Albuquerque Journal

Overcrowding and lawsuits. Those prison problems certainly aren't unique to New Mexico, which might look to North Carolina for possible solutions to a growing quandary

Stories by Carla Crowder Photos by Richard Pipes Of the Journal

Journal staff writer Carla Crowder and photographer Richard Pipes
spent nearly a week looking at North Carolina's prison reforms.

RALEIGH, N.C. -- Ten years ago in North Carolina, crime rates were soaring, convicts were stacked like cordwood, prison overcrowding lawsuits were circling the state, and lawmakers didn't want to plunk money better spent on schools into new lockups for criminals.

Sound familiar?

With a prison system more than five times larger than New Mexico's, the overcrowding crisis that crippled North Carolina dwarfs the trouble we've seen.

These days, the judges and criminologists who returned justice to North Carolina's justice system are being praised in other states for their approach.

As recently as 1993, felons there were serving an average of 18 percent of their sentences. Habitual petty criminals served two weeks of two-year sentences. Prisoners were locked up long enough to get drug and medical screening, then pushed out the door.

Polk Youth Institution

An inmate at the Polk Youth Institution in Raleigh,
N.C., a prison for young adults, peers from behind
the heavy steel bars that pervade this antiquated
prison. A new, more efficient prison will replace
this one in a few months. Rapid prison construction,
combined with sentencing reforms and alternatives
to incarceration, have made North Carolina's
corrections system a model for other states.

"We had people even rejecting parole so they could stay in prison to get their teeth fixed. It was bizarre," said Superior Court Judge Tom Ross of Greensboro, one of the masterminds behind the improved system.

But hard time on paper has become hard time in prison. Since October 1994, when a reform known as structured sentencing
went into effect, career and violent criminals are sent to prison for years longer than their predecessors.

Matched with stepped-up community corrections and carefully planned prison building, all felons serve their full sentences.

Under structured sentencing, judges are confined to following a grid, or chart, in selecting sentence lengths. Depending on the type of crime and the number of prior convictions, a judge chooses from within a range of months-- no more, no less.
But the judge retains discretion within the range. And before penalty ranges are altered by the General Assembly, lawmakers have to authorize money for more prisons to handle the overflow.

Parole in North Carolina? Gone. "Good time," or early release for good behavior? Gone too. Repeat offenders? They're likely to do significantly more time, because there are extra prison beds with their names on them. But a sometimes bitter ingredient in this formula is that many nonviolent criminals and first-time offenders aren't locked up. They're funneled into
less-expensive community corrections alternatives.

Under New Mexico laws, judges have far more discretion in deciding sentence length and whether a criminal does hard time or probation. This year in the New Mexico Legislature, finding the money to build prisons has become a critical issue as the state grapples with overcrowding and the imminent closing of the medium-security building at the Penitentiary of New Mexico.

A handful of bills to toughen sentencing and reduce good time also have begun to surface -- one would limit a violent criminal's good-time eligibility to four days a month, and another calls for life without parole for violent sex offenders with two prior convictions.

Who goes behind bars

In North Carolina, lawmakers have learned the hard way to set priorities when beefing up sentences.

"We're deciding who we really want to send to prison," Ross said. "Instead of sending everybody without much thought to it, we're trying to say, 'Let's use prison for violent offenders who are a risk to public safety, to career offenders who don't seem to be able to learn, and for the rest of them -- the large majority of the people who come into the system -- let's try some less-expensive resources that are equally effective and perhaps more effective."

The reforms weren't done in one fell swoop. Lawmakers in the North Carolina General Assembly spent a few years putting Band-Aids on the overcrowding wounds. In 1991, a group of 28 law enforcement, criminal justice and public policy experts formed the North Carolina Sentencing and Policy Advisory Commission. This group wrangled over the structured-sentencing guidelines.

And all along, lawmakers had to spend money on new prisons just to dig themselves out from the triple-bunked inmates and to comply with get-tough policies brought on by crime waves in the late '80s and early '90s.

"You may not like the policy because some people believe judges should have a lot of discretion and we should just elect good judges and leave it up to them and stress rehabilitation. Or some people believe we should just let judges send people away for as long as they want and then throw away the key," said Dr. Stevens Clarke, a lawyer and criminologist at the University of North Carolina's Institute for Government.

Clarke and many others who have worked with the sentencing commission say the laws are fairer and that the violent thugs are off the streets longer than they have been in a long time.

"The structured-sentencing laws themselves make so much sense. You may not like the philosophy," Clarke said. "But at least it's clear. It's defensible. It's consistent."

Inconsistent sentences

One judge in Albuquerque says New Mexico's sentencing laws aren't always so consistent.

"We get complaints from the public, particularly victims, about someone I sentenced for a period of time and after about half the time they're back on the streets," said Chief Judge W. John Brennan of the 2nd Judicial District in New Mexico. "And they call me, frustrated about it."

Brennan said these kinds of early releases appear deceptive to the public, which expects eight years from the bench to translate into eight years in prison.

But with good-time laws in New Mexico, criminals can get their sentences cut in half if they behave reasonably well and participate in work or school programs.

Brennan said he's familiar with North Carolina's structured-sentencing laws. He said he believes some form of this law might be good for New Mexico. "It would give (judges) more credibility," Brennan said. New Mexico has had what's known as determinate sentencing since the late 1970s. But our law sets a broader range of sentences than the North Carolina law. Also, judges in New Mexico have more flexibility to suspend or enhance sentences and give probation.

Already, the Criminal and Juvenile Justice Coordinating Council, a group that advises the state Legislature, has studied North Carolina's system. The council, on which Brennan serves, is working on a legislative proposal to force violent criminals to serve at least 85 percent of their time while diverting some nonviolent offenders to prison alternatives.

Overcrowded issue

First came the overcrowding lawsuits in North Carolina. The New Mexico equivalent is the Duran Consent Decree, a federal
court order brought on by overcrowding and inhumane prison conditions here in the 1970s and 1980s.

In North Carolina, three separate suits alleged that confinement in that state's prisons amounted to cruel and unusual punishment because of overcrowding. By 1992, the system was 3,000 prisoners over capacity of 16,126, according to the North Carolina Department of Correction. By 1996, capacity was up to nearly 30,000. State officials say they've funded and broken ground on more prisons, which will eventually bring capacity to about 40,000.

New Mexico is running about 1,000 prisoners over capacity of 4,200. North Carolina's overcrowding suits were settled out of court. In order to comply with the settlements while new prisons were getting built, the state started placing caps on prison population.

"We realized the federal courts were taking over the state prison system, and we didn't want that to happen in North Carolina," said retired Rep. Anne Barnes of Orange County, who served as co-chair of the General Assembly's committee on prison overcrowding. Barnes said the committee instigated the capping process "in a way we felt was least distasteful, although it was distasteful to the public."

Consider these numbers: In 1988, prison capacity was 14,767. New admissions amounted to 19,325. And the average yearly population stood at 17,501, according to North Carolina Department of Correction figures. State officials struggled to keep violent criminals out of the pool of prisoners that traipsed in and out of that revolving door. "I could give somebody 10 years in 1986, and at least I'd know they'd serve about four years," Ross said. "But by 1990, I really didn't know. I would guess they'd serve about 2, but it would depend."

All this was "patchwork. And we finally got to a place where we said it will break the state to incarcerate everyone we want to," Barnes said.

Even with 7,356 new prison beds funded by the General Assembly between 1988 and 1992, the state wasn't even treading water because of jumps in population, violent crime and increased penalties for drug dealers and drunken drivers. That's when lawmakers and the sentencing commission figured out a way to match numbers of prisoners with the amount of money available to lock them up.

According to Barnes, the new philosophy became: "If it was tough enough to lengthen the sentence, rather than just political rhetoric, we should be willing to appropriate the resources."

Barnes sponsored the 1993 structured-sentencing law and a series of reforms that back it up. Starting in October 1994, North Carolina judges began dispensing justice by the grid.

Judicial discretion

A consistent complaint from long-time judges having to adjust to structured-sentencing laws is that it limits their discretion.

Ross has heard some of these complaints from colleagues. But he says the overcrowding crunch before structured sentencing left most of the discretion to the parole commission anyway. Judges "had paper discretion. We were giving long sentences that
sounded really tough, but we didn't know what they meant. The defendants didn't know what they meant. Victims didn't know what they meant. And in fact, they meant different things at different times, depending on how overcrowded the prisons," Ross said.

As for angry judges, "My argument was to them and still is today: They didn't have what I would consider meaningful discretion. Do they now? I think the answer to that is clearly, 'Yes,' '' Ross said.

For some property crimes, drug crimes and most misdemeanors, the sentences don't include prison time. Instead, judges must send the offenders into what's known as intermediate punishments. These include short-term boot camps, drug rehabilitation, reporting during the day to education and job-training centers and electronic monitoring.

Probation officers oversee this group of criminals. The cost can be as low as $5 a day to watch over those on house arrest. Day-reporting centers can run as high as $33 a day, still a bargain compared to an average of $57.35 an inmate per day behind bars.

Just because these nonviolent criminals aren't locked up doesn't mean they're allowed to run amok on the streets of Raleigh and Charlotte. If the criminals don't abide by the conditions of the intermediate punishment, the judge can yank them off the streets and into prison.

Structured-sentencing laws don't work unless the threat of jail time is real, said Forsyth County District Attorney Tom Keith, who was once leery of the grid but has begun to warm to the idea as long as prison space
remains available.

"We can incarcerate these people if they don't urinate in the bottle and attend their AA meetings," Keith said. "You've gotta have the iron fist in the velvet glove."

From a prosecutor's standpoint, truth in sentencing comes in handy during plea agreements. Before, some criminals were getting wise to the system and declining to accept pleas, thus tying up costly court time and resources for their trials.
The criminals were more willing to risk a trial because even if they got a stiff sentence, the parole commission would slice and dice it.

"Before, we never knew what the parole board was going to do. It was a joke," Keith said. The tables have turned, and once-cocky criminals used to the old ways are now "surprised when they have to go in jail and stay in jail," Keith said.

Not everyone is happy

State Rep. Robert Brawley, a Republican from Iredell, N.C., was one of two representatives who voted against structured sentencing in 1993.

"I felt like ... we should go ahead and find the money and build more prisons," Brawley said. A law change that bothered him most was the sentence for second-degree rape. "It dropped from a 30-year sentence to six or seven years at the most, and that's after you've done it twice," Brawley said.

Another critic of structured sentencing is victims' rights advocate Catherine Gallagher Smith. "I think we're sitting on a time bomb," Smith said. Her qualm with the system is that it doesn't seem to account for plea agreements that reduce violent crimes to misdemeanors. Often, a violent assault is pleaded down to simple assault and the attacker gets no jail time. "We strike a deal with the devil 98 percent of the time," said Smith, executive director of the Victims Assistance Network. Although lawmakers keep saying they can't build their way out of the crime problem with more prisons, Smith's work with scared victims makes her think otherwise.

Keith, the district attorney in the Winston-Salem area, also sees some weaknesses with the new laws, even though he believes they're better than the old system. He says he thinks penalties for the low-end, less-serious crimes need to be tougher. They include certain misdemeanors such as domestic violence, embezzlement and drug possession. "If you have no record, you cannot go to jail. Yeah, that's a problem," Keith said.

Still, out of about a dozen people interviewed for this story, none could point to a case in which an offender given an alternative, intermediate punishment had turned around and committed a violent crime while in the community.

As new prison space opens up, lawmakers have tweaked the grid every year since structured sentencing passed. For the past three years, they've been able to "ratchet up" some of the punishments, as Clarke puts it. The General Assembly also reviewed misdemeanor penalties and set up the misdemeanor grid to allow for tougher penalties and possible prison time for habitual petty criminals, Brawley said.

Still, the goal remains to keep looking at alternatives for people who are not a threat to the public. Or, Barnes asked, "Do we want to forever be building prisons as our only solution?"

Copyright © 1997 Albuquerque Journal

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