Criminal justice reform, everyone is doing it. But why? And what exactly are we doing?
When Senators Rand Paul and Cory Booker team up to introduce a bill in the Senate, we’re undeniably dealing with a bipartisan issue. President Obama has publicly supported criminal justice reform, and three potential 2016 GOP presidential candidates have done the same. Even Pope Francis has issued calls for reform, but criminal justice reform isn’t a purely national or international issue. In fact, criminal law is largely designed and implemented at the state level, and Georgia has been extensively reforming our criminal justice system since 2011. Naturally, this begs the question: why?
Rarely is criminal justice reform discussed at the national level without someone citing that the United States holds 5% of the global population but 25% of its incarcerated.
The United States, with a rate of 716 incarcerated per 100,000 actually is the country with the highest incarceration rate in the world. Cuba imprisons the second highest number of people with a much lower rate of 510 per 100,000. Followed by Rwanda, which experienced genocide in 1994, Russia, and El Salvador, a Central American country that recently underwent civil war and is plagued with one of the highest homicide rates in the world. Our northern neighbor, Canada, has a significantly lower rate of 118 persons per 100,000, and Mexico’s rate is 210 per 100,000. Furthermore, our crime rates are comparable to those of other stable, internally secure, industrialized nations.
Unfortunately, Georgia can hardly distance itself from this ugly reality. In fact, if each of the fifty states were a country, Georgia would have the fourth highest rate of incarceration in the world, only surpassed by Louisiana, Mississippi, and Oklahoma. 1,074 Georgians are incarcerated per ever 100,000, a higher rate than any of its bordering states.
Although Georgia has one of the highest rates of incarceration in the United States (and the world), criminal justice encompasses more than just incarceration. In 2009 the Pew Charitable Trusts Public Safety Performance Project reported that one out of every 31 Americans was under the supervision of the criminal justice system, whether prison, jail, parole, or probation. Georgia had one-in-13 of its residents under criminal justice supervision, the highest rate in the nation.
So what got us to this point? It began in the 1980s with the “tough on crime” movement. States across the country, including Georgia, began to implement criminal policies like mandatory minimums, truth-in-sentencing laws, and “three strikes” legislation. This resulted in more people going to prison and staying there for longer than ever before. By 2013, the population of state prisoners had increased seven times what it had been in 1972. In 1990 fewer than 23,000 adults were incarcerated in Georgia, but that number more than doubled by 2010 to over 56,000.
Despite the policy shifts, crime rates have remained largely stable. In response, state governments across the nation are shifting their policies to be more effective in cost and performance. Cost is a motivating factor in Georgia’s criminal justice reform. In 1990 the state spent around $500 million for state prisons, but by 2010 the cost was over $1 billion. Furthermore, state prisons in Georgia were at 107% capacity in 2011 with thousands more people detained in county jails.
What Are States Doing?
According to the Vera Institute of Justice, most criminal justice reforms in the US during 2013 fell into one or more of five categories: (1) reducing the prison population and costs, (2) expanding or strengthening community based sanctions, (3) implementing risk and needs assessments, (4) supporting the reentry of offenders into the community, and (5) making better informed criminal justice policy.
What Has Georgia Done?
In 2011, the General Assembly created the Special Council on Criminal Justice Reform to investigate ways to modernize criminal justice in Georgia. The following year, the General Assembly unanimously passed HB 1176 based on the Special Council’s 2011 report on the adult criminal justice system.
HB 1176 differentiated between serious and less serious offenders. Incarceration is appropriate for serious offenders, but the bill recommends alternative treatment for less serious offenders. The law provided $10 million in funding for “accountability courts” which require defendants to work and successfully seek treatment. Adam Gelb, director of Pew’s Public Safety Performance Project, said this law “reflects bipartisan consensus about how to combat nonviolent crime [and will] make communities safer and curb runaway corrections spending.”
In 2012, the Special Council was extended for another year so that it could conduct a similar study to make recommendations for the juvenile justice system. The Special Council found that the state cost for incarcerating one juvenile is equivalent to the cost of incarcerating five adults. Moreover, the rate of recidivism is over 50% within three years of re-entry, and in 2011, nearly one-in-four incarcerated juveniles were sentenced for misdemeanors or status offenses—an action that would not be unlawful were the child and adult. The Council recommended that status offenders and certain low level misdemeanors should no longer result in detention.
Thus, the General Assembly passed HB 242 in 2013 reforming the juvenile system. The bill designated $5 million to create a grant program to incentivize communities to offer judges non-confinement sentencing options, such as substance abuse treatment or family counseling. As the Special Council’s 2012 report states, these options are proven to reduce recidivism for low-risk offenders. The bill gives judges much more discretion to avoid entering a sentence of incarceration.
HB 242 maintained the “smart on crime” policy of HB 1176, focusing youth detention on serious offenders and funding the creation and expansion of community-based juvenile programs in counties with disproportionate portions of at-risk populations.
HB 349 was also passed in 2013, which further reformed the adult criminal justice reforms, supplementing 2012’s HB 1176. HB 349 allows the courts to depart from mandatory minimums in a narrow subset of cases in which the judge, prosecution, and defense attorney agree that a lesser sentence is appropriate. The bill also clarified release parameters for incarcerated persons with chronic illness and near death.
Together HB 1176 and HB 349 reinforce Georgia’s tough on crime policy concerning crimes affecting public safety, but implement community-based alternative treatment for less serious crimes such as personal drug use and quality of life offenses.
HB 349 also created the Georgia Criminal Justice Reform Commission to monitor and oversee the implementation of these reforms through June 30, 2018, at least.
In 2014 the Commission recommended reforms for successful re-entry of formerly incarcerated persons. Improving the re-entry process is much more complicated than reforming sentencing, because there are several barriers a formerly incarcerated person faces upon release. The Commission also recommended there be release parameters for elderly inmates in addition to those for catastrophically ill.
The Commission noted that many formerly incarcerated persons face inadequate housing, employment, education, and health care. There are insufficient community-based programs, and these circumstances intrinsically relate to the high recidivism rates. Prior convictions negatively affect their job search, and the disincentives for employers to hire people with criminal records should be mediated. Furthermore, criminal history records are sometimes inaccurate. The Commission emphasized that Georgia should continue to focus on mental heath issues because of its correlation with encountering the criminal justice system.
In addition to reentry provisions, the Commission developed extensive performance measures to track the success of previous reforms and recommended policies for reforming civil forfeiture.
In April 2014, SB 365 was signed into law. This legislation is designed to help rehabilitated persons reenter society successfully by removing barriers to housing, employment, and education. Again, “cost-effectiveness” was the theme of the legislation, suggesting the provisions of the bill would increase the number of formerly incarcerated persons returning to work and their families. The bill requires the Board of Corrections to provide adult offenders with completion certificates after successfully undertaking treatment plans and vocational training while in prison. The certificates as a matter of law will demonstrate due care for employers so that the liability concerns will be relieved.
There also is an automatic license suspension for minor drug offenses, and this law allows judges to deviate from this mandate if the drug offense was not directly related to the operation of the motor vehicle and the offender completes any treatment program the court orders. The policy consideration is that the state’s goal of rehabilitation is hindered when nonviolent offenders are burdened with limited transportation that might be necessary for work of school.
What’s Left To Do?
As mentioned above, the number of incarcerated adults in Georgia prisons was around 56,000 in 2010. The month HB 1176 became law, July 2012, the number was 58,466, but by October 2013 the number decreased by nearly 4,000. The number of persons sentenced to state custody detained in county jails also reduced by around 3,000. These numbers appear to illustrate that the reforms are successful in moving us in the right direction. The Special Council also noted that recidivism rates were above 30% within three years of re-entry for adults and above 50% for juveniles, but that data won’t be ripe for a comparative analysis until 2015.
What is most valuable moving forward is that the Commission has established methods to track the success of all of these reforms in the coming years. On the other hand, several advocates don’t think these three reforms are enough for the state to comprehensively remedy the failures of our criminal justice system. These are some of the remaining issues:
The Department of Justice has taken issue with the school-to-prison pipeline phenomenon experienced throughout the country, and neither the Special Council nor the Commission has addressed concerns of a school-to-prison pipeline in Georgia.
Georgia has a severely underfunded public defender system, and earlier this year, the Southern Center for Human Rights filed a suit against the state for the violation of the Sixth Amendment right to counsel in the Cordele Judicial Circuit.
The cases allowing judges to depart form mandatory minimums for drug crimes provided by recent reforms are substantially limited. The judge can only depart with the prosecutor’s consent. Advocates of criminal reform argue that shifting power from the prosecutor to the judge will serve the same policy goals of departing from mandatory minimums because a judge plays a more impartial role and the risk of overly coercive plea bargaining would be reduced.
Racial disproportionality is also a concern in Georgia’s criminal justice system that the legislature has yet to address. Racial bias has been evidenced in arrest rates, conviction rates, and in sentencing. African-Americans were explicitly treated differently in criminal laws of the 1700s and troubling statistics and studies continue to demonstrate implicit discrimination today.
Lastly, there is a uniquely egregious incidence of violence in Georgia prisons compared to neighboring states. Advocates suggest this is an important part of the equation of criminal justice reform.
Of course, it is important that the Commission track the progress of the reforms passed starting in 2012, but we also must actively address the myriad of shortcomings in our criminal justice system yet to be addressed. Our broken system took decades to become an infamous institution of mass incarceration, and it certainly can’t be remedied with three bills in three years.
If you are particularly interested in a certain issue with the criminal justice system previous reforms haven’t addressed, let us know and it might be the subject of a future Issues in Focus.
Blake Feldman is a third-year law student at the University of Georgia and president of the Public Interest Law Council. He is focusing on criminal law and international human rights.
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