars.

"The ones that are on cocaine and marijuana are the ones who beat
their children," he said.

Still, advocates of sentencing reform say rigid prosecution policies
are filling up prisons needlessly.

"The vast majority of crimes are drug-related," said Judge Ronald
Reinstein of Maricopa County Superior Court.

"As a judge, you look at a individual up for selling a rock (of crack
cocaine). The presumptive sentence is, say, five years in prison, but
you have to ask yourself, 'Does this guy need this? He's basically an
addict.' "

DUI offenders are another category of non-violent offenders that are
filling up state prisons. In fact, the state plans to build a
1,400-bed private facility in Kingman just for DUI offenders. In 1986,
the average person imprisoned for DUI served eight months. Now, the
average term is 18 months. In fiscal 2003, about 18 percent of all
inmates entering state prison were there for DUI. As of June 30, there
were 2,577 inmates in prison for DUI.

Konopnicki's group is expected to recommend stiffer initial fines for
DUI to deter offenders from repeating. Now, the fine for first-time
DUI is low - at $250, it is less than some speeding tickets - but
repeat offenders can be sentenced to many years in prison.

Widening the net

Advocates say drug offenses, DUI and other non-violent crimes may be
better punished through community-based programs like home arrest,
electronic monitoring, intensive probation and mandatory treatment
that cost less than the average $20,000 a year it costs to imprison,
feed and take care of each inmate.

Donna Hamm of the Tempe-based Middle Ground Prison Reform said the
state should "widen the punishment net so that there are more
available punishments."

These alternatives allow offenders, in some cases, to stay with their
families, work and continue to pay taxes without the collateral costs
of prison.

Rudolph J. Gerber, a retired Court of Appeals and Maricopa County
Superior Court judge, said as a trial judge he sent too many
non-violent offenders to state prisons only to see them become more of
a threat to the community.

"They would go to the slammer, have contact with hardened criminals
and come back worse than they went in," he said.

Most officials agree that Arizona's prison system does little to
rehabilitate inmates. The Department of Corrections estimates about
half of all offenders return to prison within three years of release.

Within prison, corrections Director Schriro estimates that 75 percent
of inmates need substance abuse treatment or education but that only
23 percent are getting it. Schriro wants to require inmate
participation in core competencies like obtaining a general
equivalency diploma, substance abuse treatment and work skills.

But, to reduce its budget, the department eliminated funding for
substance abuse treatment the past two years, a program that received
$1.2 million a year in the late 1990s. The Legislature has also
transferred $5 million out of inmate drug treatment and alcohol abuse
funds from fiscal 1999 to 2003, according to the Corrections Department.

Schriro wants to reduce the number of offenders imprisoned not because
of new crimes but because of technical violations of their probation
or parole, such as failure to attend meetings and positive drug tests
(nearly half of all prison commitments last year).

For people at risk of revocation, she wants to employ a "continuum" of
intermediate sanctions including home arrest, intensive probation and
short prison stays coupled with intensive rehabilitation.

More than 30 other states have moved recently to alter their
sentencing or corrections policies, according to the Vera Institute of
Justice. Michigan eliminated most of its mandatory minimum sentences
for drug offenses.

Washington significantly reduced sentences for all drug offenses.
Alabama, Louisiana, Indiana and other states have promoted
alternatives to prison.

"Nationally, there's a greater openness to sentencing and drug reform
than we've seen in a long time," said Marc Mauer of the non-profit
Sentencing Project in Washington, D.C.

"That's because the cost has kicked in during the past few years. The
tough-on-crime laws of the '80s came with a considerable cost."