When the United States Congress passed the Fair Sentencing Act last August, ending the legal disparity between crack and powder cocaine - after 1986 just 5 grams of cheap crack got a minimum of five-years, the same jail term handed down for 500 grams of expensive powder, an injustice that hammered many black communities - it was the first time a mandatory drug jail term had been axed since the War on Drugs began in 1971.
Besides being a seismic moment in race relations - blacks are three times more likely to be busted on drug charges than whites - it offered hope to advocates of penal reform in a nation where one in 100 adults is in prison, some 2.3 million people, the highest penal population in the world.
One of the surprising upsides of the recession - both in the United States and elsewhere - is a political acknowledgement that this crushing penal burden is no longer tenable.
Last week Ken Clarke, the British Justice Secretary, announced that mass incarceration - a record prison population in England and Wales of 85,000 - was "financially unsustainable" Clarke wants to cut loose 3000 prisoners.
Moreover, said Clarke, the rise in prison numbers was "pointless and very bad value for taxpayers' money".
Inevitably, he was blasted as "soft on crime" by "do the crime, do the time" advocates who support tough sentences, such as draconian three-strikes-and-you're-out laws.
But in these cash-strapped times can America, or any other nation struggling to maintain public services, afford to make so many do so much time, often for minor offences?
Economic realities are gnawing away at old political certainties. This is especially true in the US where, in 2009, the US Bureau of Justice said that 7.2 million people, 1 in 31 adults, was in prison, on parole, or on probation.
With just 5 per cent of the world's population, the US has 23 per cent of the prison population, according to the International Centre for Prison Studies at King's College, London.
The result of mass incarceration is a sprawling penal archipelago of federal, state and county prisons that has sucked up public money for decades. That time is past.
"You start running up against fiscal reality," says Gerry Gaes, formerly a research director with the US Bureau of Prisons. "When you start running out of money to pay for public services, then people started changing their minds."
With states desperate to trim budgets, ideas long proposed by reformers are gaining traction. Drug laws are being reappraised along with attitudes to non-violent offenders.
Tough times make for strange bedfellows. In a recent interview on the US Public TV network, Glover Norquist, head of Americans for Tax Reform, agreed with the National Association for the Advancement of Coloured People that prison numbers must be cut, and that non-violent offenders might be better off in drug rehabilitation outside prison.
Similar ideas were broadcast by fellow conservative and possible GOP presidential candidate Newt Gingrich; Republican governors in Ohio, Indiana and Florida have all talked about the need to cut prison costs. Gingrich was supported by the NAACP, which said state incarceration budgets were six times that of education spending from 1987 to 2007, and that more education might reduce crime.
Driven, in part, by special interests that lobbied for prison expansion, the US "had been on a prison binge, without any sort of accountability in terms of the returns we were getting in crime reduction, and the reduction of recidivism", says Tracy Huling, a US prison consultant.
But now the tide is turning - Huling believes the US is at a "watershed moment" - with a growing belief that, far from protecting public safety, all too often prisons become "factories of crime", where novices mix with hardened cons.
Many inmates spend their lives in and out of prison, according to the Washington-based Pew Centre.
According to a report, State of Recidivism: The Revolving Door of America's Prisons, released this month by the Centre, 43 per cent of ex-cons return to jail within three years.
Each year corrections sucks up over US$50 billion ($62 billion) from state budgets - a four-fold increase in two decades. Only Medicaid is hungrier. This suits the prison wardens' lobby, the private prison industry and tough-on-crime politicians. But it is increasingly hard to sell to weary taxpayers.
"People are sick and tired of this revolving door," says Adam Gelb, project director with the Pew's Public Safety Performance Project. "They want the government to do a better job. We did a poll last year and 91 per cent of people agreed, and 75 per cent strongly agreed, that what really matters is making sure felons don't commit crimes when released."
The report found the traditional approach, where felons are released with the clothes they wear and a bus ticket - punishment without rehabilitation - doesn't really work.
Instead, states are increasingly trying rehabilitation. Just cutting recidivism by 10 per cent would save states US$635 million a year. It is a powerful argument with bipartisan appeal.
Besides seismic change to penal philosophies, closing the revolving door means challenging the War on Drugs, the gorilla in the room of penal reform. The war hasn't quenched America's raging illegal narcotics habit, but it has banged up millions. The current US prison population includes 500,000 people sent down for drug offences, says the Sentencing Project, which presses for prison reform.
"We're seeing a dramatic shift in policy and the political landscape on crime and punishment," says Gelb. "It's taken a long time but there's a growing recognition among policy makers on both sides of the aisle that there are more effective strategies. And that some policies enacted during the fervour on the War on Drugs are counter-productive."
Thus, Arkansas, Kentucky, Colorado and Delaware relaxed their drug laws, says Gelb, "allowing the courts more flexibility with probation, treatment and testing".
And South Carolina, says Kara Gotsch, the Sentencing Trust's advocacy director, has ended the sentencing disparity between crack and powder cocaine, a bill signed by the conservative southern state's Republican governor.
"There's a lot more partisan work at state level," says Gotsch, "partly because the feds have deeper pockets."
Prisons, long the weapon of choice against crime, are being replaced by less expensive and more effective tools that allow the authorities to monitor offenders outside prison.
Besides quick drug and alcohol tests, non-violent offenders can be tracked by Global Positioning System. Drunk drivers can be caught if they re-offend when they wear a device that not only reveals their whereabouts, but also sends an alert if alcohol is being excreted in sweat.
Risk assessment tools, similar to those employed by insurance companies, separate low, medium and high-risk offenders, so as not to mix low-risk offenders with more seasoned criminals in anger management, drug, alcohol and other programmes devised to keep them from re-offending.
Such tactics have been successful at curbing recidivism in various states, with Oregon reporting the biggest fall in re-offending, at 31.9 per cent, according to the Pew report.
Texas, hardly soft on crime, has funded drunk driver and drug addict programmes, outpatient care, extra probation officers and other rehab instead of more jails and has seen prison populations, crime and recidivism fall. Mississippi, equally conservative, cut its mandatory minimum term for non-violent crimes from 85 per cent to 25 per cent of imposed sentences.
But reformers worry the same budget cuts that drive the push to reduce prison inmates might also cut rehab budgets.
Last year Kansas, which had cut recidivism by emphasising rehab, closing several prisons and postponing construction of others, slashed funding for drug abuse treatments. Oklahoma cut drug treatment and sex offender programmes, while New Jersey resorted to double bunking inmates - housing two prisoners in a cell designed for one.
And then there's the knotty task of challenging vested interests. New York, following a steady decline in crime rates (mirrored elsewhere), has spent years trying to close prisons - following a drop from 71,000 to 56,000 inmates since 2001 - because staff fear losing their jobs. Decades of US prison expansion spawned communities, often in poorer areas, dependent on mass incarceration. Shutting jails is analogous to closing military facilities after the Cold War, and needs government compensation, hard in the recession.
But as states downsize, the federal system is expanding.
It is hard to unshackle federal prison growth from the War on Drugs. Since the 1980s, says Gaes, federal penalties for drug crimes increased "almost threefold", promoting dramatic prison growth. At the same time Washington has fed illegal immigrants into private jails, a burgeoning market dominated by the GEO Group and Corrections Corporation of America, which together house some 128,000 inmates.
Critics believe the profit model, hyped by conservatives, isn't cost effective. Cutting costs often means hiring fewer, less skilled guards, overcrowded jails, and less spending on food, health care, recreation and so on. There is also less accountability, a situation ripe for abuse. Studies suggest, at best, that recidivism does not improve.
A Policy Matters Ohio report released this month found that, despite claims private prisons save money, research "tends to be ambiguous", while others fear that any fiscal savings will be an illusion if recidivism is not reined in.
The report, written by journalist Bob Paynter, looks at Ohio's 10-year experiment with two private prisons and found that, despite Ohio's claim to have saved over US$45 million, "it's far from clear that Ohio's private prisons are producing the [5 per cent] savings required by law. Or that they ever have".
Indeed, in some instances this ideological experiment may have actually cost state taxpayers more.
Huling cites an alternative: privatisation unhooked from the profit motive, a model explored by entrepreneurs focused more on the public good than in chasing profits.
It sounds worth investigating. It also forces politicians, in the US and elsewhere, to join the dots between budgets, drug wars, incarceration and public safety. Meanwhile, the War on Illegals could fuel a prison crisis all on its own.
2.3 Million: US prison population
7.2 Million: People in the US in 2009 were in prison, on parole, or on probation
23 per cent of the world's prisoners are in American prisons
43 per cent of ex-cons in the US return to jail within three years
By Peter Huck
Apr 23, 2011
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