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Oregon Rethinking Criminal Justice Policies to Avoid Fiscal Crisis

Oregon is one of ten states in “financial peril,” according to a November 2009 report by The Pew Center on the States. Thanks in large part to the state’s criminal justice policies of the last 20 years, Oregon faces an expected $3.5 billion shortfall in the 2011-13 biennial state budget, and “the shortfall between revenue and expenses is expected to remain at more than $2 billion” over the next decade.

To address this crisis, outgoing Oregon Governor Theodore Kulongoski issued an executive order establishing a Governor’s Reset Cabinet to explore inefficiencies at all levels of state government.

In June 2010, the Reset Subcommittee on Public Safety issued a report that focused on two of the “three main cost-drivers in building and operating prisons” – who is sent to prison and for how long.

Since the 1985-87 biennium, the Oregon Department of Corrections (ODOC) “has increased expenditures by 209 percent,” according to the Subcommittee report. ODOC now accounts for 53 percent of the state’s public safety spending and about 10 percent of the entire general fund.

In the last two decades ODOC’s budget has increased to a current two-year budget of $1.36 billion. That amount “is expected to grow at an unsustainable rate if we continue the policies in place today,” said Kulongoski. “Now let me ask you this: Have we more than doubled our investment in students over that same period? Not even close.”

ODOC’s April 2010 prison forecast predicted that “2,000 additional prison beds will be necessary to carry out our current sentencing policies – pushing the prison population to 16,000 by 2020.”

This follows two decades of unprecedented growth. “Over the past twenty years, Oregon has more than doubled the number of offenders incarcerated in the state corrections system – largely through the adoption of mandatory minimum sentencing structures by the voters,” the Subcommittee noted. Additionally, “increased sentence length or its threat has increased the amount of time offenders spend in prison.”

An examination of prison reform efforts in other states revealed an encouraging common theme. Many states are increasingly investing in substance abuse and mental health treatment, as well as housing and employment for released prisoners and community-based sentencing options, the Subcommittee observed. Additionally, “many states reward prisoners for successful completion of prison programs.” Most importantly those states “have largely avoided having to increase prison beds.”

The Subcommittee proposed several long- and short-term options to avoid Oregon’s unsustainable prison population growth.

Among the long-term options, the Subcommittee recommended the creation of “a modern system of uniform, transparent, and proportional sentencing guidelines practice.” This would include indefinitely suspending the construction and opening of new prisons, and stabilizing and potentially reducing the use of existing prison beds as the new guidelines take effect.

The Subcommittee also recommended that Oregon “adopt the federal system of 15 percent earned credits for offenders including consideration of federal policies on the use of halfway houses and electronic monitoring during the final year of sentencing” for all prisoners not serving life sentences.

In what would have been political suicide just a few years ago, the Subcommittee raised the possibility of easing the mandatory minimum sentencing schemes that have cropped up almost annually since 1994.

In the short-term the Subcommittee recommended, “as a temporary measure only,” that ODOC be granted the authority “to allow some offenders to serve the final year of their sentence” in halfway houses, on electronic detention or in day reporting programs.
The Subcommittee report also suggested increasing substance abuse treatment for prisoners, finding that “over 70 percent of the offenders in Oregon prisons need some level of ... treatment.”

On December 27, 2010, ODOC Director and former state legislator Max Williams confirmed those numbers. “As of December 1, 2010, 1,579 inmates were identified as having ‘severe addiction’; 6,356 inmates were identified as having a ‘severe problem’ with alcohol and/or controlled substances; and 2,264 had a ‘moderate problem,’ Williams wrote. “A total of 10,379 inmates or approximately 75% of those inmates currently incarcerated in the Department of Corrections are in need of some level of alcohol and drug treatment intervention.”

Given that Governor Kulongoski waited until he was leaving office to raise these issues, many feared that the Subcommittee’s findings and recommendations were meaningless. But perhaps not.

With just one month left in office, Kulongoski signed a December 9, 2010 executive order creating a state Commission on Public Safety which will be led by the governor, Oregon Supreme Court Chief Justice Paul DeMuniz and legislative leaders.

The idea for the Commission came from the Public Safety Subcommittee report and is supported by incoming Governor John Kitzhaber – who governed Oregon through the “tough-on-crime” movement of the 1990s, which spawned the largest prison building boom in Oregon history that has contributed to today’s fiscal crisis.

“With limited dollars, we must ensure the public’s safety by making smart investments across our adult and juvenile justice systems that are also sustainable through the good and bad economic times,” said Kulongoski.

Governor Kitzhaber appears to be singing the same tune. “Let me be clear about one thing: We will spend these resources in a way that keeps dangerous people in prison and out of our communities,” he stated. “At the same time, we need to recognize that our long-term goal is to invest in people, not prisons – to keep kids in school and the workforce and out of the criminal justice system in the first place.”

Kulongoski echoed those concerns. “So we have a real dichotomy, which I would summarize as: locking up more people versus providing our children with a better education,” he said. “There is a great imbalance between how we invest in incarceration and how we invest in education. And right now children are trapped in the losing end of the imbalance. It’s not right. It’s not fair. And most of all, it’s not smart.”

Regardless, when it came time to make cuts in the 2011-2013 biennial budget, Governor Kitzhaber initially targeted the Oregon Youth Authority (OYA) for $34.5 million in cuts, or about one-fifth of the agency’s general fund budget. The legislature eventually decided to reduce the OYA’s budget by around $11 million, plus cut $4 million from ODOC’s $1.36 billion biennial budget. [See: PLN, Oct. 2011, p.36].

The Commission on Public Safety will review Oregon’s public safety practices and recommend more flexible sentencing and other improvements.

One of the greatest barriers to reform in Oregon has been divisive political rhetoric, pitting the “tough-on-crime” camp against those who espouse “smart-on-crime” policies. “Rather than debating who is ‘tough on crime’ or ‘soft on crime,’ the subcommittee hopes that our elected officials will emphasize that the most effective way to keep citizens safe with the limited taxpayer resources is being ‘smart on crime,’” the Reset Subcommittee wrote in its report.

Kulongoski explained that he expects the new Commission to examine “good, evidence-based, practical information ... so you have a more cost-effective prison system, so you’re smarter, and you’re fairer, and you could put the word ‘tough’ in there.” He repeated that the goal is not to get “soft on crime” but rather to embark on a less costly approach to ensuring offender accountability and public safety.

“To catch the few, we’ve cast this net and we’re catching a lot of people,” said Kulongoski. “And it would be a lot smarter and a lot more cost effective to do something other than housing them in a prison.”

Again, Governor Kitzhaber appeared to agree. “The bottom line is, we’ve got 14,000 prison beds and the challenge is to manage the use of those beds to ensure we don’t have to build and operate another prison,” the governor stated.

Kulongoski acknowledged that reduced prison sentences or alternatives to incarceration are likely to produce the greatest potential public safety cost savings. Indeed, extra earned time granted to certain prisoners saved the state an estimated $25 million in 2009 according to an audit by the Secretary of State’s office. However, the extra earned time statute will expire in 2013. [See: PLN, Sept. 2011, p.12].

Kulongoski would not say whether the Commission will propose reforming Oregon’s multitude of voter-approved mandatory sentencing laws. Still, he made his opinion clear.
“You cannot have these measures on the ballot every two years that add more and more costs to the system,” he declared.

Even in the face of overwhelming evidence, Kevin Mannix, a former lawmaker and chief proponent of Oregon’s mandatory sentencing laws, refused to acknowledge that his measures had contributed to Oregon’s current fiscal crisis.

“Kevin Mannix never puts a price tag on any of his measures,” noted state Senator Chip Shields. “He’s OK with us taking money from K-12 [education] to pay for them.”
Mannix countered that the problem was not sentence length, but how efficiently prisons and other public safety agencies are operated.

“National statistics show our per-day costs for inmates in the Oregon system are seventh highest in the country,” he said. “Yet, our incarceration rate is 30th. So it’s not a matter of long sentences costing us money; it’s how we spend the money in the prisons. We need a comprehensive revisiting of how we run our Department of Corrections.”

Mannix was referring to a report by the National Institute of Corrections, which found that Oregon’s 2008 annual cost per prisoner was $36,060 compared with a national average of $24,052.

“Oregon’s prison system does lean to one of the higher cost systems in the country,” Williams acknowledged. “But most of that is driven by labor costs.” For example, since 2005 the starting pay for state prison guards has increased 23 percent. Including benefits, ODOC is one of the top paying prison agencies on the West Coast.

The June 2010 Reset Subcommittee report agreed that “the level of pay and benefits (e.g., retirement, health) allocated to public employees” is the third largest cost-driver in building and operating prisons.

Kulongoski insisted that reducing Oregon’s incarceration rate “is the only way” such skyrocketing prison costs can be addressed. He hopes the newly-formed Commission on Public Safety, which started work in September 2011, will do just that.

Kulongoski’s Executive Order set a December 15, 2011 deadline for the Commission to issue a report outlining its findings and recommendations. The 2012 legislature will then consider the proposed reforms and refer any potential constitutional amendments to modify mandatory minimum sentencing laws to the voters.

Meanwhile, ODOC Director Max Williams told state lawmakers in September 2011 that he needed at least $608 million over the next decade in construction and operating costs to re-open two closed prisons and build a new one, based on an estimated increase of 2,000 more state prisoners during that time period. Part of the increase is due to Measure 57, a law that mandates harsher sentences for property crimes which is due to go into effect in January 2012.

Sources: The Oregonian, The Register-Guard, Statesman-Journal, Report of the Reset Subcommittee on Public Safety (June 2010)

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