During the past five years there has been extensive discussion in Georgia and nationally about the relationship between prison costs and public safety. Texas and Kansas were the earliest states to enact reforms in 2007. Then the recession hit, inmate counts were viewed as budget busters and other states jumped aboard the reform wagon. Georgia passed significant new law this year and is in the earliest stages of implementation that will take years to evaluate.
Most analysis here and nationally focused on the growth in state inmate populations during the past two decades. That is because politically popular 1990s do-the-crime, do-the-time policies were enacted with faith in the idea that longer time served by bad people would reduce crime.
New research this month from the Pew Center on the States Public Safety Performance Project has concluded, “Experts differ on precise figures, but they generally conclude that the increased use of incarceration accounted for one-quarter to one-third of the crime drop in the 1990s.” States individually have to decide their own balance between some improvement and $10.4 billion in extra cost to state corrections systems.
What we know today – and it took almost two decades to figure this out – is a lot of people sent to prison were non-violent personal drug users who posed little threat to anyone else, or they were sick and needed medical help more than prison time. More states now understand they must decide whether drugs are a crime or an illness.
When you look closer at national data, inmate populations have sharply accelerated for longer than 30 years. The country had 320,000 state prisoners in 1980, about 740,000 in 1990 and that more than doubled to 1.543 million over the next 20 years ending in 2010, according to federal Bureau of Justice Statistics data.
You can go back farther and create an intriguing 1925 to 2010 comparison. Back in the middle of the Roaring 20’s the country had fewer than 92,000 state prisoners and a population of 115 million. If state prisoner and national populations had grown at identical percentage rates today we would have 1.945 billion people in the country. We are very good at locking up people.
Pew’s new report “Time Served: The High Cost, Low Return of Longer Prison Terms” studied data from 35 states including Georgia. Pew said time served by inmates released in 2009 was 36% longer than inmates released in 1990. Longer time served had huge financial impacts on state budgets. Pew says the extra cost in Georgia was $536 million. You can see their calculations here.
“It certainly is understandable that penalties are raised when society or policy makers don’t feel penalties reflect the seriousness of the offense,” said Adam Gelb, director of the Pew Public Safety Performance Project. “But most often that’s not been the driving factor. It was a sense that stiffer penalties would be effective at reducing those crimes.”
Average time served for all crimes increased most in Florida, up 166% compared to the 35-state average of 36%. Georgia was up 75% (sixth highest among 35 states) and North Carolina up 86% (third highest). In time served for violent crimes, Florida was up 137%, North Carolina up 55% (tied for sixth highest) and Georgia up 41% (11th highest) against a 37% average increase.
Drug sentence strategies and time served are an extreme conversation. At one end you have personal users. At the other end you have traffickers and manufacturers. Pew compared time served by the most serious offenders. Florida sentences were up 194%, Georgia was up 85% (fifth highest) and North Carolina up 38% (17th highest). Drug sentences served in Tennessee actually decreased by 9% during the twenty-year cycle.
Florida time served for property crimes grew by 181%, again the largest increase. Georgia was fifth highest at 68%. North Carolina’s increase was 20% and Tennessee sentences were 45% shorter.
Gelb said Pew’s research “reinforces the notion that state policy choices determine or drive the size and cost of state prison populations, not so much crime rates or broad demographic trends. These numbers go up or down based on how policy makers respond to situations rather than forces that are largely out of their control.”
The Department of Corrections says Georgia had 54,373 inmates on June 8 this year; that is up from 52,478 last year. Governor Nathan Deal signed a criminal justice reform law last month that emphasizes alternatives to incarceration for non-violent offenders.
Georgia prisons cost $1 billion a year; probation and parole services add another $400 million. Alternative court programs for mental health and some but not all drug offenders and other changes are predicted to save the state $264 million over the next four years. The belief is these changes can be made without compromising public safety.
Georgia criminal justice reform will extend beyond implementation of this year’s new law. The state Special Council on Criminal Justice Reform will reconvene this summer. Governor Deal has said the council will be asked for juvenile justice and code recommendations that could result in the state’s first comprehensive rewrite of those laws in several decades.
Pew analyzed National Corrections Reporting Program data voluntarily submitted by the states and verified by the U.S. Census Bureau and the Bureau of Justice Statistics. Click here to read the Pew summary. Click here to read state fact sheets.
(Mike Klein is Editor at the Georgia Public Policy Foundation)
Governor Nathan Deal signed criminal justice reform legislation Wednesday, triggering the most aggressive rebranding of the state’s approach to criminal perpetrators in several decades. But one question that needs to be resolved is who’s responsible for making sure this all happens?
It sounds like the answer begins with the Special Council on Criminal Justice Reform whose work provided the structure for Georgia’s new law. Governor Deal signed House Bill 1176 during an upbeat signing ceremony just below the north steps at the State Capitol in Atlanta.
Answering my question after the legislation was signed, the Governor said he would extend the Special Council by executive order, something he has previously discussed. “We believe we should maybe expand the scope of those who are involved in this process as we go forward.”
(Click here to watch the signing ceremony on the Georgia Public Policy Foundation YouTube site.)
Criminal justice reform is a massive undertaking that will require integration of several agencies within state government and that’s a first step. It will further cross deep into other public and private sectors such as the courts, local law enforcement and public and private social services. This will take years to integrate and it will require some kind of way to measure outcomes.
Criminal justice reform is neither conservative nor liberal. It does not have a political party. It is widely recognized as essential in Georgia and other states that are re-evaluating how to make certain dangerous people are locked up and non-violent people with substance abuse issues are placed into programs such as courts that emphasize treatment and require accountability.
Georgia spends $1.1 billion per year to lock up some 56,000 inmates. The criminal justice bill jumps to $1.5 billion with parole and probation. The inmate population grows by about 1,000 per year. Supporters believe reforms that emphasize keeping non-violent people out of prisons could slow the growth rate and save Georgia some $264 million over the next five years.
Programs like the drug court in Hall and Dawson Counties are being heralded as the better idea in Georgia, Texas and many other states with similar reforms. The northeast Georgia programs are administered by Superior Judge Jason Deal whose father has a pretty good job in state government. The father has paid attention to his son’s work.
“To listen to the stories, to the lives that have been changed, the families who’ve been reunited, lives that had quite frankly been cast aside by the system that was in place had a tremendous emotional effect on me,” Governor Deal told 100 onlookers. “I’ve not had anyone who has ever attended the graduation ceremony of a drug court come away saying that they don’t believe there is a better way. This is the better way.”
The Governor continued, “I would invite those who are skeptics to have that same experience. Go attend a drug court, a DUI court, a family court, a mental health court. If you come away believing that it’s better to do it by locking people up I truly don’t think you have paid attention to what we are doing now and certainly I think with this legislation, (we are) giving the opportunity to do more and do it better.”
Deal noted that Supreme Court Chief Justice Carol Hunstein and House Judiciary Chair Rep. Wendell Willard have resumed work on juvenile justice reform and Deal suggested the Special Council will be asked to work on that issue. An exhaustive juvenile code rewrite passed the House this year but then the bill was stopped because it did not have a fiscal note.
The Governor closed with a message to the news media. “Many times when we undertake difficult tasks we sometimes feel that the media is our adversary. That has not been the case in this instance,” Deal said. “Your effort educating the public on the importance of this undertaking has had tremendous positive effects. So, thank you. I hope I can say that more often!”
Several Special Council members attended including Supreme Court Chief Justice Carol Hunstein, Georgia State Bar Association President Ken Shigley and Douglas County District Attorney David McDade. House Speaker David Ralston stood alongside Governor Deal during the ceremony. Lt. Governor Casey Cagle was not there.
(Mike Klein is Editor at the Georgia Public Policy Foundation)
The final breath has been drawn by this year’s Georgia General Assembly. Here is what lawmakers did on seven issues that are closely tracked by the Georgia Public Policy Foundation. This article discusses state charter schools, digital learning, criminal and juvenile justice reform, pension and tax reform, and health care. All of these will require more work going forward and in some cases, much more work starting soon.
State Charter Schools
This November voters will decide who got it right: Lawmakers four years ago when they created a state charter schools commission or the state Supreme Court last spring when it ruled that the commission was unconstitutional. The very fact that voters – not the state Supreme Court and not legislators – will settle this question was by no means assured during the session.
House Resolution 1162 faced a significant hurdle to achieve a two-thirds House super majority and it almost collapsed in the Senate. Opposition came from some of the state’s largest school systems and organizations that represent school boards, superintendents and teachers. Those groups were focused on how to stop voters from having a chance to decide the question.
They might have prevailed until the Senate’s two longest serving members – Democrats George Hooks and Steve Thompson – delivered powerful chamber speeches to explain why they would vote yes. Hooks, Thompson and two other Democrats joined all 36 Republicans to vote for the constitutional amendment resolution. Another “yes” vote in November would start development of a new commission whose bones are contained in House Bill 797.
The commission could approve virtual or brick-and-mortar schools. Students could live within defined local boundaries for traditional schools or statewide for virtual schools. The commission would consider applications only from groups that were already rejected by local school boards. Those same local boards would be permitted to explain why they rejected the application.
New and existing state commission charter schools would receive only state dollars. Traditional schools would be paid operating expenses figured on the state’s school funding formula for the lowest five school systems based on assessed valuation, plus a or capital expenditures amount. Virtual schools would receive two-thirds of the amount given to traditional schools for operating expenses. Schools that offer blended learning – online with a teacher – could receive some capital funding at the discretion of the commission.
“No” from voters in November would render House Bill 797 unnecessary.
State-based digital learning is about to explode in Georgia. Two bills are responsible.
House Bill 175 actually was introduced and passed the House last year. This year it passed the Senate. The bill establishes a clearinghouse of online learning courses that would be managed by Georgia Virtual School (GAVS) at the Department of Education. Courses could originate with public school systems – such as Cobb, Forsyth and Gwinnett school systems that have robust online curriculum – or from other sources that could include online learning companies.
This clearinghouse method has the potential to create vast amounts of content that could be available to any student who has online access anywhere in the state. GAVS serves about 10,000 students with courses that supplement their traditional bricks-and-mortar classroom work. The expectation is that GAVS could serve 100,000 students within just a few years.
Senate Bill 289 takes digital learning another step forward; it directs the state board of education to ramp high school digital learning resources for today’s current sixth graders before they are freshmen in fall 2014. The original Senate bill said those students who are scheduled to graduate in spring 2018 would be required to take at least one online learning course before high school graduation but that language was changed to “maximize the number.”
The clearinghouse would also be managed through the Georgia Virtual School.
Criminal Justice Reform
When the final ink was dry, everyone agreed it is time to move forward with widespread reform. The House voted 162-0 and the Senate 51-0 on final legislation that will emphasize treatment programs over hard-time incarceration for some property crime offenders and low-level drug users. From the beginning supporters said these are not going-soft-on-crime strategies.
New ideas adopted this year recognize the state cannot continue to absorb more than the $1.5 billion per year that it spends on prisons, parole and probation. State prisons hold 56,000 inmates and each day local jails contain hundreds to thousands of inmates who are waiting for an empty state bed. Georgia also has 22,000 adult parolees and 156,000 on felony probation.
New ideas will take years to fully incorporate. They include new and expanded accountability courts, especially drug and mental health courts that will reroute eligible offenders into treatment programs with severe oversight. New definitions and penalty levels were established for several property crimes including theft, burglary, shoplifting and forgery.
The state will move toward prosecution of drug offenses based on the type and weight of drugs to clarify the distinction between casual users, sellers and traffickers. Child abuse laws were tightened as were requirements for reporting suspected sexual abuse and suspicion of human trafficking.
Criminal justice reform is not a single year issue. It will take money and time to develop public and private resources. Sheriffs and the county district attorneys are concerned about the impact of reform on their budgets, facilities and staffs. Everyone already knows this will take a steep learning curve and come corrections are likely. Governor Nathan Deal kept the Special Council on Criminal Justice Reform intact and it is expected to have new assignments this year.
Juvenile Justice Reform
The outlook was bright when the House voted 172 – 0 to pass ambitious legislation that would rewrite nearly every section of the state’s juvenile code. But the outlook proved to be too bright when the Governor’s Office said it wanted more financial analysis and the current bill died.
Much like adult criminal justice reforms, the bill emphasized treatment over incarceration when appropriate for juveniles. It also made changes to policies that regulate foster care, permanent placement hearings, adoption codes, family mitigation hearings, children who are status offenders and the rights of parents. None of the changes would be enacted until July 1, 2013.
Advocates – and there are many inside and outside government — believed they could work out funding details before July 2013 and during the next General Assembly. That strategy came up short at the Governor’s Office and the bill never reached the Senate. It has been at least five years since hard work was begun to rewrite the code and it will be at least one more.
Pension Investment Reform
Pension investment management is an ongoing hedge that contributions and investment returns will continue to generate the cash flow required to pay benefits. Public sector pensions nationally have started to come under pressure as baby boomers began to claim retirements while equity investments were losing billions of dollars and other state revenues were shrinking. Georgia has taken a small step forward to help stabilize its pension system investment returns.
Senate Bill 402 would permit the Employees Retirement System to allocate up to but not more than 5 percent of its available assets into alternative investments that include venture capital pools and other private placements specifically named in the legislation. ERS had $14.9 billion invested on June 30 of last year, about two-thirds in equities and the remainder primarily in U.S. Treasury notes or bonds. Currently, the 5 percent threshold would be about $750 million. The Teachers Retirement System is exempt and it is not allowed to make similar investments.
Many independent analyses have concluded Georgia public sector pensions are better funded at a higher percentage than most other states but Georgia does have a liability position and it needs to close the gap between funds available and owed over time. Georgia is not breaking new ground; it is adopting an investment strategy already authorized in every other state.
The results here were mixed and tax reform requires more work.
Pro-business and economic development changes adopted this year include the elimination of sales tax charged on energy used in manufacturing, agricultural tax relief, reduction of the sales tax paid on jet fuel purchases (to help all commercial airlines) and some other modernization of the tax code. Pro-family changes that will prove to be politically popular include reduction of the marriage penalty on state income taxes and a guarantee that the first $65,000 of income earned by retirees (plus Social Security) will be continue to be exempt from state income taxes.
The motor vehicle revenue structure will change. The state will charge a title fee rather than state and local sales tax on new car purchases after March 1, 2013; essentially, that is a wash. But the state will no longer impose the much hated annual ad valorem value tax on vehicles purchased starting in March next year. The state will continue to impose ad valorem tax on millions of existing vehicles so in practicality, it will take years to fully convert this system.
For the second straight year the Legislature took no action to reduce state personal income tax rates that peak at 6 percent, which are among the highest rates in the southeast. Tax reform also did not address possible state sales tax rate or corporate income tax rate questions. House Speaker David Ralston has said personal income tax rate reform should be a priority.
Additional Resources: House Bill 386.
Health Care Reform
Not much happened in the General Assembly because Georgia is waiting for an early summer U.S. Supreme Court decision in the Patient Protection and Affordable Care Act case.
Georgia is among 26 plaintiff states that are asking the Supreme Court to throw out the law. Nine justices have the option to keep the law as is, throw it out entirely or select bits and pieces to uphold or reject, including the contentious individual mandate. Health care dominoes will begin to fall into a more predictable pattern after the opinion which is expected in late June.
This issue affects every Georgian, whether you work for or own a business, purchase your own health insurance, use public sector programs or have decided you do not want insurance. You could be forced to obtain insurance whether you want it or not, and larger numbers of your tax dollars could be required to support public sector insurance programs.
For example, existing health care law would expand the number of Medicaid eligible Georgians by 650,000 to 750,000 within two years. The anticipated cost to the state in new dollars would be $2.5 billion over ten years, paid for somehow by someone, most likely taxpayers. If upheld, the law would also force Georgia to create a health insurance exchange that it currently does not have, or to accept one that is created and overseen by the federal government.
Several pieces of Georgia legislation were introduced this year that could become the basis for a state-based health care solution if the federal law or portions of it are ruled unconstitutional. None of this year’s Georgia bills passed the General Assembly but they could be resurrected as a package or individually next year. How all this plays out depends on how the Supreme Court feels about the greatest expansion of the federal government into health care since Medicare.
Save the Date: Monday January 14, 2013 for the next Georgia General Assembly!
(Mike Klein is Editor at the Georgia Public Policy Foundation)
Georgia criminal justice reform has passed both chambers but the House would need to agree to substitute legislation because the Senate added seven amendments when it passed the bill 51-0 on Tuesday afternoon. Two other floor amendments failed and two were withdrawn.
None of the amendments dramatically change Georgia’s most sweeping criminal justice reform since a generation of do the crime, do the time laws were passed some twenty years ago.
Governor Nathan Deal made criminal justice reform a major priority during his first State of the State address in January 2011. The work of the Special Council on Criminal Justice Reform last year and the legislature this year are an important first step forward with others to follow.
The satisfaction that was evident because of these reforms is somewhat tempered because the fate of a juvenile justice code rewrite is less certain. Some sources who are familiar with the HB 641 juvenile code rewrite said Tuesday that the bill is dead this year because it still requires more financial analysis of the impact that would be made by proposed changes.
So for the moment the spotlight shines on adult criminal justice system reforms.
Monday afternoon Sen. Bill Hamrick outlined changes to burglary, forgery and other sections when he presented House Bill 1176 to the Senate. Hamrick is co-chair of the Special Joint Committee on Criminal Justice Reform. One amendment would reduce the number of felony burglary levels from three in the House version to two in the Senate version.
“After discussion with prosecutors we believe it was a little too complicated and so we’ve narrowed it to two,” Hamrick said about the burglary section. Residential burglary would become a first degree felony and all other burglaries would become second degree felonies. The House and the Special Council on Criminal Justice Reform both said that burglary of an occupied home should be treated different from burglary of unoccupied sheds or buildings.
The Senate version would also change the forgery statute. “Checks are the most common type of forgery,” Hamrick said. Felony check forgery would be established at $1,500 and above, or possession of ten or more blank checks that were intended to be passed as forged checks. Forgery of checks valued at less than $1,500 would be prosecuted as misdemeanor offenses.
Other changes would assist counties with drug court funding, assist state courts if their case loads grow due to other criminal justice reforms, make sure misdemeanor crimes are counted when a person’s recidivism record is being reviewed and strengthen the state’s prosecution language for persons who are charged with trafficking a person for sexual purposes.
There was bipartisan enthusiasm for reform on the Senate floor. “It is my hope that not only can we pass this unanimously but also look toward some of the remaining issues that in the future may need to be addressed,” said Democratic Sen. Emanuel Jones. Gov. Deal has kept the Special Council on Criminal Justice Reform intact and its work is expected to continue this year.
The intent of this two-year reform initiative is to slow down the anticipated growth inside Georgia prisons by emphasizing alternatives to incarceration for non-violent property crime offenders and personal drug abusers who would benefit more from intense treatment programs.
Twenty years ago Georgia had a $500 million state prisons budget and about 30,000 inmates. A generation of popular do the crime, do the time laws exploded the prison population. Today the state has 56,000 inmates and a $1.1 billion prison budget plus several hundred million dollars more for parole and probation. Georgia faced having 60,000 inmates plus $264 million in additional new cost within four years if the state did nothing about criminal justice reform.
Another section in the new law would change public access to records kept on persons who are charged but never prosecuted or charged but never convicted. The charge — regardless of the outcome — often makes it difficult and sometimes impossible to find employment, which is one of the two key factors in rehabilitation. The other is available secure housing.
Hamrick noted people who have an arrest but no conviction “deal with that on their record for the rest of their life, basically. We have some provisions in the bill that would allow for those records to be restricted when a person is applying for a job but not restricted to the extent that law enforcement or judicial officials would not get that information.”
The House and Senate are not in session Wednesday. House consideration of the Senate amendments will become an agenda for the 40th and final day on Thursday.
Georgia General Assembly sessions usually move at NASCAR speed into the final few days but some of the highest profile pieces are finished before next week’s final three days.
Thursday afternoon the Senate unanimously approved tax reform and the House passed criminal justice reform. The tax bill is ready for Governor Nathan Deal’s signature. The Senate must still debate and vote on criminal justice and that is expected on Monday.
The Senate approved tax reform 54-0. The House approved criminal justice reform 164-1 but the single no vote was later changed to yes. Tax reform is one of two big dominoes that fell this week. Monday afternoon the Senate passed the controversial charter schools constitutional amendment resolution with a more than 40-vote two-thirds majority supplied by all 36 Republicans joined by four Democrats.
Thursday afternoon’s tax and criminal justice floor debate in both legislative chambers could best be described as courteous and gentle. There was nothing rancorous heard in either chamber. A few soft blows were landed but there never was any doubt that both bills were headed toward huge approval votes.
Supporters describe tax reform legislation as pro-business and pro-family. It creates a sales tax exemption on energy used in manufacturing. Other tax changes would replace vehicle sales and the annual ad valorem taxes with a one-time only title fee; provide some tax relief to agriculture, reduce sales tax paid on jet fuel sales by one-fourth; and, modernize the tax code for small businesses.
Tax schedules would change to ensure that married couples are not penalized by filing a joint return instead of filing individually. Retirees will continue to be allowed to exempt their first $65,000 in earnings from state income tax; the exemption level was scheduled to increase but now it will be frozen. School supplies sales tax holidays were reinstated for this year and next year. And, the state would begin to require the collection of sales tax on most internet sales.
Click here to read tax reform analysis published today by the Georgia Public Policy Foundation President Kelly McCutchen.
Criminal justice reform is intended to save the state some $264 million over the next four years by emphasizing alternative treatment programs to incarceration for non-violent offenders. Reforms emphasize alternatives to incarceration for non-violent offenders who are not considered a threat to public safety. Simple possession drug users could be eligible for treatment programs but the legislation makes a distinction between users and drug traffickers. Drug and mental health courts are big components of the new model, relying public and private community programs to provide treatment.
The General Assembly is not in session on Friday and no committee meetings are scheduled. Floor sessions will be held Monday and Tuesday. There will be no floor session Wednesday. The 40th and final day is scheduled next Thursday.
(Mike Klein is Editor at the Georgia Public Policy Foundation)
The second version of criminal justice reform legislation is better than its earlier cousin because of what the bill does not include – hundreds of lines of rules and regulations about how to run the state probation and parole programs.
The absence of a legislative mandate means there would be more flexibility to expand programs that work and jettison those that are found to be wanting. One example is electronic monitoring which is being successfully developed inside the state parole program.
The House was expected to debate and approve the criminal justice reform substitute bill today. It would firmly commit Georgia to incarceration alternatives for non-violent offenders, especially mental health and drug court treatment options.
The state would continue to lock up violent criminals for as long as they deserve. State corrections personnel would also work with local law enforcement agencies to further alleviate local jail overcrowding. That was an early local concern about the bill.
The original version introduced a couple weeks ago included 17 pages and nearly 600 lines of rules and regulations about such things as community service as a condition of probation, penalties for probation violations, parole supervision, records requirements, how to integrate parolees back into society, new hearings for parole violators and quite a bit more. Those sections are gone and we are told the decision was to address those issues administratively.
The legislation includes revisions that are consistent with 2010 Special Council on Criminal Justice Reform recommendations, and that is the best measure of whether this is a good bill. The Council was asked to address the growth of the state’s prison population, improve public safety by reducing crime and recidivism and hold offenders accountable by strengthening community-based supervision, sanctions and services.
There is a significant emphasis on non-violent property crimes and simple possession of drugs. Those two categories account for more than half of all state prison admissions and they are a primary reason that state corrections system costs have grown from $500 million annually 20 years ago to $1.1 billion annually now.
The bill would establish three burglary categories with a distinction between the burglary of a residence or an unoccupied structure. Several penalty levels are built into the bill based on contributing factors such as whether the burglar was armed or a residence was occupied at the time of the crime. The substitute legislation removed a distinction about burglaries committed after sunset and before sunrise because it was considered vague.
Georgia theft statutes have not been updated in about 30 years. The bill would raise the felony theft threshold from $500 to $1,500 – a similar change has been made by many states during criminal justice reforms. The felony shoplifting threshold would increase modestly from $300 to $500. Retail criminals who routinely stay below the felony shoplifting level will be dismayed by new language that would aggregate the value of their thefts. The value of property stolen over a 180-day period could be aggregated to reach the felony level.
The expansion of weight-based drug sentencing would phase in over two years starting in July 2013 to give the Georgia Bureau of Investigation time to improve its capabilities. The new bill would also adjust some sentences. For instance, conviction for possession of an illegal substance that weighs less than two grams would carry a three-year maximum sentence; the original bill specified a five-year maximum sentence. Similar minor modifications would be made to other sentences.
The Special Council made no child abuse law recommendations. The revised bill includes language that would require mandatory reporting of suspected child abuse by “reproductive health care facility or pregnancy resource center personnel and volunteers.” This would include employees of facilities that perform abortions when there is suspicion about the cause of pregnancy.
No doubt there is significant cost associated with the implementation of these and other recommendations. Some of it is being handled inside the state budget, for instance, more beds outside prison for non-violent offenders. Other ideas are included. The bill proposes that offenders who are accepted into mental health curt treatment programs could be charged a $1,000 participation fee with an option that the fee could be waived or collected monthly. The fee would help cover costs to administer the programs, many of which would not be state-funded programs.
House approval would move the bill to the Senate for a vote expected next week.
(Mike Klein is Editor at the Georgia Public Policy Foundation)
The next version of criminal justice reform legislation should look more like last year’s special council recommendations without extra window dressing that somehow worked its way into HR 1176. A new bill could be ready later this week or early next week. Then the rush starts anew because the General Assembly is trying to complete its business before the month ends.
Four months have passed since Special Council on Criminal Justice Reform recommendations and nearly two weeks since eight hours of hearings on the original HR 1176. The basic premise behind this bill is that Georgia should adopt alternatives to prison for nonviolent offenders.
One area to look at closely will be whether judges would have sole discretion or whether judges and prosecutors together would decide which drug users are eligible for drug court treatment programs. District attorneys have been adamant that they want a voice in those decisions.
Also, watch to see whether an extensive section about child abuse laws survives the cut; it was not part of the Special Council’s work. And a paragraph about what clergy is required to report or not report after a parishioner confesses to a crime could be on the chopping block.
It is almost certain Georgia will expand weight-based drug prosecutions. The Special Council said members “discussed creating a simple possession for cocaine and methamphetamine below a specific amount such as 1 gram.” About three dozen states have already adopted some version of this, including North Carolina, South Carolina, Tennessee and Florida.
One example from the original HR 1176 proposes to create simple possession categories of illegal drugs that weigh less than one gram, at least one gram but less than four grams, at least four grams but less than 28 grams and 28 or more grams.
Sentencing ranges could change. First offense convictions for simple possession of one gram of solid drugs or one milliliter of liquid drugs would carry a one-to-five year sentence, down from two-to-15 years but Georgia’s new sentences would still be stricter than in some other states.
South Carolina created probation and suspended sentence options for first and second drug possession offenses, except trafficking. Kentucky modified first degree possession for personal use to a three-year maximum sentence rather than five. Kentucky reforms enacted by last year’s legislature make a specific distinction between drug users and drug traffickers.
Arkansas enacted weight-based prosecutions for personal use possession ranging from just a few grams to trafficking possession of drugs that weigh several hundred pounds. Arkansas also equalized penalties to erase disparities in crack cocaine and powder cocaine possession.
Expansion of weight-based prosecutions absolutely would have some impact on seven Georgia Bureau of Investigation crime labs that process evidence for 25,000 felony narcotics cases per year. GBI director Vernon Keenan told legislators the labs typically have a 5,000 case backlog which means evidence has been waiting to be analyzed for at least 45 days.
The Special Council report said GBI drug analysis costs might increase by $1-to-$1.3 million per year. But when Keenan testified at a State Capitol hearing he cited closer to $5 million more for new staffing and equipment. “That’s also provided we can hire all the scientists,” Keenan said.
Atlanta attorney Jack Martin had a hard time believing the anticipated cost projection. “I would just ask you to find out, where does that come from?” said Martin, who spoke on behalf of the Georgia Association of Criminal Defense Lawyers. Martin said any new costs “would be chump change (compared to) what we’re talking about here and the savings we would be getting.”
Responding to an inquiry, this week a GBI spokesperson said increased costs were reviewed again since director Keenan’s testimony. The new estimate is that 17 new scientists would cost $1.1 million per year and the bureau would need a $1.2 million capital expenditure for equipment to handle testing outlined in the original HR 1176.
There also has been some concern that state crime lab backlogs might increase the time before cases reach trial. Douglas County District Attorney David McDade, who is president of the Georgia District Attorneys Association, said he prefers changes to sentencing options over the expansion of weight-based drug prosecutions.
“Having said that, I want to make it very clear drugs are not always a victimless crime,” McDade testified. “I want to be very careful in making certain that you understand there could be a perception created if we went to a sentencing model that was perceived as being less stringent or always inviting only a probationary type of sentence that it would lose its deterrent effect.
“Most prosecutions for homicide in my circuit are driven by drugs,” McDade added. “Most violent crimes that I prosecute are drug-involved. Just because a person possesses a drug it’s rarely a victimless crime.” Cobb County District Attorney Pat Head also testified he prefers graduated sentencing options rather than the adoption of new weight-based drug prosecution.
Rep. Rich Golick is co-chair of the House – Senate special committee that is drafting HR 1176 and its revisions. The Smyrna legislator has spoken about the need to simplify the legislation and during the recent State Capitol hearing he seemed open to enhanced sentencing options.
“Why not do it just through the sentencing range?” Golick asked after he listed to testimony for and against weight-based prosecutions. “It’s not simple but if we can simplify it somewhat by getting away from weight and getting toward the same goal but through a less complicated system that focuses just on the sentencing range, why not?”
(Mike Klein is Editor at the Georgia Public Policy Foundation)
There are many different kinds of snakes and though I like none of them, I am willing to concede that some can attack and kill you while others are mostly just a nuisance. The part that I am not quite so good at is figuring out which snakes to fear and which snakes to just closely monitor.
A lot of folks in Georgia are trying to figure out which drug abusers to fear and which to closely monitor. It is an inexact science that no doubt will produce examples of success and failure.
Reform ideas include a strategically different approach that emphasizes less costly treatment programs over more costly incarceration for drug abusers who otherwise have clean records and who are not considered a public safety threat. The shift in strategy would treat some drug abuse as an illness rather than as a crime.
This model has been adopted or is under consideration in many states like Georgia that also can no longer afford to build and maintain new prisons. Adult inmates with drug abuse or mental illness histories – and often both – have overburdened state corrections.
The challenge is neither easy nor new. A December 2002 sentencing commission report submitted to outgoing Gov. Roy Barnes stated, “Use of Georgia’s prisons must be more heavily concentrated on the criminals who pose the greatest danger to our communities, and credible alternatives must be created for drug offenders and others who do not need a hard time in prison.”
In language not much different from what we hear today, the commission described the need “to break the seemingly endless cycle of crime and addiction for thousands of offenders, ease the strain on Georgia’s courts, jails and prisons and make our communities safer.” It further said, “After more than 15 years fighting the current war on drugs, judges, prosecutors and defense attorneys are frustrated and ready for a change.”
The purpose of the commission was to better standardize how judges sentence offenders. Ten years ago the state was worried it might exceed 50,000 prison inmates. Today it has about 56,000 inmates with forecasts the state prison population could reach 60,000 within four years. The adult prison system population increases by about 1,000 inmates per year
There is widespread agreement that illegal drugs – and increasingly, abused legal prescription drugs — are linked to virtually all Georgia crime. That was one finding last year by the Special Council on Criminal Justice Reform. It is reflected in the 75-page reform bill now before the General Assembly, and it was a recurring theme during eight hours of committee hearings. But there are legitimately different points of view about drug treatment vs. incarceration.
That was evident during an exchange between state Rep. Jay Neal and Cobb County District Attorney Pat Head. Neal is a member of the House – Senate committee that is drafting criminal justice reform legislation. Neal strongly supports alternative treatment options and he has been very outspoken, often recalling his experiences as a pastor helping congregants.
“If it’s somebody that’s not a threat to society and the crime is addiction driven crime, we need to be doing everything we can to not put them in prison so they can get a graduate degree in crime so they come out and be a threat to society,” Neal said.
Cobb district attorney Head replied, “I’ve got to respectfully disagree. Many of the murders we have are committed by people who are drug addicts. The aggravated assaults, the burglaries in the home, those are people that I am afraid of. If we keep letting people who are addicted to drugs not have to face any serious consequences for that addiction they will, in my humble opinion, they will ultimately hurt somebody.”
“That’s where the risk / needs assessment comes in because we can begin to see when they start trending toward true criminal behavior to be afraid of. We can typically see that,” Neal said. Head replied, “I haven’t seen the assessment that will give me that information yet.”
Many drug treatment vs. incarceration principles were developed in Texas where Marc Levin of the Texas Public Policy Foundation says risk /needs assessment tools have become increasingly accurate for evaluation of low, medium and high risk offenders.
“Of course, just as in driving a car or flying a plane, a zero-based risky society is not realistic,” said Levin, who is a former Texas Supreme Court staff attorney, “but corrections personnel have a far better ability now to match the right offender with the right program or intervention than just a few decades ago.”
Georgia legislators have a very short calendar to decide how much criminal justice reform they are comfortable with this year. There are three or maybe four weeks left in the current session. The bill is big; it contains a lot more than deciding how to balance drug incarceration or treatment options. But ultimately, that is the biggest piece and it is the one that must be decided first.
(Click here to read a Bloomberg BusinessWeek article about Georgia criminal justice reform.)
(Mike Klein is Editor at the Georgia Public Policy Foundation)
Thursday morning a House and Senate special committee will gather to discuss mission creep. That is not the official name of the hearing, also known as the first hearing to consider criminal justice reform legislation, but it might just as well have been advertised as mission creep.
Georgia criminal justice reform legislation is many things, nearly all of them positive, but it also is an example of mission creep. To understand whether House Bill 1176 hit or missed the mark, let’s begin with the assignment given to last year’s Special Council on Criminal Justice Reform:
“Address the growth of the state’s prison population, contain corrections costs and increase efficiencies and effectiveness that result in better offender management; Improve public safety by reinvesting a portion of the savings into strategies that reduce crime and recidivism; and, Hold offenders accountable by strengthening community-based supervision, sanctions and services.” That language is directly taken from the Special Council’s final report.
Nothing in that challenge asked the Special Council to consider child abuse statutes, change state rape laws or address whether religious clergy should be required to report crimes that parishioners admit during confession. However, all of that is found in the current HB 1176.
Georgia is not a criminal justice reform trendsetter. Many states – some here in the southeast – have enacted or considered changes to reduce prison populations, address recidivism, improve community treatment programs, reduce state costs and ease the burden on crowded courts.
There might be many good reasons to consider child abuse statutes, change state rape laws or address whether religious clergy should be required to report crimes that parishioners admit during confession. But using HB 1176 as the vehicle for those goals is mission creep. Those ideas – which might be very good ideas – need to be considered on their own merits.
The principles behind criminal justice reform include incarcerating those people who can do us harm, treating those people who need help more than they need incarceration, keeping the public safe and reinvesting prison system dollars into treatment programs. This is quite a leap from do the crime, do the time principles that caused prison overcrowding here and nationally.
Criminal justice reform asks us to make a fairly significant philosophical leap: Will we continue to treat the people who can do us harm the same as those who merely need our help, or, will we create new approaches that incarcerate the people who have done the most harm, and likely would do so again, but create new paths for those who most often do harm only to themselves?
Some of these numbers are frightening. Georgia’s state prison population – men and women – has grown from fewer than 30,000 two decades ago to 44,000 in the year 2000 to 56,000 today with projections of 60,000 within four years if we make no fundamental systemic changes. We add about 1,000 new people to the prison population each year, above and beyond those who are released.
The number of Georgians on parole –22,000 – is up 9 percent and the number of Georgians on probation –156,000 – is up 22 percent since the year 2000. One-in-13 Georgia adults is behind bars, on parole or on probation – the highest percentage in the nation. The annual cost to fund our penitentiaries has swollen from $500 million per year two decades ago to almost $1.1 billion.
Our state prisons operate at 107 percent capacity. At any moment several hundred more inmates are held in local jails because there is no room for them in the state penal system. Sure, we can build more prisons, but it costs $80 million to build a prison. It costs millions more dollars every year to feed and clothe inmates and pay for their health care, millions more to hire staff to run those prisons.
And what do we get for all this spending? We get a 30 percent failure rate – measured as the percentage of released inmates who are back behind bars within three years. We spend $1.1 billion per year to sustain a 30 percent failure rate. A private sector business would not last very long if its products routinely posted a 30 percent failure rate.
Thursday morning the House and Senate special committee that sits down to discuss criminal justice reform should begin by deciding how to trim out the mission creep add-ons that do not directly address the urgent need we have to adopt meaningful criminal justice reform in Georgia.
Criminal justice reform is arguably the most serious work of the 2012 General Assembly. It needs to remain on-point and focused. Other good ideas should be handled on their own merits as separate legislation.
(Mike Klein is Editor at the Georgia Public Policy Foundation)
Criminal justice reform legislation introduced this week contains highly anticipated alternatives to incarceration such as expanded drug treatment courts, along with probation and parole revisions, and modifications to burglary, forgery and theft statues. We knew that was coming.
Some sections of House Bill 1176 that were not expected include extending the statute of limitations on prosecution of child abuse cases – this was not a specific focus of work done last year by the Special Council on Criminal Justice Reform — and religious clergy might well be surprised to learn they are mentioned in the criminal justice reform conversation.
Gov. Nathan Deal’s office already signaled the current bill is not good enough. “It doesn’t achieve exactly what we wanted,” said press secretary Stephanie Mayfield. “One of our main things is to spend taxpayer dollars wisely. The initial bill isn’t something in its current form that we think does that to its best ability but again, it’s in the initial stages. It is a starting point.” The legislation was submitted without a fiscal note.
HB 1176 will be vetted by a joint committee of senators and representatives. It can be amended in hearings. The bill is not hogtied by the Day 30 Crossover rule next Wednesday. The first committee meeting could occur toward the end of this week, but none is currently announced.
There are no child abuse recommendations in the Special Council final report and definitely no members of the clergy. The bill states “a member of the clergy shall not be required to report child abuse received solely from a perpetrator of the child abuse through confession or other similar communication required to be kept confidential under church doctrine or practice.”
HB 1176 also states, “When a clergy member receives information about child abuse from any source, the clergy member shall comply with reporting requirements … even though the clergy member may have also received a report of child abuse from the confession of the perpetrator.”
The consensus of people we spoke with on background is that the legislation submitted Monday needs work so what we see now is not likely to be what we will see later. Here are comparisons of some but not all Special Council recommendations and the proposed HB 1176 legislation:
Drug and Mental Health Courts: The Council recommended expansion of alternative treatment courts. The bill discusses how to certify existing drug courts, create new ones, and also how to pay for their staffing and associated costs. State funds, other public funds, federal grants and even donated dollars could help defray drug and mental health court costs. Risk and needs assessment of offenders are emphasized in language that pertains to drug and mental health courts. Gov. Deal included millions of dollars to expand drug courts in his fiscal 2013 budget.
Drug Crimes: Some drug crimes would be prosecuted based on the types of narcotics and the weight of the seized evidence. This approach would make a distinction between personal users whose problems are addiction and traffickers who are dealing narcotics. The Council approach was adopted in the legislation. Some prosecutors are skeptical about changes to drug laws.
Mandatory Minimum Safety Valve: The Council recommended that judges be allowed to depart from mandatory minimum sentences in some drug trafficking cases, with the court required to state the circumstances and the reasons for its decision. This idea is not included in HR 1176.
Theft, Forgery and Burglary: The Council recommended and the legislation contains new felony thresholds in these three categories. To cite one example, the Council proposed an increase in the felony shoplifting level from $300 to $750. The bill as proposed says theft valued at less than $1,000 would be considered a misdemeanor. Several burglary categories would make distinctions between residential and other kinds of burglaries, and even time of day.
Rape Laws: The legislation would remove the words “prosecution for the crime of forcible rape must be commenced within 15 years after the commission of the crime” from current state code. There was no Council recommendation about changes to rape prosecution laws. Later, the bill says cruelty to children, rape, aggravated sodomy, child molestation, enticing a child for indecent purposes and incest could be prosecuted at any time when the child is under 16 years old on the date of the violation.
Personal Criminal Records: HB 1176 contains extensive discussion about restriction of access to and disclosure of individual criminal history records. Again, the Council made no recommendations.
Performance Incentive Pilot Projects: Special Council members proposed that the state and up to 10 local communities create pilot projects to reduce recidivism. Communities that returned fewer people to state prisons would be able to receive a share of state dollars not spent on incarceration. Performance incentive pilot projects are not included in HB 1176. However, this idea might not require legislation and could possibly be done administratively.
Pre-Sentence Risk Assessment: The Council emphasized risk assessment. Legislation would create a five-year window beginning in January, 2013 to start and assess pilot projects. If the concept proves successful a statewide model would be created in July, 2018. The focus would be on “the lowest risk, prison bound, nonviolent drug and property defendants.”
Parole and Probation: The Council proposed and the legislation includes several ideas to improve supervision of offenders in the community. Mandatory supervision would be required for all offenders who serve their maximum prison sentence. Earned compliance credits would allow parolees and probationers to reduce their supervision time when they satisfy all terms of their supervision. Parole and probation officers would be permitted to impose additional sanctions on individuals who violate the terms of their supervision. These ideas are aimed at reducing recidivism.
Electronic Surveillance: Eligible probationers – the state has 156,000 – and eligible parolees – the state has 22,000 — would increasingly find themselves tethered to electronic surveillance, including global positioning satellite systems. Alternative methods of tracking non-violent, low-risk probationers and parolees were emphasized by the Council and included in the legislation.
Minor Traffic Offenses: The Council proposed decriminalizing minor traffic offenses that could be satisfied by paying a fine. The rationale was it would relieve pressure on the courts so judges could concentrate on more significant cases. This idea is not in the bill.
The criminal justice reform conversation remains fluid. It would not be surprising if stakeholders move ahead on areas where they agree and defer other decisions until next year.
(Mike Klein is Editor at the Georgia Public Policy Foundation)
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