The April 29 editorial “Be more pragmatic about juvenile justice” was long overdue. However, in solving a problem, you need to first define it, then examine how it came to be.
In 1980, when the pioneering Minnesota Sentencing Guidelines were enacted, there were roughly 1,800 adult prison inmates in Minnesota. Today there are nearly 10,200 — more than a 500 percent increase. The state’s population did not go up by anywhere near that percentage, and the crime rate, while fluctuating, has remained pretty much stable. So how and why the steep increase?
The original legislation required the Sentencing Guidelines Commission to rank sentences proportionate to crime severity and an offender’s criminal history. It also required the commission to take into “substantial consideration” the resources available for incarceration.
Commission membership was staggered so as to avoid political influence, and changes to the guidelines themselves, whether modifications or the ranking of newly created crimes, were to automatically go into effect in August of the year following the change, absent legislative action to the contrary.
What that meant was that the Legislature did not need to approve commission actions; instead, it needed to take action to disapprove them.
Political winds change over time. Everyone needs a platform to run on; high-profile crimes stir emotions providing that platform, and no one wants to run against someone who can remotely paint them as soft on crime. So following a period during which the guidelines remained free of political influence for about four years, the exponential growth of our prison populations began.
Two key structural changes were made by a Legislature that felt sentences were not severe enough. First, all reference to taking into consideration the capacity of prisons was removed from the language. Second, appointments of commission members were changed so that their terms were concurrent with the governor, removing the staggered terms and fostering a total turnover in the commission every time a new chief executive took office.
Another change was a tendency to appoint prosecutors, judges or commissioners of corrections as commission chairs. Previously, commission chairs were typically chosen from the public rather than from those whose position in the system created a vested interest.
Prison growth accelerated in the late 1980s in response to the “crack” epidemic and several murders in Minneapolis parking ramps. In 1989, the Legislature recodified all drug crimes, setting up an artificial assumption that possession or sale of a certain amount of a controlled substance identified an offender as being higher up in the drug hierarchy. Rock, or “crack,” cocaine was deemed to be three-and-one-third times more harmful than cocaine in powdered form. This, combined with the ability of law enforcement to aggregate multiple buys over a 90-day period, resulted in many street-level dealers, mostly people of color, being treated like “kingpins.”
The prison population of African-Americans went through the roof, and ultimately the distinction between “crack” and powder was found to be unconstitutional. But the decision was not made retroactive for those already in prison. And the ability of law enforcement to aggregate to a targeted threshold remained.
High-profile sex crimes are like red meat to policymakers. Sentences for criminal sexual conduct for all levels of the crime were increased as a result of legislative action following a number of cases, most notably the assault and murder of Dru Sjodin. A secondary consequence of the response to that particular crime, while not specifically prison-related, was that those committed to a life of incarceration in the costly Minnesota Sex Offender Program in a given year increased by 300 percent almost immediately.
Then we have the fastest recent growth segment of the prison population. Those convicted and sentenced for felony-level aggravated DWI. Previously, drunken driving had been classified as a misdemeanor or gross misdemeanor, neither resulting in a prison sentence, but instead subject to up to a year in a county workhouse or jail.
Last, we have the disproportionate population of release violators. Someone released from prison typically has 13 conditions of release, with those identified as high risk having as many as 80. These are people who are returned to prison without committing, or being convicted of, a new crime. They account for approximately 3,000 prison commitments per year, usually for moderate violations, requiring approximately 1,200 prison beds. We have multiple rules against missing, or being late to, appointments with your supervising agent, having a positive alcohol or drug test, being identified through your electronic bracelet as being outside the area in which you are authorized, or failing a treatment program, all of which can lead to a return to prison. These technical violations are not only enacted on those who are released from prison but also on those who never go to prison as part of their sentence but instead receive probation.
And none of this takes into consideration all the collateral consequences of a criminal conviction, some implied and some institutionalized. Barriers have been established that hinder successful re-entry, such as limiting employment opportunities, access to affordable housing, ineligibility for student loans, etc. These all share the unintended consequence of making technical violations more likely.
Minnesota still has one of the lowest incarceration rates among the 50 states. But our percentage of growth over the past several decades is near the top. We need to ask ourselves: What have we gotten for our efforts and expenditures? Are we more safe? Do we have a lower crime rate? Are we correcting people as the name Department of Corrections implies? What is the impact on communities of color?
Orv Pung, commissioner of corrections under Govs. Al Quie, Rudy Perpich and Arne Carlson, once said, “Prisons should be reserved for people we’re afraid of, not just those that we’re mad at.” If we hope to stem the incarceration binge, we may need to rethink how we use incarceration and consider an objective reworking of the system, absent emotional responses and political opportunism.
Dan Cain is the president of RS EDEN, a social-service and correctional re-entry program, and is a former member and chair of the Minnesota Sentencing Guidelines Commission.