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Criminal Justice Under Eliot Spitzer

by Joshua Brustein, Apr 02, 2007
 

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With four family members in prison, Andrea Johnson spends $100 every two weeks on collect phone calls from correctional facilities. So she was pleased that, soon after taking office, Governor Eliot Spitzer made changes that will cut her bill in half.

Johnson hopes this is an indication that Spitzer will look to make further reforms to the state's prison system where her husband, two brothers, and a brother-in-law are serving time.

"What happens when they get released? How do we approach that?" asked Johnson, whose husband comes up for parole in June. "Not through phone calls."

The governor has inherited a system that is in flux. There are about 63,000 men and women in the state prison system, down significantly from the peak of 71,000 in 1999. As crime has largely been brought increasingly under control, New York's prison system has shrunk. Experts across the political spectrum see a need to spend more time responding to the issues surrounding the 25,000 inmates being released each year than to locking up more and more people.

Spitzer's rhetoric echoes the tough on crime mantra that has become dominant over the last several decades, and he made it a priority to pass one of the country's harshest laws regarding sex offenders soon after taking office. But there are also signs that he is willing to challenge some of the pillars of the state's criminal justice policy, by rethinking sentencing, focusing on services and reentry, and even reducing the size of the overall prison system.

New York is not the only place that is changing course on policies regarding crime and punishment. But it is providing grist for advocates who want to move away from some of the dogma of the last several decades.

"We are the fastest shrinking prison system in the country by far and also happen to have the largest crime decline in the United States," said Michael Jacobson of Vera Institute of Justice, a criminal justice think tank. "Those are nice things to have go together. You can obviously have fewer people in prison and more public safety at the same time."

SHIFTING WINDS ON CRIME

Thirty-four years ago New York State was at the forefront of a national shift that laid the basis for a decades-long trend toward harsh sentencing, an official rejection of "coddling" prisoners with rehabilitative services and a surge in the prison population. Governor Nelson Rockefeller signed legislation creating mandatory minimum sentences for certain drug crimes in 1973, the first such laws in the country. These Rockefeller Drug Laws were the first salvo in the War on Drugs, a campaign during which the worst thing a public official could be was "soft on crime."

This philosophy on criminal justice was bipartisan. New York State's prison explosion came under Democratic governor Mario Cuomo. The prison population more than doubled under his watch, then continued to rise under Governor George Pataki. Between 1982 and 2000, New York State opened 38 prisons, more than in the previous 150 years.

In recent years, however, growth in the national prison population has slowed as crime rates became significantly lower than they were in the 1980s and 1990s. Meanwhile, hundreds of thousands of prisoners re-enter society every year. This has been especially true in New York, whose prison population has shrunk 12 percent since the peak in 1999 (although the most recent numbers show a slight uptick fueled by rising crime rates upstate).

This shift in the shape of the criminal justice system has also changed the way that public officials think about the issue. Lower crime rates have brought down the fever pitch on being tough on crime. There has been a bipartisan push, for example, to re-evaluate drug sentences that punish offenses related to crack cocaine much more harshly than those involving powder cocaine.

Reentry and education programs that were once seen as the bastion of softheaded liberals are now being championed by officials across the political spectrum. Senator Sam Brownback is a particularly striking example. Brownback is preparing a 2008 presidential run as the voice of the conservative wing of the Republican Party; in 1994 he called Newt Gingrich's Contract With America too moderate. But last year he spent a night in a prison and addressed inmates as he pressed for the passage of the Second Chance Act, a bill that aims to ease prisoners' re-entry into society.

A NEW APPROACH TO CRIMINAL JUSTICE IN NEW YORK?

People in the criminal justice field in New York felt the ground shifting from the moment Spitzer took office.

For years, the state has made millions of dollars from phone service between prisoners and their loved ones through a deal in which it charged a commission for each call. In 2005 alone the state made $16 million from these charges. These calls, meanwhile, have tripled in price since 1996. Spitzer's decision to have the state stop collecting its fee the will reduce the price of a 20-minute call from $6.20 to about $3.

In addition to the financial effect this will have on the families of prisoners, the symbolic import of Spitzer's move left advocates of a new approach to criminal justice feeling optimistic that more profound changes are on the way. While many are withholding judgment, they see indications that the state is changing course.

Sentencing

There have been calls to reform or repeal the Rockefeller Drug Laws since the administration of Mario Cuomo. Most other states have tempered their own drug sentencing laws. New York did not make any changes until 2005, and even then the reforms were seen as relatively minor.

Spitzer has called for a panel to broadly re-examine sentencing. It has yet to be seen whether the commission's recommendations will be, or whether they will have any teeth. But some see an opening to reconsider the inequities they see in the state's drug laws.

"We clearly think the Rockefeller Laws will be in there," said Jeffrion Aubrey, the head of the State Assembly's corrections committee.

Closing Prisons

In a clear indication that Spitzer sees permanent changes for the prison system, he has indicated that he wants to close some prisons.

"We acknowledge we've lost 8,100 inmates," said Brian Fischer, Spitzer's commissioner of corrections. "Perhaps we don't need so many prisons."

Advocates of closing prisons see such action both as recognition of lower prison populations and as a way to reallocate resources to other places within the criminal justice system.

"The more you can shrink the size of the system intelligently, the more money you have to reinvest in a variety of things, among those programs within prisons," said Jacobson of Vera. Some advocates suggest the money saved by reducing the size of the prison system could pay for experiments on programs aimed at helping people stay out of the penal system, saving progressively more money. Fischer declined to speculate on such a plan, saying, "you can't divert money you haven't saved yet."

Not everyone thinks closing prisons is a good idea, however. Strong opposition kept Pataki from doing so, even though he expressed interest.

Some say closing prisons is premature, given the recent increase in the number of inmates. But much of the argument against closing prisons revolves not around criminal justice, but around economics. The prison system is a $2.7 billion a year industry in New York State, and the economies of many struggling upstate communities rely on prisons. Furthermore, the job security of some upstate lawmakers would be threatened if prisons closed, since prisoners, wherever they came from originally, count as residents of the districts where they are incarcerated - even though they can't vote. Closing prisons would therefore shift political power away from the thinly populated regions where they operate.

In 2005, the state passed legislation that would make it harder to close prisons, requiring officials to give a year's notice, create an alternative use plan for the facility and find new jobs for displaced employees. The state corrections officers union, which makes large contributions to legislators' campaigns, says it opposes any closings.

Spitzer included a plan for a prison closing commission in his executive budget. The State Senate rejected the idea, however, and Aubrey says the Assembly will not push it. Aubrey says that Spitzer could create the commission by executive order, but it is not clear how this will play out.

After Prison

Regardless of what happens to the overall makeup of the system, tens of thousands of people leave New York's state prisons each year, many with little more than $40 and a bus ticket. Criminal justice experts agree that easing this transition is one of the largest challenges facing policymakers. Many believe the preparation should start the minute a prisoner enters the system.

Stanley Richards of the Fortune Society, an organization that helps prisoners readjust to life on the outside, said giving prisoners access to higher education while they are incarcerated is the best strategy for lowering recidivism. Richards spent more than one stint in prison himself; while serving a sentence for robbery he got his GED and a college degree in social work and has not been back to prison since. "It laid the foundation for me," he said.

Numerous studies show that education increases prisoners' changes of succeeding in the outside world. A report by the U.S. Department of Education found that those who attended school behind bars were 29 percent less likely to end up back in prison, and that "every dollar spent on education returned more than two dollars to the citizens in reduced prison costs."

Still, such programs face intense opposition, largely because of their symbolic significance: Many people do not think that money should be spent educating people who have committed crimes. In the mid-1990s both the federal and state governments cut off funding for higher education for prisoners. There has been no movement to reverse these actions in New York so far, but Aubrey says he hopes to have education programs back in the budget by next year.

CIVIL CONFINEMENT

Criminal justice issues have been overshadowed by Albany's big-ticket items: education, Medicaid, Spitzer's governing style. The exception has been a deal between the governor and the legislature to detain some sex offenders indefinitely, even after they have served out their sentences - a practice known as civil confinement.

Sex offenders have long been seen as particularly dangerous. Their crimes are considered to be among the most abhorrent of anti-social behaviors, and recidivism rates among them are high. Across the country, officials have sought ways to crack down, by requiring public notice when a sex offender moves into a neighborhood, or forcing some offenders to wear GPS devices for years after their release. Ohio is currently considering legislation to require the issuance of bright green license plates for convicted sex offenders, mirroring similar legislation in other states.

The first civil confinement legislation was passed in 1990 in Washington State, and many states have passed such laws since. In New York, the Republican-led Senate passed civil confinement legislation every year for more than a decade, only to have it shot down by the Democratic-led Assembly. Governor Pataki had gotten around this deadlock by using the state's mental hygiene laws to keep some sex offenders in mental hospitals as involuntary patients. But a state court rejected this practice last November.

In March, Spitzer signed a far-reaching law that he hopes will become a "national model." New York's law - the 20th in the country - ranks among the harshest. Under the law, mental health experts will identify offenders in prison who are candidates for civil confinement. These offenders will then be given a jury trial. Those who are deemed a continued risk will be transferred to treatment centers indefinitely, instead of being released. Prisoners who are eligible include those who were under 18 when they committed their crime and those who gave minors indecent material.

Civil confinement legislation is widely popular. The U.S. Supreme Court has upheld its constitutionality, on the basis that such programs constituted treatment, not punishment. But there is evidence that the programs are not providing treatment to help people re-enter society, but serving instead as ways to detain sex offenders indefinitely.

Advocates who finally feel that they are getting some traction in other areas of criminal justice say that they see the current atmosphere regarding sex offenders mirroring the earlier panic surrounding drug dealers.

"What's going to happen is sort of like drug laws. The net is going to get cast way too wide and too far. People will be afraid to step back from it for fear of political backlash," said Marsha Weissman of the Center for Community Alternatives, a group advocating alternates to incarceration. "It's easier to get people worked up into a frenzy than it is to take steps back."

 




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