How has Prison Reform Impacted Alabama?

The criminal justice system has historically relied on human judgment for sentencing, but Alabama’s recent criminal justice reforms are attempting to equate human error to a quantifiable number.

Crimes now equal a score that effectively decides an offender’s punishment. A similar score sheet labels parolees as high, medium or low risk.

Alabama is a bit of a trendsetter — for better or for worse — on the criminal justice front, said Bennet Wright, executive director of the Alabama Sentencing Commission tasked with both implementing the 2013 and 2015 reforms as well as crunching the data.

“With the passage of the 2015 reforms, I think you’re seeing Alabama acknowledge for the first time that data driven decisions need to be the driving force of all criminal justice policy,” Wright said. “That’s a huge shift in policy. Obviously that’s not something everybody will jump on board with, but I think it’s important to make decisions, particularly ones that have huge price tags attached to them, to much more of a data driven process.”

The reforms are not without controversy. Attorneys remain critical of the sentencing guidelines, and judges are split on whether or not the score sheets rob them of their ability to adjudicate, but the reforms have shown promising returns in popping the balloon on Alabama’s prison population and the data collected over the next few years could continue to spur progressive criminal reform.

Numbers game

The two-pronged reform began with the implementation of presumptive sentencing guidelines in 2013 that essentially reduced sentencing decisions to a score sheet in an effort to be more selective and consistent about who gets locked away. For drug offenses, eight or more points  — perhaps a distribution of marijuana charge (6 points) and a possession with intent to distribute charge (5 points) — will land that person in prison barring mitigating factors. For property crimes, 15 points is required for a prison sentence. Both sheets also add points for prior adult convictions, incarcerations, probation revocations and juvenile delinquencies, but the idea was — and still is — to send fewer non-violent offenders to prison to relieve the burden on a prison system that, at the time the guidelines were implemented, housed nearly twice the inmate population (25,299) than it was designed for (13,318).

The guidelines also made sentencing consistent across the state. A possession of marijuana charge, for instance, no longer relies on the presiding judge’s views of the drug.

“Some judges are heavy on possession of marijuana. They detest it and (before the guidelines) would give harsher sentences than other judges would,” said former Montgomery County Circuit Judge William Shashy who retired this past month.

The 2015 prison reform, also known as Senate Bill 67 sponsored by Sen. Cam Ward, R-Alabaster, focused more on fighting the bloated prison system. A new class of felony, Class D, was created for sentencing guidelines to include non-violent offenses such as minor drug possession and third-degree theft. Those crimes now carry the lowest point totals as legislators are more concerned with locking up violent offenders.

“They’re focused on felony offenses the Alabama Legislature has deemed non-violent. Mostly drug and property offenses,” Wright said.

If fewer non-violent offenders are going to prison, more are naturally going to parole and probation. The bill accounted for that by injecting funding into the state parole system to hire 100 more parole officers.

 

Darrell Morgan, assistant executive director of the Board of Pardons and Paroles, said they have hired 71 additional parole officers as of the end of October. Seventeen more are currently being interviewed, and Morgan said more officers will be added using their general fund in an effort to reduce parole officers’ caseloads.

“When this began we were around 200 cases per officer. Our target is to have everybody down to 100 offenders per officer by the end of the fiscal year (Sept. 30),” Morgan said. “That was one of the biggest issues with previous parole boards was we didn’t have the adequate staff. Now that these numbers have increased we’re able to better manage our caseloads and we can manage more people.”

Also implemented this year was the Ohio Risk Assessment System (ORAS). The risk assessment is filled out in the pre-sentencing investigation and assigns scores based on severity of the offense, institutional behavior, and what risk-reducing programs that offender will attend. Wright said the sheet not only helps parole officers manage their caseload better, but it also will give him hard, objective data on offenders across the state.

“For the first time, we’re going to be able to say X amount of the probation population has this need or X percent of the population is at this risk level. Right now it’s just anecdotal,” Wright said. “If you talk to the district attorney and the defense lawyers, you’ll probably wonder if you’re talking about the same people. Now for the first time you’ll have an empirical objective tool that we’re going to actually measure that on. For the first time, we’ll be able to see how many people test out as high risk.”

Beyond the numbers

It’s a logical move to combat unsightly statistics by gathering new data, but local attorneys say the reforms have had an impact on how they defend or prosecute offenders who they say have been reduced to a number.

Montgomery County Deputy District Attorney Ben McGough said the sheets and implementation of Class D felonies have incentivized crime and taken the teeth out of the justice system.

“When a defendant looks at their sheet and their score is two and it takes 15 to go to prison, they’re guaranteed from the beginning. You’re not going to prison no matter what happens,” McGough said. “Then they look at the sheet and think, ‘I’ve got 13 points to burn.’ they can look at the sheet, do the math, and think, ‘I can do four more non-violent offenses before the judge even has the option to send me to prison.’ And we’re literally giving them the figures.”

On the defense side, Public Defender’s Office Director Aliya McKee said the sheets reduce her clients to a figure instead of treating each case as a unique situation.

“Our clients, from my perspective, get reduced to a number,” McKee said. “I’m somewhat comfortable with that being the starting point, but it’s not the solution. We want the court to see the person behind the charge. The name, not the case number.”

 

The guidelines do offer judges opportunities for discretion. Defense attorneys can argue mitigating factors to reduce a sentence and prosecutors can argue aggravating factors to increase it.

Some of the biggest holes in the one-size-fits-all sentencing sheet concern number of counts against a person and whether or not an offense is on the sheet.

If a person is charged with 14 counts of third degree theft and has no prior record, that’s only eight points on the sheet, a score that will not get that person to prison.

Then again, much of the point of the guidelines is keeping offenders out of the engorged prison system. Judges such as Shashy and Montgomery Circuit Judge Truman Hobbs Jr. have no problem with the guidelines, but said some judges take umbrage with the reduced sentences.

“It’s not with its detractors but on the whole it’s served its purpose,” Hobbs said. “The guidelines gave shorter sentences closer to what was served, but the reality is the prison is so overcrowded that before a five-year sentence would be reduced to three, and now it’s a three-year sentence and they’re getting out in less than a year. We’re giving shorter sentences, but they’re still getting out pretty quickly. That bothers some judges, but for the most part it's served a good purpose.”

Besides keeping offenders out of prison, the goal for most involved is to find a better way to rehabilitate the offenders. The reforms put in place foster a good environment for rehab programs, but the funding remains lacking in many areas, according to Wright and McKee.

The reforms did allow the Board of Pardons and Paroles to institute rehabilitation programs in counties lacking community corrections services, Morgan said.

“We’ve partnered with the Department of Mental Health to obtain contracts with local community service providers to do drug treatment and mental health counseling for offenders under our supervision. Right now those are the 22 counties that don’t have community corrections services,” Morgan said.

Still, Wright and others would like to see more investment in rehabilitation programs. Lowering the prison population doesn’t matter if the cause of the behavior is not being treated.

“I think one of the things the state of Alabama has always struggled with is enough investment into community alternatives. The state has always had a difficult time funding substance abuse treatment, drug treatment and more recently mental health treatment,” Wright said. “Those options have to be fully funded if we are going to divert more people from prison and jail to give them a chance to succeed in the community. The latest prison reform legislation is an effort to do that, but we need to remain vigilant in making sure these alternatives are properly funded and make sure we’re measuring results to make sure the outcomes desired are being achieved.”

Early results

As judges and attorneys feel their way through the reforms, all eyes are keen to judge what impact reforms have had on key statistics such as prison population, crime rate, parole caseload and recidivism. It’s still too soon to make definitive claims, but Wright said some early data returns are promising.

State prison population, for example, has dropped from 25,299 in 2013 (189.9 percent capacity) to 23,318 this year (175 percent).

“I think the initial results of the presumptive sentencing standards are promising,” Wright said. There has been a steady decrease in the prison population averaging 80-100 fewer inmates per month.”

State crime rate has also dropped during the period going from nearly 174,000 total crimes in 2013 (about 3,586 crimes per 100,000 people) to just over 162,000 this year, however, that rate was already falling from 191,318 in 2011 and 181,752 in 2012, according to Alabama Law Enforcement Agency.

Parole caseload has also begun to dip slightly. Morgan said it took longer than expected to hire new officers but active caseload is down to about 145 cases per officer. When adding inactive cases, that decline looks much smaller (about 215 per officer to about 195), but Morgan said the reform has had a noticeable impact.

“(Adding inactive cases) makes the numbers still look high, but the hiring of the officers have gotten our active caseload down to a manageable level, which is lower than it was. But we still have to hire more people,” Morgan said.

The risk assessment and recidivism data will take longer to gather with Wright saying, “a lot of the big data prizes won’t be coming in for four to five to six years,” but some usable risk assessment results will become available in the next 12 to 18 months.

On a local level, one particular statistic has the District Attorney’s Office concerned that the guidelines may be doing more harm than good for public safety.

Montgomery has seen 530 more thefts this year than last year, and many in the DA’s office, including Chief Deputy District Attorney Lloria James, see the lenient sentencing guidelines as the blame.

“Those statistics don’t surprise us at all. It’s almost like a revolving door,” James said. “The problem is sort of like word travels fast on a college campus or neighborhood or things like that, in the criminal community word travels fast, and I think it’s gotten out there that pretty much if it’s non-violent — thefts, burglaries things like that — there’s almost zero chance you’re going to see some prison time, so it’s worth it to them.”

Whether or not there is a connection remains up for debate, but that hasn’t stopped District Attorney Daryl Bailey from reaching out to Sen. Ward in recent weeks about possibly making some changes.

“We’ll continue looking at it, but we’ve done a lot of reform already,” Ward said. “Obviously that’s a point being made by the district attorneys, but if there's any changes needed to be made in the guidelines we need to do that. We need to make sure it's prudent for the safety of the public.”

The full impact of the prison reform remains unclear, and whether or not there is a next phase that supports post-sentencing rehabilitation remains to be seen.

The reforms have shown themselves not to be perfect, but Wright said that should engender further study and support in his ideal scenario.

The reforms were put in place after studying prison reform in other Republican states such as Texas and North Carolina, but implementing front-to-back change is “trendsetting,” Wright said.

For now, the state must wait and see what the numbers hold.

“It’s a little daunting, but that’s trendsetting to have this big of a process going on at one time,” Wright said. “That’s also why I tell people both for it and against it to take a deep breath and let’s do our best to implement it. I think with a lot of things, people get in the way of things before they implement it. We owe it to ourselves to embrace what the Legislature passed and what the intent was. Let’s give it our best good faith effort, wait a while and then sit around the table and talk about it then.”

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