Sentencing: The View from the Inside
Carol Estes, director of Prison Voice WA, testified before a Washington State Public Safety Committee hearing on sentencing on January 10, 2017. This is the full text of her presentation.
I’m extremely honored to speak today. I’m not a paid professional within the criminal justice system. What I can offer you is my experience. During the last 17 years I’ve been inside the prisons weekly, teaching classes and working with literally hundreds of Washington prisoners—all men. Eleven years ago I cofounded one of the nation’s only independent prison college programs, University Beyond Bars (UBB), which now has about 240 students in two prisons in the Monroe complex.
I have also had experience on the victim side of things. I have been the victim of a home invasion; a best friend’s son, whom we used to babysit for, was murdered; my sister’s daughter was raped and became pregnant; and my ex-husband was arrested for molesting a child. I have been around the block.
I believe that we now have an opportunity that we cannot afford to pass up. Thirty-five years ago, we gave up on rehabilitation. In response to the work of sociologist Robert Martinson, who famously and wrongly wrote that “nothing works” in rehabilitating prisoners (1974), Washington passed the Sentencing Reform Act (SRA)(1981). The legislature’s intent was clear. The purpose of the act is punishment.
We have done well at punishing. But this new SRA system was supposed to do other things as well.
- It was supposed to shorten many sentences and “make frugal use of the state’s and local governments’ resources.” Has it done that?
Sentences have lengthened enormously, partly through the three strikes law passed in 1993 and the Hard Time for Hard Crime law (via Initiative 159 – 1995) that produced the so-called sentence “enhancements.” Prior to the SRA, all prisoners serving life were reviewed after 20 years, or 13 years with good behavior. Average time served was between 15 and 20 years. Today we have 2,500 people in our prisons serving sentences they probably won’t live to complete. And today the average Life Without Parole (LWOP) sentence* is 39 years and costs the state $2,457,264. Before the SRA, a life sentence with parole cost taxpayers $1.8 million less per prisoner than the LWOPs imposed today. (*I am referring both to people whose sentences exceed their lifespan and those who actually received a Life Without Parole sentence.)
- The SRA was supposed to eliminate sentencing inequities and promote proportionality: Did it?
Today, 39% of prisoners serving LWOP sentences are serving them for non-homicide convictions, and 40% of all LWOP sentences include weapons enhancements. And if prisoners choose to exercise their constitutional right to go to trial, they receive a longer sentence, and sometimes a much longer sentence. Here’s one such story:
The actual shooter in this case received thirteen and a half years. His co-conspirator, who was not the shooter, was offered a plea of 180 months if he would testify against others. He went to trial instead and was convicted of first degree murder, attempted first degree murder, and six counts of first degree assault with gun enhancements on all counts, equaling 1,660 months.
This is an extreme example, but I can tell you that crazy inequities in sentences are not at all unusual. You need to know about them. Who is responsible for these discrepancies? How will you even find out about them? What we citizens want is not revenge but basic fairness.
- The SRA was supposed to decrease the racism in the system. Currently we have almost six times as many African Americans in our prison as we should if they were incarcerated at the same rate as whites. And even though African Americans make up only about 4% of the Washington population, 28% of those serving LWOP are black.
- The big selling point for the SRA, though, was “truth in sentencing.” That powerful but misleading slogan implied that the pre-SRA sentencing system was untruthful simply because we had parole, and a prisoner’s release date depended on his or her behavior in prison. A prisoner had to earn an early release. There’s nothing untruthful about that. Nevertheless, the SRA did away with parole, opting for the “truth” of definite release dates instead.
You may be interested in knowing what the long-term prisoners themselves say about this. “The biggest risk to public safety is a single release date.” When you come to prison, “you’re just parked there,” they say. “You just shut down. And you just try to keep breathing until your release date comes.”
“I really wish I had not had a specific release date when I came in on my second strike,” one prisoner told me. There’s a big difference between just breathing and earning release.
Another prisoner pointed out that “They have no idea at sentencing how you will behave in prison. The decision about release should be made 5-10 years down the road.” That’s exactly what we did before the SRA.
As you think about public safety, perhaps you should ask the Department of Corrections (DOC) to tell you how many high violent/high risk to re-offend prisoners are automatically released each year because their release date has arrived? And how many low violent/low risk to re-offend prisoners are kept in prison indefinitely because, without a parole system, we have no way to release them?
I understand that the legislature has committed to evidence-based policy. Here are some of the research findings we didn’t have in 1984 that should be incorporated into our system if we’re serious about evidence-based policy
- About 39 percent of state prisoners don’t need to be in prison because they’re not a threat to public safety. This is huge. Imagine the cost savings from a 39% reduction in the prison population.
- Lots of things work. Especially education, cognitive therapy, addiction and anger management therapy, and assistance with housing.
- Long sentences are actually less effective (and more expensive) than short sentences.
- Juvenile brain development isn’t complete until age 25. What that means is that young men are biologically programmed to take risks without thinking of consequences. It’s the reason the army military wants young men, and why car rental companies charge extra to young men. Because young men thrive on risk.
- Age is the most important predictor of recidivism. People over 55 have a recidivism rate of 2%, compared to 34% for prisoners under 25. In other words, they cost $100-150,000 to incarcerate but are 17 times less likely to reoffend.
- 80% of the people in prison suffer from some kind of mental illness. Our mental health system desperately needs some of the money we’re wasting on prisons
- So do our schools.
What has to happen before we are willing to take a comprehensive look at the expensive system that we’ve created over the last 35 years?
The Sentencing Guidelines Commission (SGC) is obligated by law to assess the performance of the SRA system every 10 years, but they haven’t done it lately.
But an SGC assessment is not enough. The SGC is made up almost entirely of people in the legal profession—judges, prosecutors, defenders—and is now headed by a career prosecutor (Russ Hauge). Certainly they are important stakeholders in the sentencing system, but they are not the only stakeholders, or, I would argue, even the most important stakeholders.
If we want new ideas and current research and the possibility of significant change, we must turn to people from outside the current system: criminologists, educators, sociologists, social workers, psychiatrists—and most importantly, former prisoners, prisoners’ family members and the voices of current prisoners. We need more than statistics. All of us need to bring our knowledge and experience to bear on this hugely expensive and ultimately solvable problem: How can we get a much better success rate from our corrections and sentencing system, and at the same time vastly improve our education system and the mental health systems?
The solutions are out there. In fact, we already know much of what needs to happen. We also know that more tweaking of the SRA won’t do it. I’m asking you, on behalf of all the people inside our prisons and their families and those of us paying for the current system to appoint a dynamite task force and assign them a big task.
NOTE: The source for most of the facts in this paper is “Life Without Parole Sentences in Washington State,” by Blagg, et al., Law Societies and Justice Program, May 2015.