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Wednesday, Jan. 22, 2003

Last month, Kentucky Governor Paul Patton announced the early release of over 500 non-violent felons from state prison. The move - politically unthinkable even a year ago - is the surest sign that state budgets are really in dire straits: if governors are prepared to save money by releasing criminals, times must be tough indeed.

The crisis, of course, is new. Throughout the 1990s, most states were flush. They were able to spend lavishly, cut taxes, and even save for a rainy day. But now it's not just raining - it's pouring, and it's not letting up.

The economic downturn has proven disastrous for state budgets. On average, shortfalls are about 15% of general state revenues. California alone estimates that its deficits for 2003 and 2004 will top $35 billion.

The states have fewer tools for responding to budget problems than does the federal government. They don't print money. And most states cannot, by law, run a deficit. They are confined to either raising taxes or cutting spending.

Many governors and state legislators - even some Democrats - were elected on pledges not to raise taxes. For Republicans especially, it is an article of faith that those who break such pledges, as the first President Bush famously did, will be turned out of office for their perfidy.

The sole alternative for many legislators, then, is budget cutting. And it hurts, especially when it involves prisons.

Prison Spending, Then and Now

Prison spending, together with education and health care, makes up more than half of most states' spending. In the 1990s, especially, prison spending skyrocketed. This was largely in response to the dramatic rise in crime that most states experienced in the 1980s. Legislatures passed tougher sentences, and appropriated the money to house those who would be locked up as a result.

Cutting prison spending is hard. And it ought to be. Maintaining public order is the chief responsibility of government. It's not that education is a luxury; far from it. It's just that not all necessities are equal.

Of course, state legislators' unwillingness to cut costs by releasing inmates is not based solely on their reading of John Locke. There is no question that prison spending is supported by powerful constituencies. Prisons are important employers, especially in economically depressed areas, which have been especially hard hit in the economic downturn.

Early Release: If Properly Handled, It Will Not Pose a Large Security Threat

Still, as Governor Patton has shown, early release is now a reality. At least a dozen other states are reportedly actively considering it. Increasingly, governors are being forced to take a position on whether they will consider it, and to explain how they plan to address budget gaps if they will not.

While prison releases are properly a last resort, many states are quickly running out of next-to-last resorts. But if managed properly, early releases can assist in changing the makeup of the prison population without an undue threat to public safety.

In the main, states have focused their early release programs on non-violent criminals who are nearing the end of relatively short sentences. In Kentucky, for example, the targeted prisoners have mostly been non-violent, non-sex offending felons who are within half a year of sentences that are mainly less than three years long. But this may not be the best approach. In fact, releasing inmates who have committed "violent" crimes may, paradoxically, be the safer approach to early release.

Early Release: Mainly for the Old and the Infirm

Imprisonment works: people in prison do not commit crimes outside them. Most other claims for prisons - punishment, deterrence, rehabilitation - are mainly speculative. Everyone thinks confinement is punishing, of course, but governments are pretty blunt instruments for peering inside people's souls. Prisons are best understood as tools of public safety.

Prison releases should, primarily, be consistent with this understanding. Secondarily, they should be cost-effective. After all, money is the reason states are thinking about early release at this time.

These considerations suggest who should be released: prisoners who are least likely to commit new crimes, and prisoners who cost a lot of money. Happily, these will often be the same people. Early release should target the old and the infirm.

The longer sentences of the 1990s have led to a marked graying of the prison population. According to the Bureau of Justice Statistics, less than a third of all prisoners in 1991 were between 35 and 54; today, nearly half are. And the trend is accelerating.

With age comes infirmity. This is especially true in prison, where people are exposed to levels of violence and disease far greater than they would be on the outside.

These older prisoners cost dramatically more to house than their younger counterparts. In 2001, for example, the State of Louisiana estimated that a prisoner in his sixties costs twice as much to care for as one in his thirties. Today, ten cents of every dollar spent in a prison goes to health care; these services are disproportionately used by the elderly and the infirm.

Recidivism: Even Violent Offenders Tend to Grow Less Dangerous as They Age

It probably goes without saying that older prisoners, and especially sicker ones, are less dangerous on the outside than younger, more vigorous ones. And indeed, studies confirm that elderly prisoners pose a dramatically lower risk of recidivism than other prisoners.

Not surprisingly, this is particularly true of violent crime. People who commit crimes primarily for money re-offend at a higher rate than people who commit seemingly random acts of violence. A burglar can work past fifty; in contrast, there are few gangbangers eligible for AARP membership.

All of this points to a slightly different approach to early release. Remember: prisons are best understood as tools for preventing people from committing crimes. In deciding who should be released, the question should be who poses the greatest danger on the outside. The sixty year-old inmate who committed a violent assault when he was forty is probably less dangerous, today, than the twenty year-old drug dealer in the next cell. For the sake of public safety, here as elsewhere, age should have its prerogatives.

Some states already have compassionate release laws and other mechanisms for releasing the aged and the infirm, but many do not. Such programs belong at the top of the agenda when legislatures looking to cut costs turn to their corrections departments.

Understandably, such an approach will raise hackles: releasing people who have committed violent crimes just sounds worse. And of course, older prisoners whose violent crimes are recent ought to be an exception. But while the needs of victims for punishment and closure are central to the criminal justice system, considerations of public safety must take precedence when releasing prisoners.

Funding Programs for Released Prisoners

Finally, while this is not a good time to suggest full funding of anything, the cutting of programs that specifically target prisoners who are released has undoubtedly done damage.

Programs supporting released prisoners are as essential to public safety as prison cells. A prisoners' ability to get along in the outside world - find a job, find a place to live, and live a law-abiding life - are critical to avoiding a life of crime. And the longer someone has been in prison, the more desperately they need these services.

But programs like these serve no powerful constituencies. They were, in fact, among the first cut when states went looking for ways to save money. This is a shame. Indeed, the Bush Administration recently recognized the problem, and offered the states $100 million to spend on such services. This is not enough, but then, there is no way the federal government can completely replace the lost state dollars.

In the long run, programs supporting released prisoners will both save money and protect public safety. But for as long as the present budget crisis persists, state legislators are unlikely to believe it's safe to think about the long run.

Barton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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