Budgets/Taxes/Economics

Kentucky has become the latest state to enact sentencing reforms in a bid to rein in skyrocketing corrections costs. Gov. Steve Beshear (D) last Thursday signed into law HB 463, a comprehensive corrections bill that will save the state millions of dollars a year, in part by sentencing drug possession offenders to probation instead of prison.

The bill was based on a multi-year collaboration between the Pew Center on the States Public Safety Performance Project and state officials. State officials and legislators working with the project convened a Task Force on the Penal Code and Controlled Substances Act and issued a January report that was the basis for the legislation.

"This overhaul of Kentucky's penal code is the result of a multi-year effort involving members of the executive, legislative and judicial branches," said Gov. Beshear. "Over the last three years, we've made headway with aggressive efforts to bring common sense to Kentucky's penal code, and our prison population has dropped each of the past three years. House Bill 463 helps us be tough on crime, while being smart on crime."

The new law calls for sentences of "presumptive probation" for small-time drug possession offenders, meaning they will get probation unless judges can offer a compelling reason why they should go to prison. It also calls for drug treatment to be made available for drug offenders. It reduces penalties for small-time drug dealing while increasing penalties for large-scale trafficking. And it shrinks "drug-free" zones from 1,000 yards to 1,000 feet.

The law also reduces sentences for small-time drug dealing. Sales of less than four grams of cocaine, two grams of heroin or methamphetamine, or 10 dosage units of other controlled substances will be reduced from a Class C felony to a Class D felony.

"Today, if you sell half a gram of rock cocaine, that's a Class C felony," said Van Ingram, director of the Kentucky Office of Drug Control Policy. "When the new law goes into effect in 90 days, you will have to sell more than four grams to get Class C. That means instead of a five-to-ten-year sentence, you'll be looking at one-to-five," he told the Chronicle.

The new law lowers possession of less than an ounce of marijuana from a Class A misdemeanor worth up to a year in jail to a Class B misdemeanor with a maximum sentence of 45 days in jail, if any jail sentence is imposed.

It also requires reforms of the probation and parole system. It will create "graduated sanctions" for parole violators, allowing authorities to impose short jail stays instead of sending them back to prison for technical violations. And it removes drug offenses from consideration when judges impose sentencing enhancements based on previous felony convictions.

Although crime rates have remained steady or dropped, Kentucky's prison population has increased fourfold in the past two decades, from 5,000 in 1990 to more than 20,000 now. Drug offenders account for 25% of the prison population, but 38% of inmates admitted since 2000. The state's corrections budget this year is $460 million, and Kentucky is set to save nearly that much over the next decade by implementing the new sentencing structure.

"Of all the problems I inherited, this is one of the most complex," Gov. Beshear said. "In early 2008, I directed Justice & Public Safety Secretary J. Michael Brown to convene the Criminal Justice Council and report back on recommendations for curbing the rising prison population. That report, and the work of subsequent work groups, provided the groundwork for much of these reforms."

"This bill takes major steps to both decrease recidivism while addressing the unique problems Kentucky faces with substance abuse in ways that absolutely enhance public safety," said Brown.

"House Bill 463 is landmark legislation not only for the positive changes it proposes for our penal code, but also for the manner in which it became law," said Speaker Greg Stumbo. "Anytime you can bring together as many diverse groups as this bill did, and have them agree, you're on to something special. Rep. John Tilley and Sen. Tom Jensen did a tremendous job in getting this bill to the finish line."

"It is the most significant and meaningful piece of legislation that I have had the privilege to work on since being elected to the state legislature," said Sen. Tom Jenson, chairman of the Senate Judiciary Committee. "I am pleased that the Task Force on the Penal Code and Controlled Substances is going to continue studying these issues. We have gotten off to a great start and we need to continue working to make things better where we can."

"I'm pleased we're making progress in tackling the problems facing our penal code," Chief Justice of Kentucky John D. Minton Jr. said. "With all three branches involved in this deliberative process, I'm confident that the outcome will be positive for Kentucky."

"Senator Jensen, Representative Tilley, Senate President Williams and House Speaker Stumbo worked across party lines to look at the data and forge a comprehensive package of reforms that will get Kentucky taxpayers a better public safety return on their corrections dollars," said Richard Jerome, project manager of the Pew Center on the States Public Safety Performance Project. "The legislation employs research-based strategies to reduce recidivism, hold offenders accountable and maximize the state's limited financial resources."

Sentencing reforms are becoming increasingly popular as cash-strapped states face ever increasing budget pressures. South Carolina, Colorado, New York, and Texas are among states that have reformed sentencing and other corrections practices to lower imprisonment rates and save money. Similar efforts are pending in Delaware, Florida, Indiana, Massachusetts, Ohio, and Pennsylvania.

Sentencing reforms don't end drug prohibition, but they do somewhat reduce its inhumanity and its costs to society, as well as to the people busted for drug offenses. That's a start.

California voters opted for treatment over prison for drug possession offenders when they passed Proposition 36 with 61% of the vote in 2000. But now, five years after voter-mandated funding for treatment expired, the deficit-wracked state government is refusing to ante up, equally cash-starved counties are refusing to fund treatment locally, and drug offenders are ending up with neither treatment nor jail.

When Prop 36 was fully funded by voter mandate, people who were convicted of first- or second-time drug possession offenses and decided to opt in were placed on probation with the requirement that they enter treatment. Treatment was funded by the state. But after that initial five-year mandate, and as California's budget crisis worsened, state funding has shrunk each year, and waiting lists for treatment for Prop 36 offenders began to grow.

That's even as the program has proven a success. According to research conducted by UCLA, Prop 36 has reduced the number of people imprisoned for drug possession by 40%, or 8,000 people, saving taxpayers $400 million in corrections costs this year alone. Overall, Prop 36 has saved the state more than $2 billion in corrections costs.

Perversely, Prop 36 treatment didn't get a penny of it. Once the mandated funding of around $120 million a year expired, treatment funding fell from a high of $145 million in 2007-2008 to $118 million in 2008-2009, $18 million in 2009-2010, and zero last year. Gov. Jerry Brown (D) has proposed zero funding for Prop 36 treatment again this year.

"Prop 36 has helped reduce the number of people incarcerated for drug possession by nearly half, but there are still 9,000 of them in prison," said Margaret Dooley-Sammuli, deputy state director for Southern California for the Drug Policy Alliance, the group that sponsored Prop 36. "Most were never convicted of any serious or violent offense, but are there because they have a drug problem and multiple offenses. This is the same population that we've successfully been diverting from prison in huge numbers with no negative impact on public safety or on the taxpayers."

Prop 36's mandates are still in effect even if no one is allocating money to fund them. The court must still offer probation with the requirement that the offender goes to treatment, but now, instead of going to treatment, offenders go on a waiting list, which has grown weeks- and months-long as funding shrank, and which now may become endless.

"If you don't really need drug treatment, that's not a problem," said Dooley-Sammuli, "but if you have a drug problem, you are being put at a serious disadvantage. You're not getting the treatment you're entitled to under Prop 36 and you're at greater risk of being found in violation of probation and incarcerated."

With the prospect of help from the state legislature grim, counties are scrambling to figure out what to do. None of the options look very good.

"Long before we had financial support, long before there were funds to subsidize persons involved in the criminal justice system in our treatment services, we were seeing people ordered into treatment by the courts. We have just reverted back to those days," Haven Fearn, director of the Contra Costa County Health Services Department's Alcohol and Other Drug Services Division, told the Oakland Tribune. "We still offer treatment services to those individuals, but if the treatment slots are unavailable at the time the court orders it, many of them will have to go onto a waiting list."

Santa Cruz County announced that will "phase out" Prop 36 by no longer monitoring its participants, and other counties have suggested they will send offenders to Narcotics Anonymous. But counties that do not provide Prop 36 treatment could face lawsuits from Prop 36 offenders facing incarceration after failing three drug tests, if those those counties did not provide the treatment required by Prop 36.

"The counties can't opt out," said Dooley-Sammuli. "This is a sentencing statute. No county can end Prop 36. What they are choosing to end is the providing of treatment."

If legislators were smart, they would pay for treatment, said Dooley-Sammuli. "We hope they will realize that the state is crazy to not provide counties the resources to deal more effectively and more cost-effectively with people convicted of drug possession. Probation and treatment are both cheaper than jail. Not only should treatment be funded," she said, "but we know where to find it: In the $450 million currently locked up in the prison budget to incarcerate drug possessors."

Dooley-Sammuli also suggested California make possession a misdemeanor, not a felony. "The legislature recognizes that drug possession isn’t an offense that warrants incarceration in state prison, and we're asking that they follow through with what that really means," she said.

"Not only do we save money by making that a misdemeanor, we're also talking about making an important difference in the lives of people convicted of drug possession," she continued. "Having a felony on your record makes a huge difference in employment opportunities, lifetime earnings, being able to vote or adopt children, having custody of your own children, and other damaging collateral consequences."

If California isn't going to imprison drug possessors and it isn't going to provide them treatment, then perhaps it should just go ahead and decriminalize drug possession. Until it does, though, drug possession remains a felony in the Golden State. It's just that the state by law can't send offenders to prison and by choice won't pay to send them to treatment.

The Obama administration released its a href="http://www.whitehousedrugpolicy.gov/policy/12budget/fy12Highlight.pdf">proposed 2012 National Drug Control Budget Monday and, despite President Obama's statement just over two weeks ago that the federal government needed to "shift resources" to have a smarter, more effective federal drug policy emphasizing public health approaches, there is little sign of any resource shifting.

Although budget documents said the administration seeks "a balanced approach" of prevention, treatment, and domestic and international law enforcement, law enforcement continues to get the lion's share of federal drug dollars. Of the more than $26 billion allocated for federal drug control efforts, nearly 60% would go to "supply reduction" (read: domestic and international drug law enforcement and military interdiction) and only 40% would go to treatment and prevention.

And in a time when the clamor for deficit reductions and budget cuts grows louder by the day, the Obama administration drug budget actually increases by 1.3% over 2010. That means it could be in for a rough ride when congressional appropriations committees get their hands on it, although no Republican leaders have yet commented on it.

[Editor's Note: All year-to-year comparisons are to Fiscal Year 2010 because Congress still hasn't passed a FY 2011 budget.]

On the other hand, at least the administration is being honest. Since 2004, the Office of National Drug Control Policy (ONDCP -- the drug czar's office), which produces the drug budget, under drug czar John Walters had used accounting legerdemain to substantially understate the real costs of federal drug control by not including the drug component in the work of a number of different federal agencies. Using the understated figures, this year's drug budget would have appeared to have been only $15.3 billion instead of the more accurate $26.2 billion, with a false appearance of equality between supply-side and demand-side funding.

[Editor's Note: Bush-era drug czar John Walters stated directly, in response to a question I asked at an event, that they omitted budget items that included drug control but were not 100% about drug control -- claiming that made the numbers "more accurate," but not explaining how that made sense in any way. -DB]

"At least they finally got around to fixing the accounting problem," said Bill Piper, national affairs director for the Drug Policy Alliance."It took them five years after Congress told them to fix it, but at least they are showing the true cost of things, like incarceration."

But neither Piper nor representatives of other drug reform groups had much else nice to say about the budget. "It's very much like last year's budget, with most money going to ineffective supply side programs and not enough going to treatment," Piper said. "You have the president and the drug czar talking about treating drug abuse as a public health issue just weeks ago, but their budget continues to treat it as a law enforcement and military issue."

"I don't understand how the president can tell us with a straight face that he wants to treat drugs as a health issue but then turn around just a few weeks later and put out a budget that continues to emphasize punishment and interdiction," said Neill Franklin, executive director of Law Enforcement Against Prohibition and a former narcotics officer in Baltimore. "The president needs to put his money where his mouth is. Right now it looks like he's simply all talk and no game."

"I see this similarly to Obama's approach on needle exchange and crack sentencing -- the president supported those reforms verbally, but did nothing else to help them at first, even when he had the opportunity," said David Borden, executive director of StoptheDrugWar.org, publisher of this newsletter. "But when Congress was ready to take them on, the administration provided enough support to get them through. Obama has also supported the idea of shifting the drug budget's priorities, but again has done nothing whatsoever to make it happen. Maybe what he wants is for Congress to do the heavy lifting on this as well. If so, our movement's task is to propose a politically viable new version of the budget that does change the priorities, to build support for it in Congress, and then look for the administration to get on board."

"We're definitely going to be focused on cutting funding to the drug war during the congressional appropriations process," said Piper. "We're already meeting with both Republicans and Democrats to increase support for cutting funding to the Byrne grants, the media campaign, and other ineffective drug war programs. I don't think there are any sacred cows now, and our goal is to get the drug war on the chopping block along with everything else."

While there are individual programs that saw cuts in both the treatment and prevention side and the law enforcement side, only in the realm of international anti-drug assistance was there an overall decrease in spending. Although the budget funds foreign assistance at $2.1 billion, that is $457 million less than the 2010 budget, a decrease of 17%. The decrease results from the winding down of Plan Colombia funding, a shift from expensive technologies for Mexico to more programmatic aid, and the re-jiggering of some of the Afghanistan anti-drug spending to be counted as "rule of law" spending.

Proposed spending on interdiction is set at $3.9 billion, an increase of $243 million over 2010 levels. The departments of Defense and Homeland Security account for the bulk of that spending, which includes an increase of $210 million for border security and port of entry facilitation on the US-Mexico border.

But international anti-drug aid and interdiction spending are dwarfed by domestic drug law enforcement, which would gobble up $9.5 billion under the Obama drug budget, an increase of $315 million over 2010 levels, or 3.4%. Unsurprisingly, the single largest domestic law enforcement expenditure is $3.46 billion to incarcerate federal drug war prisoners.

[Editor's Note: In the budget, the authors refer to high federal corrections costs because of the high number of drug war prisoners -- they make up well over half the more than 200,000 federal prisoners -- as "a consequence of drug abuse," when those costs are more than anything a consequence of public policy decisions made over decades.]

The Office of Justice Grants program, which includes the Byrne Justice Assistance Grants used to fund anti-drug multi-jurisdiction law enforcement task forces, would be slashed substantially, from $3.52 billion in 2010 to $2.96 billion in 2012, but on the other hand, the Justice Department 2012 budget contains $600 million to hire and retain 4,500 new police officers.

"It's encouraging that they cut funding for the Byrne grants," said Piper, "but they're increasing funding for the COPS program. The money is still going to law enforcement, but cutting those grants is a step in the right direction."

There are a few law enforcement side losers in addition to the Byrne grants. The DEA budget is down slightly, from $2.05 billion in 2010 to $2.01 billion in 2012, but that reflects supplemental spending for the southwest border that was included in 2010. The High Intensity Drug Trafficking Area (HIDTA) program, which has evolved into a prime example of pork, saw its funding slashed to $200 million, down from $239 million.

And while overall treatment and prevention funding was up slightly, by 1% and 8% respectively, those increases are relatively slight, and there are some losers there, too. The Substance Abuse and Mental Health Services Administration (SAMHSA) Prevention grant program would decline from $565 million in 2010 to $550 million in 2012, Drug Free Communities funding would decline from $95 million to $89 million, and substance abuse treatment Medicaid grants to the states would decline from $3.78 billion to $3.57 billion.

On the plus side, spending for the Successful, Safe, and Healthy Students grant program would increase from $177 million to $267 million, Medicare treatment spending would increase by about 10% to $1.463 billion, Substance Abuse Treatment Block Grant funding would increase fractionally, and reentry funding under the Second Chance Act would increase from $30 million to $50 million.

The much criticized ONDCP youth media campaign would remain at $45 million, and the mostly praised drug court program would also remain unchanged, at $57 million.

All in all, despite slight changes in emphasis, the 2012 federal drug control budget is much of a muchness with previous drug budgets, despite the Obama administration's lip service about changing priorities and embracing the public health paradigm.

"Everyone wants to cut federal spending somehow," said Piper. "It seems that cutting the drug war would be an easy way to do that without cutting funds to the poor, to education, and other desirable social programs. Obama has said how sad he was to have to cut programs he likes, but he probably could have saved those programs by cutting funding for the drug war."