June 1991
Minnesota's corrections policies have been credited with helping the state avoid problems that have reached the crisis point in other states during the 1980s. For example, overcrowded prisons and jails have resulted in federal court intervention in 41 states (not including Minnesota), and corrections is now one of the fastest growing segments of state budgets.
Meanwhile, the goal of state policy in Minnesota has been to sanction offenders fairly, effectively, and efficiently. Both the Community Corrections Act of 1973 and the 1978 legislation establishing sentencing guidelines were aimed at reserving state prisons for dangerous, repeat offenders and encouraging local sanctions for less dangerous offenders.
While these programs may have helped to control prison populations and correctional costs, now there are indications that they may not be working as well as originally intended. Although Minnesota's incarceration rate remains one of the lowest in the country, the state's prisons and jails are full despite the beds that have been added during the past ten years. State expenditures for corrections have been growing, and county spending has increased even more rapidly than the state's. In May 1990, the Legislative Audit Commission asked for a review of state corrections issues. Our report addresses the following questions:
To answer these questions, we interviewed corrections administrators and state and local officials. We visited jails and attended meetings of the Sentencing Guidelines Commission and the Jail Standards Task Force, which will be recommending changes to the current standards in 1991. We surveyed probation officers and corrections administrators, and collected and analyzed information describing corrections problems in Minnesota and the U.S.
We found that Minnesota's overcrowding problems are not as severe as those in most other states. But, paralleling national trends, Minnesota has experienced a substantial increase in the number of offenders in prisons and jails and on probation. Minnesota has managed to avoid serious problems until recently largely because there was excess capacity in prisons and jails when the period of growth in incarceration began. But now state and local correctional facilities are at or over capacity and probation caseloads have grown to critical levels.
The growth in the offender population has accelerated since 1986, and is projected to continue. The main reason for the growth is that more people are being punished in more serious ways than in the past. The state faces a choice: build more jails and prisons or make changes in sentencing and correctional policies which would manage the expected increase in offenders more efficiently.
The evidence suggests that Minnesota's corrections system is under growing stress.
Ideally, according to the Department of Corrections, jail use should average between 60 percent and 80 percent of capacity because extra beds are needed to segregate different types of inmates and to accommodate peak demand. Larger facilities need less excess capacity. In 1989, over 60 percent of jails and other local detention facilities had average daily populations in excess of the Department of Corrections' suggested limits, and nine jails regularly exceeded 100 percent of capacity.
Probation services may be even more overburdened than prisons or jails.
Some probation officers, especially those in the metro area, have seen their caseloads double in the past six years.
Also, in the past six years, the number of people in prisons and jails and on probation has increased more rapidly in Minnesota than in the nation as a whole.
Minnesota's incarcerated population grew more slowly than the national average during the late 1970s to mid-1980s. But a sharp upward trend in prison, jail, and probation populations is evident since 1986.
The division of responsibility between the state and counties in Minnesota places a significant burden at the local level. Sentences of more than one year are served in a state prison, while those one year or less are served in county correctional facilities. Nearly 80 percent of felony sentences and all misdemeanor sentences are served in a jail or under the supervision of a probation officer.
In addition to existing facilities filling up, over 2,300 beds have been added in the past ten years. The Department of Corrections expects continued expansion in both the state prison system and local jails to accommodate projected increases in the number of prisoners and jail inmates. A total of 31 counties are now planning or building new jail facilities or expanding existing ones.
Causes of the Problem
We examined various factors that contribute to correctional system overcrowding: population growth and composition, the incidence and mix of crime, state sentencing policy, judicial sentencing practice, law enforcement practices, and other factors that affect correctional resources, such as pretrial release requirements and legislative mandates that increase probation workloads. Some of these factors are within the control of state or local officials, while others are not.
First, changes in the age composition of the population do not generally explain the sharp upward trend in incarceration since 1986. Crime rates increased as the number of persons in the high-crime years (age 15 to 24) rose during the 1960s and 1970s. But since the mid-1980s, when the size of the crime-prone population declined, incarceration rates have increased and the problems of prison and jail crowding have developed.
Second, overall crime rates have remained relatively stable during the period in which the population under correctional control has more than doubled. But the rate of violent crime in Minnesota (which ranked 37th in the nation in 1989) shows a steady increase, up 28 percent between 1980 and 1989. Aggravated assault shows the greatest increase (up 57 percent), followed by rape (up 36 percent). Robbery and homicide rates, however, have declined slightly (down 2 to 3 percent).
Since violent crimes are more likely to be punished with a prison or jail sentence, we suspect that at least some of the growth in the incarcerated population is the result of increased criminal activity or better reporting and enforcement of certain violent crimes, such as domestic abuse.
Third,
Overall, both arrests and felony convictions per reported crime are up on a statewide basis. The number of arrests doubled in the past 15 years, and felony convictions increased 45 percent from 1981 to 1989. A similar increase in volume is evident at the misdemeanor level. Most people convicted of felony or gross misdemeanor drug or alcohol offenses serve some time; DWI offenders usually spend time in jail while drug offenders are sent to jail or prison.
Fourth,
Proportionately more people are in jail serving a sentence now than 10 to 15 years ago. Judges are increasingly sentencing both felony and gross misdemeanor offenders to serve time in jail, often in addition to a period of probation. The imprisonment rate for convicted felons has remained fairly stable at about 20 percent since 1980. But the use of jail time in felony cases has increased from 35.4 percent in 1978 to 58.5 percent in 1988. Also, DWI offenders make up a disproportionate share of the increase in jail time: DWI and traffic offenders constitute almost half the sentenced inmates and use over one-third of the bed days.
Fifth,
From 1985 to 1988, the average length of probation pronounced by judges has increased from 20 to 22 months for gross misdemeanors and 49 to 52 months for felonies. Many of the intermediate sanctions, such as fines, day fines (which are based on an offenders' ability to pay), restitution, and treatment are typically used in addition to a jail sentence.
Nearly half of new prison commitments arrive with less than one year to serve, and one-third of these were sent to prison because of technical violations of probation or supervised release as opposed to a new conviction. In addition, excluding the Hennepin and Ramsey County facilities and the Mesabi Work Release and Northeast Regional Correctional Center, approximately 10 percent of jail bed days were used by probation violators in 1989.
Finally,
The Legislature has defined new crimes and reclassified others into higher legal categories for which the prescribed penalties are more severe. It has also increased the statutory maximum sentences for about 25 crimes and has enacted more mandatory minimum sentences.
Determinate sentencing, especially mandatory minimums, is often cited as a major cause of prison and jail overcrowding. In Minnesota, mandatory minimum sentences have been enacted for drug and alcohol offenses, such as repeat DWI and second offense possession and sale of illegal drugs. Several mandatory minimum sentences affect local jails because they mandate sentences of less than one year.
Other legislative actions that affect local correctional resources include: pre-sentence investigation requirements, victim notification, sentencing guidelines worksheets, restitution hearings, chemical abuse assessments, and DNA analyses of sex offenders. These requirements increase the time that must be spent on each case. Given the increased number of offenders supervised by each officer, less time is available for each one.
Actions taken by the Sentencing Guidelines Commission primarily affect the use of state prisons, although they may have indirectly caused some jail population growth as well. The guidelines' presumptive prison sentences have been substantially lengthened; sentences for some crime categories have been doubled. Many of these changes were made in 1989, and their full effects have yet to be felt in the prison system.
Taking all of these factors into account and considering the contribution of each to the correctional crowding problem in Minnesota, we conclude that:
Overall, these policy decisions have affected the growth of correctional populations more than changes in demographics or crime rates.
Through sentencing policy, state policymakers can influence the use of prisons, jails, and other correctional facilities and programs. Like much of the nation, Minnesota enacted significant sentencing reforms in the 1970s. The 1978 sentencing guidelines legislation is regarded as a national landmark of sentencing reform.
Based on the severity of the crime and the offender's criminal history, the guidelines specify, within narrow ranges, an appropriate punishment that judges are supposed to follow in sentencing. As articulated by the guidelines themselves, and various reports and studies by the Sentencing Guidelines Commission throughout the 1980s, the principal goals of sentencing guidelines are:
Our study evaluated the degree to which these goals have been met.
Uniformity
To achieve uniformity in sentencing, the guidelines specify that offenders who commit the same crime and who have similar criminal histories should receive the same punishment. The guidelines' framers expected that judges would depart infrequently from the specified sentences. They required judges to justify departures in writing, and prohibited departures based on race, gender, and social factors such as marital status, educational attainment, or employment history.
The guidelines specify two things: whether a convicted offender should serve a prison term and, if so, for how long. We examined the frequency with which judges depart from the guidelines. In 1988, judges disagreed with the guidelines on who should go to prison in about 10 percent of all felony cases, and disagreed with the prescribed sentence length in about 21 percent of the cases.
Judicial departures are rare for repeat, violent offenses and for relatively minor, first-time property crimes. But, we found that:
In the first instance, judges tend to sentence offenders to jail or probation instead of the lengthy prison term called for in the guidelines. In the second, judges tend to sentence offenders to prison even though the guidelines do not call for it.
The guidelines explicitly state that departures should be infrequent and based on substantial and compelling circumstances. The guidelines anticipate that only a small number of cases will require departures. Departure rates as high as those currently experienced exceed the level that the commission now finds acceptable, although its thinking about departures has evolved over the years. Departures are not viewed as negatively as in the past or as the language of the guidelines themselves suggests. We think that departure rates as high as these signal a problem with the guidelines that requires attention by commission members or other policymakers.
Proportionality
Proportionality in sentencing means that more serious crimes should receive more serious sanctions, as measured by higher imprisonment rates and longer sentences. In 1981, the first full year the guidelines were in effect, the percent of offenders given prison sentences rose with each increase in severity level of crime. However, by 1988, offenders were more likely to be imprisoned at the lowest crime severity level than at the next severity level. Similar inconsistencies were evident among higher severity levels as well. These anomolies lead us to conclude that:
Trial court judges have disagreed with the guidelines on the proper severity rankings of a number of offenses. The commission helped to correct a significant proportionality problem recently when it reclassified auto theft at a higher severity level.
Resource Control
A key purpose of the guidelines was to establish a clear relationship between sentencing policy and the use of correctional resources, especially the use of state prison. The guidelines have helped policymakers understand the impact of sentencing changes on the prison population. But for several reasons, the guidelines have not been as effective as anticipated in controlling resource use:
Consequently, the commission has shifted away from resource control to resource management as a goal. Estimates are made of the additional beds required by sentencing guidelines changes, and these are communicated to state policymakers.
We conclude that Minnesota's sentencing guidelines are only partially achieving their primary goals of uniformity, proportionality, and resource control. Judges depart frequently from the guidelines when they pronounce sentences and the use of jails and prisons has increased.
Discussion
The reasons why sentencing guidelines have not fully accomplished their goals are complex, but clearly judges and prosecutors have found ways to circumvent the guidelines. The Legislature may wish to materially increase the guidelines' authority, but before doing so, we think it should consider some of the legal and philosophical reasons, and practical circumstances, that have led to this situation.
The guidelines are built on the principle of uniform and proportional punishment. Imprisonment is specified for more serious crimes, with locally administered sanctions for lower-severity crimes. But even felony offenders and the crimes they commit are complex and the sentences that are actually handed down by judges aim to achieve multiple purposes. These include retribution (punishment), but also deterrence, incapacitation, rehabilitation, and restitution.
Over the decade in which guidelines have been in effect:
For example, as noted, the guidelines formally list educational attainment and employment history as factors not to be considered as the basis for departures from the guidelines, but the appeals court has allowed amenability to probation as a basis for some departures.
Appellate decisions also have allowed more latitude in computing the criminal history score that enters into the calculation of a guidelines sentence. This has given prosecutors greater leeway in bargaining for guilty pleas. The guidelines can be circumvented through departures, appeals, and plea bargaining when they interfere with the sentence that the trial court seeks to obtain.
We believe these developments stem partly from the desire of judges and others to pursue sentencing goals other than uniform and proportional punishment. Potential for rehabilitation, threat to public safety, and deterrence of repeat offenses, are all considerations that enter into the sentencing decision. The guidelines may be too narrowly constructed to accommodate the range of varied and complex criminal cases that confront judges and prosecutors. And, as a practical matter, the calculation of criminal history scores, which can have a major effect on sentencing, is unreliable due to gaps in recordkeeping.
We do not recommend that Minnesota abandon sentencing guidelines, although their promise of uniformity and proportionality in sentencing has not been fully achieved. However, they can promote fairness when sentences are set or revised, permit monitoring of sentencing practices against standards of fairness, and help in planning for needed facilities. The Sentencing Guidelines Commission can see that sentencing disparities by race, gender, and social class are regularly monitored.
But none of these essential goals requires sentencing ranges as narrow as currently specified by the guidelines. In fact, the ranges in sentence lengths contained in the guidelines are smaller than the 15 percent leeway allowed by the enabling legislation. We think the discretion permitted judges in determining sentence lengths should be broadened somewhat, at least up to that allowed by the enabling legislation. In addition, we recommend a gray zone presuming neither imprisonment nor nonimprisonment for borderline offense categories that are now characterized by high rates of departure from the guidelines. The gray zone should nevertheless contain a proportional continuum of sanctions like the rest of the grid. This would provide judges with a range of sentencing options that better matches the variation encountered in criminal cases and acknowledges the multiple goals to be achieved at sentencing.
We examined the content and enforcement of the state's jail standards because of concerns that the standards are out-of-date and might be hampering economical solutions to the problem of jail crowding. Jail construction and operating standards are specified in rules promulgated and enforced by the Minnesota Department of Corrections (DOC). <FN - Minn. Rules, Ch. 2900 and Ch. 2910.> State standards have been in effect since 1978, and they were last revised in 1981.
Minnesota and about 30 other states use jail standards to ensure proper inmate treatment and to limit legal liability. Where standards are absent, courts have shown a willingness to impose stringent requirements of their own.
The average annual operating cost for Minnesota jails is $14,778 per bed, compared with the national average of $10,639. Jail standards covering the physical plant, staffing ratios, and staff training can affect jail construction and operating costs.
A number of counties, including Hennepin, Ramsey, Washington, and St. Louis, need to construct new jails. In several cases, the jail planning process has gone on for years despite crowded and inadequate facilities. But, in our view,
In most cases, the main impediments to jail construction are local. Jails are built with county funds, and local decisions revolve around issues like whether to build or remodel, how many beds to add, and where to locate the facility. These issues, not state jail standards, have slowed progress in a number of counties.
The Department of Corrections has adopted a pragmatic, although somewhat permissive, approach to jail standards enforcement.
1. The department has allowed counties temporarily to place more offenders in their jails than allowed by the standards if the counties are making progress toward a permanent, legal solution to crowding.
Since counties are financially responsible for the construction and operation of jails, the Department of Corrections favors negotiation and persuasion, as a rule, over the use of sanctions and penalties. The department grants variances that allow counties time to make improvements to their facilities. In 1990, a dozen local detention facilities were operating under DOC variances. Unfortunately, as a result of the department's permissive approach, long-standing noncompliance with state jail standards can and does persist.
As this report shows, state policy contributes to the need for expanded jail capacity and the state jail standards specify construction and staffing requirements that must be met. But many new jails have been built since the standards took effect. In fact, we conclude that much of the physical upgrading of jails that has taken place can be attributed to the promulgation and enforcement of statewide jail standards. Since the 1970s, many outmoded facilities have been shut down, and 47 counties have built new facilities that conform with the standards.
It is also true, however, that the current standards are out-of-date and in need of revision.
A task force is currently at work on a jail standards revision project that began in January 1990 and is due to be completed in July 1991. The task force, which represents county boards, sheriffs, jail administrative and program staff, and other corrections officials, will try to develop a consensus on jail standards and recommend changes to the Commissioner of Corrections.
Neither the task force nor the Department of Corrections has made any final decisions, but so far the task force has decided to recommend: strengthening training requirements; varying custodial requirements by jail design and inmate observability but making few other changes in overall staffing requirements; and preserving the physical space requirements in effect since 1978.
Also, the department is in the process of defining new standards for double occupancy cells. The American Correctional Association, which sets national professional standards for correctional facilities, has recently issued standards for double cells. It appears likely that the department will follow its lead. The controversy in Minnesota, therefore, between counties and the DOC over double cells may soon be settled.
A wide range of alternatives to incarceration may enable the state to reach multiple correctional goals and do so in an economical way. Traditionally, Minnesota has relied heavily on probation as a sanction. The trend nationally is toward expanding intermediate sanctions, which provide more supervision and control than probation but less than jail and prison. Intermediate sanctions include house arrest (with or without electronic monitoring), halfway houses, residential and outpatient treatment programs, intensive supervision probation, day centers, community service, restitution, and fines or day fines (which are based on an offender's ability to pay).
Evaluations of these programs have shown some of them to be modestly effective, although more research is needed. Most of these programs cost less per offender than incarceration. They tend to add to overall correctional costs in the short-run, however, because of program development and administrative costs.
In order to determine whether a sufficient number of alternatives to incarceration exist and are being used in Minnesota, we surveyed probation officers and local corrections administrators. The survey results indicate that:
Outpatient alcohol and drug abuse programs are available in many areas of the state. But funding for treatment is inadequate in some areas, while in less populous areas of the state, programs are sometimes inaccessible. As a result, many offenders in need of treatment do not receive it. Also, residential sex offender treatment and halfway houses are unavailable in nearly half of local jurisdictions. Finally, there are few treatment programs available that deal with growing problems like family violence, anger control, intrafamilial abuse, or programs for women offenders. Less than 10 percent of the counties have these programs available.
We also found that most counties have community work service and restitution programs, although they may not be used as extensively as they could be. In addition, electronically monitored house arrest is available in over 60 percent of local jurisdictions. This program is new, however, so relatively few offenders have been placed in it. Sentencing to service, a program started by the Department of Corrections in 1986, is available in 50 percent of local jurisdictions, with another 30 percent planning to institute the program. At the same time,
There is great interest in expanding the range and number of alternative programs. Our survey revealed that local corrections officials considered more intermediate sanctions to be their second greatest need (after more probation officers). Insufficient resources was the main reason cited for program unavailability, although some programs (house arrest, sentencing to service, and day fines) also lack support from local policymakers in some areas.
For the most part, alternatives to incarceration are used at the discretion of judges, which means that their use varies depending on the crime, the offender, and the judge. According to corrections officials, however, there is a tendency for these sanctions to be used in addition to some jail time. This is particularly true with restitution, day fines, and intensive probation.
Overall, we conclude that:As noted, an expansion of alternative programs could help control overall correctional costs and encourage the state to maximize correctional goals other than simple punishment. To ensure that these programs are used as alternatives to incarceration rather than in addition to it, policy guidelines may need to be developed simultaneously.
The Community Corrections Act (CCA) of 1973 was enacted for the purpose of more effectively protecting society and to promote efficiency and economy in the delivery of correctional services. <FN - Minn. Laws (1973), Ch. 354.> The program encourages counties to develop community corrections programs so that less serious offenders can be sanctioned locally, reserving state prison space for dangerous repeat offenders. Through the CCA, the state has turned over considerable responsibility and autonomy for correctional programming to participating counties, which, in turn, receive a financial subsidy from the state.
At the present time, 30 counties organized into 15 units participate in the CCA. Participating counties represent two-thirds of the state's population and three-quarters of the reported crime. In 1990, the total CCA subsidy was $18.2 million. In these 30 counties, all probation and supervised release services, treatment, community work service, victim restitution, and other correctional programs are administered by a community corrections agency, which is the direct recipient of the CCA subsidy. In the remaining 57 counties, the state finances and administers all or part of correctional services through the Department of Corrections.
As a general rule, the cost of correctional facilities and programs rises with the amount of supervision and control provided. For example, state prisons, which are designed and staffed for long-term offenders, cost more to operate than jails, which are more costly than work release facilities. In order to be cost effective, therefore, correctional programs should not provide more control over offenders than necessary. In a similar vein, the American Correctional Association recommends that states should adopt sanctions that are the least restrictive consistent with public and individual safety and maintenance of social order.
Applying this standard, we found that Minnesota does not use its jails and prisons efficiently. For example, many new prison commitments are short-termers and probation violators, not dangerous criminals. Similarly, jails are used largely for punishment of offenders who do not pose serious threats to public safety rather than for offenders who require the high level of supervision and control that jails provide. In some counties, offenders wait as long as a year to serve their jail sentences. Also, most sentenced inmates are DWI and traffic offenders, and the biggest growth is in work-release beds, not secure beds.
Other policies that contribute to the inefficient use of correctional resources include: good-time policies for jails that are more punitive than for state prisons, leading offenders to request prison instead of jail; and levy limits that provide counties with incentives to build and operate jails rather than to develop lower cost community alternatives.
Emphasizing the use of prisons and jails for offenders who pose threats to public safety requires individualized assessments of the appropriateness of sanctions based upon the risk each offender poses. To some degree, this may require treating like offenses differently. Under mandatory and determinate sentencing (including the state's sentencing guidelines), in order to insure the proper placement of those offenders who pose the greatest threat, all offenders must be treated harshly. This dispenses justice uniformly, but it contributes to the uneconomical use of correctional resources. This is a basic trade-off involved in corrections policy.
In our view, the Community Corrections Act has not been responsible for the greater use of incarceration in Minnesota. In fact, the CCA has probably been a countervailing force. Our analysis of jail use since 1975 (controlling for crime) shows that:
The rate of increase in jail use is more than twice as high in non-CCA counties as in CCA counties. This is true in both metropolitan and rural areas of the state. Also, there are more community-based programs in CCA areas than in counties where the Department of Corrections provides correctional services and where the department and the county share responsibilities. The typical CCA jurisdiction has 8.7 programs available for adult offenders, while other jurisdictions have an average of 6.5 programs. This does not necessarily mean that CCA is responsible for higher program levels. The fact that CCA counties also tend to have higher populations and more crime than nonparticipating counties could account for the observed difference. But the data support the conclusion that the CCA has been reasonably effective in achieving its goals, despite trends in the opposite direction.
We also found that:
The data show that counties have paid a proportionately larger share of the increased correctional costs incurred during the 1980s. Counties spent ten times more for corrections in 1988 than they did in 1975, compared to a seven-fold increase by the state. In 1979, the CCA subsidy represented 37 percent of county spending for corrections, while in 1990 it accounted for only 25 percent.
The overall CCA subsidy has increased when new counties joined. But instead of maintaining the CCA appropriation at a level commensurate with the new counties, the CCA subsidy has steadily declined as a proportion of the total DOC budget during the 1980s. Meanwhile, the share of the department budget spent on institutions has increased slightly (from 70 to 74 percent).
Increasing the Community Corrections subsidy could encourage counties to develop alternatives to incarceration, especially in the metropolitan area where the need for alternative programs is greatest, provided it is clear that that is the purpose of the funding increase. In other words, we think that increased funding should be tied to more explicit state goals (see below).
In addition, we found the following problems with the Community Corrections Act:
If the state wants to expand the range of alternative sanctions in an economical way, the CCA appears to be a good vehicle for doing so. However, the credibility and vitality of CCA needs to be reestablished. At a minimum, the Legislature should reassess and clarify the goals of Minnesota's overall correctional policy and determine how community corrections fits into it. We recommend that the Legislature consider the following issues:
