Fundamental Change in the Justice System-Adam Gelb-Pew

Fundamental Change in the Justice System-Adam Gelb-Pew

DC Public Safety Radio


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LEONARD SIPES: From the nation’s capital this is DC Public Safety. I’m your host Leonard Sipes. Ladies and gentlemen, we got a treat for you today. Adam Gelb, the Director of the Pew Public Safety Performance Project. We’re going to be talking about fundamental change within the criminal justice system. I want to read briefly from Adam’s bio. Adam Gelb directs Pew’s Public Safety Performance Project, which helps states advance policies and practices in adult and juvenile sentencing and corrections that protect public safety, hold offenders accountable, and control correctional costs. As project lead, Adam oversees Pew’s assistance to states to seek a greater public safety return on their corrections spending. He also supervises a vigorous research portfolio that highlights strategies for reducing recidivism while cutting costs. Adam frequently speaks to the media about national trends and state innovations, that’s why we have Adam by our microphones.

And before we start the program, I think that Adam and Pew are probably the principle spokespeople for fundamental change within the criminal justice system in this country right now. There are a lot of groups out there that are doing wonderful things, Council of State Governments, Urban Institute, the US Department of Justice. Lots of organizations are really promoting a fundamental change within the criminal justice system. But it’s Adam and Pew that seems to get the press and Adam and Pew that seem to get the notice, thus making Adam probably in my opinion the principle spokesperson for fundamental change within the criminal justice system. Adam Gelb, welcome to DC Public Safety.

ADAM GELB: Thank you very much, Len. It’s great to be with you.

LEONARD SIPES: Do you disagree with me when I say that? Pew is on the forefront, Pew because it is Pew. It’s not government so you don’t have to be overly careful. Pew is out there leading fundamental change within the criminal justice system. Do you agree or disagree?

ADAM GELB: You are very kind and generous. We are not doing any of the things that we’re doing without the partnerships with the organizations that you mentioned.


ADAM GELB: And it’s terrific to be part of what really now is a movement –


ADAM GELB: To fundamentally change the criminal justice system and I think we’re seeing that happen.

LEONARD SIPES: Len, we are almost upon the 20th anniversary of the Crime Bill signing, right, back in 1994?

ADAM GELB: Uh huh.

LEONARD SIPES: There was an historic landmark piece of legislation passed of more police – you remember the 100,000 police –?


LEONARD SIPES: And Midnight basketball prevention?

ADAM GELB: But also 7.9 billion dollars that the federal government put out for states to increase their prison populations. And here we are 20 years later, a lot of prisons have built, right, we got to a point in 2008 where 1 out every 100 adults in this country was behind bars –


ADAM GELB: And 1 out of every 31 was on some form of correctional, under some form of correctional control. No doubt increased incarceration helped reduce the crime rate over this period and nobody –

LEONARD SIPES: And there’s been an almost continuous 20 year reduction in crime.

ADAM GELB: That’s right. And nobody really challenges the notion that increased incarceration helped achieve some of that crime reduction. But the best research on the question shows that about 30%, maybe a third of the crime drop, can be attributable to increased incarceration, the rest has come from other things, and also significant consensus now that we’re past the tipping point, where more and more incarceration is not the best way to reduce crime.

LEONARD SIPES: There’s bipartisan support now across the board in terms of both sides of the aisle, so the issue was not a Republican issue, it’s not a Democratic issue. There is really significant support from both sides. Every governor in this country has had a conversation with their state corrections administrator in terms of you got to control correctional cost. Criminological associations, organizations have basically said, we think that there’s a better fairer, more just, more productive, smarter way of conducting the criminal justice system, of doing business within the criminal justice system. And that in essence is the heart and soul of what Pew has tried to do, in bring a smarter, better databased approach to fundamental change.

ADAM GELB: That’s absolutely right. There is now consensus, broad political consensus on issues that used to be among the most divisive in American politics.

LEONARD SIPES: That’s right.

ADAM GELB: And just quickly think about this. Back in 1994 when the Crime Bill was being debated – I just want to us an example here of how things have changed – there was a young congressman named John Kasich from Ohio, who was one of the chief negotiators on the Crime Bill at the time, and there was a big debate in terms of the prison section of that bill about what the money would be used for, and the debate came down to two words. The two words were “and programs”. And the question was. Was all this money, the 7.9 billion dollars, going to be for facilities, bricks and mortar, or for facilities and programs? And the final bill ended up being all about bricks and mortar. Then Representative John Kasich and the Republican leadership had their way on that issue and the money turned out to be all for brick-and-mortar. Now flash-forward 20 years, John Kasich is the now the governor of Ohio, and, along with the Council of State Governments and the Justice Department and help from our project and the Justice reinvestment Initiative, that state has undertaken a very comprehensive set of reforms to try to make sure that prisons are for career and violent criminals and that lower level, nonviolent offenders are steered into more effective alternatives. Ohio has a long way to go, but the state has made some significant changes under the leadership of Governor Kasich, and he’s very proud of making that move. And so to see the contrast, were we were 20 years ago during the Crime Bill debate and where we are today is rather dramatic.

LEONARD SIPES: How many states are we talking about the Pew and allied organizations have worked with?

ADAM GELB: I’d say about 30 states.

LEONARD SIPES: It’s about 30 states. So it’s most of the states in the United States.

ADAM GELB: That’s how that –

LEONARD SIPES: Needless to say. Yes.

ADAM GELB: That’s how that works.

LEONARD SIPES: That’s how that works. And so but think about that, that’s significant. I mean when you started this whole thing it was really a lot of uncertainty. Now you have 30 states behind your belt. And these states are doing a data analysis, looking at every aspect of the criminal justice system, trying to figure out if there’s a way of doing it smarter through data, keeping the people who are at obvious risk to public safety, but doing quote, unquote “something else with everybody else”.

ADAM GELB: I think you’re putting finger on one of the keys to why we’re seeing as many states make as dramatic changes as they are, and that is because the justice reinvestment approach is based on data and research. There is not an imperative here through this initiative to get rid of mandatory minimums or to divert all first and second time drug offenders, which you may or may not have an opinion on, but that’s not the approach. The approach is on a state by state basis roll up your sleeves, dig into the data, see what it shows about what the specific drivers are of the prison population in that state. And as you can imagine over 30 states there’ve been all kinds of different particular policies, statutes that are driving the prison population. In one state, which happens to be state where you go to state prison for any offence that carries 90 days or more, one of the leading drivers of state prison beds was driving with a suspended license. And so when you take an approach that is based on data and research, and not on emotion and ideology, you can find some common ground and consensus.

LEONARD SIPES: Okay. One of the things we want to talk about  today are people coming out of the prison system unsupervised. Now, there’s been an increase per your research and per research from the Bureau of Justice Statistics, from the US Department of Justice, there is data that basically says that more people are coming out of the prison system unsupervised. My sense is, is that some people would say, “Well, so what?” What is the answer to “so what”?

ADAM GELB: Well, I’ll just say, overall the trend is in the right direction, right, as we’ve just been talking about, lots of states doing data analysis and identifying smarter ways to do sentencing corrections policy. This trend you just mentioned is a little bit of a counterweight to that, it’s a little bit of a wind blowing in the opposite direction, and that is that a large and increasing number of offenders are serving out their prison sentences to the very last day and then being released to the streets without supervision. Back in 1990 it was about 1 in 7, about 14% of offenders were coming out that way, maxing out without supervision, and we found, unfortunately, that up through 2012 that had now increased to about 1 in 5.


ADAM GELB: Actually 22% of offenders now being released without supervision.

LEONARD SIPES: Why the increase?

ADAM GELB: Yeah. So product of a number obviously of different states, of different policies in specific, but really at the end of the day a prevailing attitude or philosophy that the best way to reduce crime would be to lock up as many people and hold them for as long as possible. And so it’s decisions by legislatures, in terms of restricting discretion of parole boards and other releasing authorities on the back end, and then decisions by parole boards, that rather than put our names behind the release of a particular inmate, it’s safer for everybody to hold that inmate till the very end of his or her sentence. And so a combination of factors led to it. What we’re seeing now, and this is very encouraging, is several states realizing this does not make sense for public safety. It does not make sense to hold somebody to the very last day of their sentence and then release them to the streets with no supervision. This is somebody who, right, who would’ve been institutionalized in some cases for a number of years, 24 hours a day, 7 days a week.


ADAM GELB: And then expect to succeed –


ADAM GELB: When they get back home without any instruction, supervision –

LEONARD SIPES: One day they’re in prison, one day they’re on the street and –

ADAM GELB: Support –


ADAM GELB: Accountability or anything of the kind. And that if you’re serious about public safety the better thing to do is to make sure that there’s a period of supervision that’s carved out of that prison term. And we have about eight states in just the last couple years that have passed mandatory reentry supervision policies that essentially require inmates to be released before their sentence is expired to ensure there’s a period of transition and supervision.

LEONARD SIPES: Now, parole, historically parole has done a lot better than those people who are mandatorily released. They’ve done a lot better. There’s been up to a 20% difference. In most years it’s a 15% to 20% difference between those paroled. The discretionary release based upon a person doing well within the prison system, obeying the rules, engaging in program and coming up versus those people who are, that none of that happens, the person just maxes out, whether they’re supervised or unsupervised. Now, parole and supervision seems to have a positive effect based upon that data and that data alone.

ADAM GELB: Yeah. That’s right. And this is a tricky issue, because people who max out may be maxing out because they are misbehaving –


ADAM GELB: Behind the walls –


ADAM GELB: And they’re not completing programs or they’re assaulting guards, and in those cases, right, I think everybody sort of agrees, you want those people to spend more time behind bars –


ADAM GELB: Still. And this is the case in particular even for inmates who are in solitary confinement. We see corrections professionals and policymakers saying even those people you don’t want them to be released to the streets without supervision. What sense does that make either? And so most of the states are carving out a period of supervision to make sure that it’s there; a couple of states have said we want to tack on this supervision period at the end, of course that’s difficult because of the funding. And really I think, Len, at this point policymakers are starting to realize and the public certainly realizes, and our polling shows this, that it doesn’t really matter whether somebody gets out in June or July. People at this point understand we’re not going to build our way to public safety and that the most important thing is that the system does a better job reducing crime, right? We have 87%, 90% of voters will respond favorably when asked the question, “Does it matter to you more whether somebody spends a longer time behind bars or that whenever it is that they do get out that they’re supervised adequately so they don’t commit another crime.

LEONARD SIPES: But the bottom line is you want them supervised. So the research, your polling, criminologically speaking they’re better supervised. It’s better then – instead of one day in solitary, the next day on M Street. How do we expect that person to successfully reintegrate in society without any help, without any assistance, without any place to go to?

ADAM GELB: That’s right. And we presented some research in this report, our max out report that you mentioned, from both Kentucky and New Jersey that shows that outperform max-outs, they’re less likely to return to prison for new crimes. Unfortunately the cost savings isn’t as great as it might be because some of them are returned to prison for technical violations.


ADAM GELB: Breaking the rules of their supervision. But their rates of crime commission are lower. And in the New Jersey, in particular, we were able to control for risk. So the issues we mentioned a minute ago, which is that somebody who’s maxing out might be higher risk, say, than a parolee, well, this research actually controlled for that and compared similar risk offenders who maxed out to similar risk offenders who were put under supervision, and those offenders who were under supervision by New Jersey parole returned to prison 36% less frequently for new crimes than the max-outs do.

LEONARD SIPES: Okay. But California, the California Realignment is such an odd duck compared to what’s happening in the other 49 states, I realize that. And realignment in California, ladies and gentlemen, if you don’t know, is the idea of sentencing individuals to local jails for crimes that ordinarily would’ve gone to state prisons and also releasing massive numbers of offenders. Every time I look the number seems to change, but somewhere in the ballpark of 30 to 40,000 people coming out of the prison system and being supervised locally instead of the state parole. So the bottom line there is that they did release a bunch of people with a no-cut contract, that unless you committed a new crime, they were unsupervised, and they wanted that to happen. They sort of felt that if they were supervised more people would end upcoming back, better than not being supervised at all and better than only coming back if they had committed a new crime. So there’s an example where people are releasing people unsupervised and they think it’s a good thing.

ADAM GELB: Right. Our report calls for universal post-prison supervision. The point you make and what was recognized in California some time ago is that there are some people who, for some combination of reasons, come out the back door of the prison gate and they’re fairly low-risk. And you on your show have highlighted many times the research that says you don’t want to over-supervise low-risk people, right?


ADAM GELB: You’re going to make them worse. You’re going to put conditions on them that are just too difficult for them to meet. You’re going to have them in programs with other offenders who they shouldn’t be consorting with and building relationships with people they shouldn’t be hanging out with and so on. So while there’s a call for universal post-prison supervision, like with everything, there needs to be some flexibility and a safety valve here to make sure that the state would have flexibility to determine that some inmates in fact should not be really actively supervised but could be on an administrative case load or some other way to make sure they don’t reoffend.

LEONARD SIPES: Our guest is Adam Gelb. Halfway through the program, and these programs with Adam fly by very quickly. Adam Gelb, Director of the Pew Public Safety Performance Project, talking about fundamental change within the criminal justice system, in this particular program talking about unsupervised offenders. Now, they’re coming out unsupervised in states because of, and I still have been struggling with this reason, we know that they do better upon supervision, but even that’s been a controversial issue within criminological circles. There are a lot of people who say that there’s very little difference between supervision and no supervision in parole and probation. And what they’re saying is it’s the programs that make the difference, not the supervision. So are we talking about coming out of prison not just unsupervised but without assistance? Is that the principle concern?

ADAM GELB: Yeah. There was nothing in our broad national research that identified, right, the components of effective supervision, but, as you’re well aware, lots of research has and there are many different aspects of, right, what makes an effective supervision scheme. We don’t want to do a lecture on this now, but I would highlight a couple things. It goes back to the beginning of our conversation. And what we see out in the states working with corrections and parole officials, working with state legislators and other policymakers are the following. There have been tremendous advances in how we do risk assessment. It wasn’t anywhere near the kind of science 20, 30 years ago that it is today, right?


ADAM GELB: So we know so much better about how to identify and sort offenders by risk level, high, medium, or low, and also what, right, what the criminogenic risk factors are, and then how to target the interventions to individuals offenders’ criminal risk factors. We also –

LEONARD SIPES: Being smarter about making the decisions of what we do with people on community supervision.

ADAM GELB: Absolutely.


ADAM GELB: And then we know what programs are more likely to work with the offender population and in particular a cognitive behavioral therapy, right?


ADAM GELB: This is a move away from sitting around in a group and talking about your problems, which has some value. But the research is really pretty clear that a cognitive behavioral approach and really breaking down what are the triggers that in people’s lives provoke them to use drugs or do other things they shouldn’t be doing and try to come up with strategies, just very practical strategies for avoiding the people, the places, and the things –


ADAM GELB: That get them into trouble.

LEONARD SIPES: Drug treatment –

ADAM GELB: You know more about –

LEONARD SIPES: Mental health, job assistance –

ADAM GELB: And how to specifically do those things effectively, because, right, we don’t want to talk about – all those things aren’t effective. You can’t just say we’re going to do job assistance and that is going to work, or drug treatment, right?


ADAM GELB: There’s a lot more knowledge about how to make those broad buckets of programs effective. And then finally, and this is something that, Len, you have pioneered in your career, is the electronic monitoring piece did not exist back in the day, but whether it’s GPS or rapid result drug tests or ATM like kiosks that low level offenders can report to rather than taking up the time of a supervision officer, these are technologies that are not only efficient, but they’re giving policymakers and judges and prosecutors I think more confidence that there’s a credible alternative to prison for appropriate offenders.

LEONARD SIPES: And if you put it all together these programs do have a way of reducing recidivism, do have a way of reducing the return to the prison system, so it’s a win-win situation for everybody. There’s fewer crimes, less money that states have to spend on their corrections budgets, and they can take some of that money and redirect it in other directions, whether it was restorative justice with the idea of saying, “Hey, fine. You’ve saved me 15 million dollars. We’re going to invest 7 million of that 15 million in terms of programs for people under supervision.” or building bridges and taking care of older people or building schools or that sort of thing. So it seems to be a win-win situation for everybody. So, again, I go back to the question. If it’s a win-win situation for everybody, if we now have these tools, we now have this understanding, we’re in 30 states and 30 states are using data to make good decisions, how come the rate of unsupervised offenders is going up?

ADAM GELB: There, as you know, there are so many facets of the criminal justice system, there’re sentencing laws, there’re release laws and policies, there’re practices throughout the system, and this is one piece that has lagged behind the others. I think our report has shed some light on it and we’ll hopefully accelerate attention to it and try to make sure that more and more states are looking at their own situations. There’s tremendous variance, by the way, here in the state max-out rates, right? We talked about the overall national rate being 22%. But Florida has the highest max-out rate with 64% –


ADAM GELB: Of inmates, right?


ADAM GELB: Almost two out of three inmates in Florida maxing out their prison terms, down to the opposite end of the scale, which is Oregon, which has almost no one –


ADAM GELB: Maxing out. So this is on a state by state basis something that needs to be part of what officials who are serious about public safety and serious about containing the cost of corrections in overall government spending need to look at.

LEONARD SIPES: But to be powerful, to really have the results that we’re looking for in terms of people under supervision, you have to have the programs, you have to have the caseloads, you have to have the tools, you’ve got to have the mechanisms in place to really do both supervision and programming, and a lot of states don’t. Bill Burrell, an independent parole and probation consultant is coming before these microphones in a couple weeks to talk about his concern that states are being underfunded, and this whole revolution that’s occurring within the criminal justice system, in many ways thanks to Pew and thanks to your leadership, may be at risk because states aren’t providing enough funding for programs and for supervision and not providing the tools necessary to do a good job, to supervise people, to reduce crime, to lessen the rate of return back to the prison system. That seems to be his concern and the concern of many others.

ADAM GELB: It’s a very valid concern and everybody involved in this work has the exact same concern. Some states have been very aggressive about reinvesting prison savings into supervision, others less so. But as a general matter, hundreds of millions of dollars have been plowed back into supervision coming out of the sentencing and release law and policy changes. And I think there’s a growing awareness that the parole and probation systems are the backbone of this system and that they need to be adequately funded.

LEONARD SIPES: And that’s a fundamental sea change. When you and I were in the state of Maryland I remember asking the people within Parole and Probation, I said, “What is the role of parole and probation?” and their response was to enforce the dictates of the court and enforce the dictates of the Parole Commission. There was nothing there about reducing recidivism, there was nothing there about gaining a bigger bang for the tax paid dollar. It was simply to follow the rules. And at one point when we were with the state of Maryland, 70% of the intakes in one particular year were parole and probation violations. So there’s no way a state prison system can operate efficiently if 70% of your parole probation, if 70% of the intakes are parole and probation failures. There’s got to be a better way of doing it. That’s why there’s a bit of a dichotomy. There’s a bit of a struggle, there’s a bit of frustration. We had this consensus, we have Pew, we have all these organizations that are pushing for fundamental change, fundamental change is happening, yet parole and probation still seems to be short-funded or shortchanged.

ADAM GELB: I think almost any agency of government is always going to claim that it is underfunded. That said there are lots of new dollar flowing in the direction of these agencies and a rising awareness of their role as part of the crime fighting machinery in the states. We see in state after state, really changing the culture of the conversation around here and it’s sort of based on two things. One is the growing awareness of the research that shows that supervision can work if it’s done well.


ADAM GELB: And there really is a growing awareness among policymakers of that research. And the National –

LEONARD SIPES: It’s a sea change.

ADAM GELB: The National Governor’s Association, the National Conference of State Legislatures, the National Center for State Courts, as well as the partners that you’ve mentioned, the Justice Department, Council of State Governments, Justice Center, the Bureau Institute on Justice, there are a lot organizations providing information to policymakers about this and it’s starting to sink in. So on that side there is growing recognition of credible alternatives. The flip-side of that is that more and more people seem to think that prisons are essentially schools for crime, and particularly on the conservative side here a lot of the conservative voices are saying, “This makes no sense and how can we expect large government bureaucracies that put a bunch of criminals together to turn out people who are corrected?” And so there’s growing, at the same time as there’s growing confidence in alternatives, there’s growing skepticism that prison will actually accomplish that recidivism reduction that some folks once thought they would.

LEONARD SIPES: Final four minutes of the program. There has been a sea change in terms of both of our careers, where we are in terms of people coming out of the prison system, what happens to them, how they’re supervised, how they’re assisted. The conversation has changed completely. What does the future hold? Where are we going within the next five years in terms of a fundamental change within the criminal justice system?

ADAM GELB: Great question. And I don’t have a crystal ball here, but I’ll give you –

LEONARD SIPES: But you’re leading the charge so guess.

ADAM GELB: I’ll give you some thoughts. It is a mystery to many people why the prison population has leveled off and started to fall in the context of a sour economy. And it’s nice to see the economy picking back up again at the extent to which you want to think there’s a relationship between the crime rate and the economic situation. That’s a myth that has been challenged, drastically, right? It’s been –


ADAM GELB: It’s been almost a full six years since the collapse of Lehman Brothers and the start of the Great Recession, and we have seen a sort of plateauing of the crime drop. It’s, it continues down slightly, not at the same rate it had been.

LEONARD SIPES: But from a longitudinal point of view it has plummeted –

ADAM GELB: It is way down.

LEONARD SIPES: And for the last four years there’s been a decrease in admissions to prisons.

ADAM GELB: That’s right. So from that perspective it looks like the population will continue to head down. A lot of these reforms that the states that we’ve been talking about have done really are just starting to kick in. I mean the last, really the last two or three years the states have gotten even more aggressive about some of the reforms that they’re embarking on, changing property crime statutes, changing the penalties for drug offences, diverting more offenders, reducing length of stay, incentivizing offenders to comply with supervision so that they can earn their way off sooner, which is another way of creating resources –


ADAM GELB: For supervision. Not more dollars, but it’s reducing caseloads by getting these low-risk offenders off of those caseloads, etc. So for those reasons I think we’re going to start to see the population go down. There’s something else afoot here, Len, that we don’t have good measures for yet that we need to start tracking, and that is not just the quantity of offenders behind bars, but, if you will, the quality.


ADAM GELB: And what a lot of these reforms are designed to do is not necessarily explicitly reduce the prison population itself, but to make sure that the prison beds are occupied by truly dangerous offenders, by the violent career criminals.

LEONARD SIPES: The people posing the highest risk to public safety.

ADAM GELB: That’s right. And this is what governors and legislative leadership want to talk about, they want to talk about making sure the taxpayer dollars funding these expensive prison cells are being used for serious chronic and violent offenders. And we need to start having some more measures that look at whether that’s true, whether that’s actually happening. And I think it is. When you look at the changes in the sentencing and release laws and policies for nonviolent offenders and changes in policies we’re dealing with, technical violators on supervision, I think we’re starting to see a lot of states change the complexion, the composition of their prison populations, and we will see over time a significant increase in the –

LEONARD SIPES: We both agree that there has been a huge change and a very positive change in terms of the conversation about what we do with the criminal justice system.

ADAM GELB: There really has. It’s a very exciting time in this field.

LEONARD SIPES: And a very exciting time because of the work of Pew and the partners. Ladies and gentlemen, we’ve been talking to Adam Gelb, Director of the Pew Public Safety Performance Project, talking about fundamental change within the criminal justice system. And, ladies and gentlemen, we really do appreciate your comments, we really do appreciate your criticisms, and we want everybody have themselves a very, very pleasant day.

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