I gave my annual Criminal Law Update seminar for the Cuyahoga County Criminal Defense Lawyers Association a couple weeks back, and it was, as usual, well-received:  the laser light show was a big hit, and most participants found helpful my use of sock puppets in explaining Ohio’s allied offense jurisprudence.  Toward the end I got to State v. Hodge, which rejected the argument that Oregon v. Ice had implicitly overruled State v. Foster and had restored the requirement that judges make certain findings of fact before imposing consecutive sentences.  The court held in Hodge that if the legislature wanted to require that, it could, but that it would have to pass new legislation to do so. 

I suggested, as I have here, the implausibility of an incoming Republican governor and legislature deciding, in the midst of an economic crisis, to set as their top priority making it harder to give felons more prison time.  One of the judges who was there disagreed with me, though.

And he could be right.

It’s not because of a newfound compassion among those on the rightward end of the political spectrum for the criminal class that’s driving this, but something more simple and dear to their hearts:  money.  While the “lock em’ up and throw away the key” mentality flourished during the economic boom years, hard times have brought governors and legislators to the realization that there’s not enough money for more locks and keys.  Hardly a day goes bywithout some story about states being hard-pressed to continue funding for tough-on-crime policies:  a state senator says South Carolina’s budget deficit could result in several prisons having to shut down, Iowa’s tab for tracking sex offenders will increase by at least $30 million, and Florida’s pondering a relaxation of its “truth in sentencing” law that requires an inmate to serve 85% of his sentence.

Leading the way out of this, of all places, is Texas; as this article details, the state began a “reinvestment” movement in 2007, putting money into drug, alcohol, and mental health programs to treat low-level offenders, rather than sending them to prison.  The result has been that the prison population has decreased by about 1,000, after years of steady 3% growth, with no impact on safety:  major crime has actually decreased, and the number of parole violators has dropped by a quarter, mostly as a result of better supervision and community reentry programs.

Ohio’s jumping on the bandwagon:  faced with a prison system 33% over capacity, state officials yesterday rolled out a report, Justice Reinvestment in Ohio, which called for major changes in the state’s penal system.  You can read the whole thing here.

The report’s central point is that we spend a lot of money putting people in prison who shouldn’t be there, and then doing little to nothing to make sure they don’t return:  in 2008, more than 10,000 4th and 5th degree felony property and drug offenders were sent to state prison, where they served an average nine months, during which time they received no treatment for addictions or behavior change, at which point they were released, with 72% of them getting no post-release supervision.  The tab for that was $189 million.   Meanwhile, although there’s data to help indicate which inmates are most likely to recidivate, that’s rarely used; the report calls for much more usage of the available risk assessment tools.

There are also some proposed statutory changes, which would include:

• Raising the felony theft threshold from $500 to $1,000
• Increase good-time credits; depending on the offense, an inmate could receive up to five days a month
• Failing to meet with your parole officer would no longer be a felony escape charge, unless you failed to meet with him for at least nine consecutive months
• Eliminate the distinction between penalties for crack and powder cocaine
• Increase the maximum sentence for first degree felonies to 11 years, while reducing the penatlies for third degree felonies from the present 1 to 5 years to 9 months, 1 year, 1½ years, 2 years, or 3 years

There’s no mention of consecutive sentencing, which is a serious omission, since that’s a large part of the problem here:  the judge at the seminar told me that while admissions to prison are actually declining, the population is increasing because people are being sent for longer terms, especially consecutive ones.  That’s a double whammy to the budget, because it results not only in more inmates, but older ones — and older people have many more health problems.  Studies have shown that the tab for medical care for elderly inmates — defined as those 55 and older, ten years less than the “mainstream” population — is about three times that for younger inmates.  In fact, seven states have established separate facilities just for elderly prisoners.

And it remains to be seen whether any of this goes anywhere.  Much the same legislation was introduced less than two years ago, but died on the state senate floor after barely managing to get out of committee by a single vote.  And back in 2002, Ohio voters thrashed a statewide ballot issue which would have preferred treatment to incarceration for low-level non-violent drug offenders, so the “tough-on-crime” instinct is not confined to politicians.  Still, the new effort has broad bi-partisan support by officials in all three branches of government, so if there’s a time for this to happen, it’s now.