Chapter 5
Controlling Crime

Systems are in place in the United States to prevent and deter crime. When these efforts fall short and a crime is committed, the justice system of the United States goes into action. The system has three major components that work together:

• Law enforcement agencies gather evidence and capture suspected perpetrators.
• The judicial system tries perpetrators in a court of law and, if they are found guilty, sentences them to a period of incarceration or some other form of punishment, restitution, and/or treatment.
• Correction agencies house convicted criminals in prisons, jails, treatment centers, or other places of confinement.

CITY, COUNTY, AND STATE LAW ENFORCEMENT

The vast majority of law enforcement in the United States is carried out by local and state agencies. According to the Federal Bureau of Investigation (FBI) in its Uniform Crime Reporting (UCR) program, in 2005 the United States had 14,291 city, county, and state police agencies. (See Table 5.1.) In 2005 the United States had 969,070 full-time law enforcement employees, including 673,146 sworn police officers and 295,924 civilian employees. A significant majority (88.4%) of police officers were male, while 61.8% of civilian employees were female. Suburban counties employed 438,747 law enforcement personnel, and all cities with populations of 250,000 or more employed 202,230 law enforcement personnel. All cities with populations of one million or more employed 110,340 law enforcement personnel.

Killed in the Line of Duty

From 1996 through 2005, felons killed 575 law enforcement officers. This excludes those who were killed in the terrorist attacks of September 11, 2001. (See Table 5.2.) Although the number of officers killed increased in 1997 and 2001, in general the number of law enforcement murders has declined, from 61 in 1996 to 55 in 2005.

FEDERAL LAW ENFORCEMENT

According to Brian A. Reaves of the Bureau of Justice Statistics (BJS) in Federal Law Enforcement Officers, 2004 (June 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/fleo04.pdf), federal agencies in September 2004 employed about 105,000 full-time officers who were authorized to make arrests and carry guns. This figure reflects a 13% increase from 2002. Of the major federal law enforcement employers in 2005, the U.S. Customs and Border Protection employed the highest number (27,705), followed by the Federal Bureau of Prisons (15,214) and the FBI (12,242). (See Table 5.3.)

The BJS reports that in 2005 about 84% of federal officers were male. Of agencies employing five hundred or more full-time officers with arrest and firearm authority, the Administrative Office of the U.S. Courts employed the highest percentage of women, 44.2%, and the U.S. Fish and Wildlife Service had the smallest proportion, 8.7%, of female officers. (See Table 5.4.) The U.S. Customs and Border Protection had the largest minority percentage, 46.8%. About two-fifths of the officers at the Veterans Health Administration (40.1%) and the Federal Bureau of Prisons (39.7%) were members of a racial or ethnic minority group.

GOALS OF THE CORRECTIONS SYSTEM

The corrections system operates prisons, oversees parole, and administers probation. Parole and probation are systems for monitoring and controlling criminals without removing them from the general population. According to the Civic Practices Network (CPN) in Balancing Justice: Setting Citizen Priorities for the Corrections System (1996,

http://www.cpn.org/tools/manuals/Community/balancing justice.html), the role of the correctional system is to carry out the sentence that the criminal court system gives to the offender. CPN lists five goals for the system:

• "Punishment—Making criminals suffer for their crimes"
• "Incapacitation—Keeping criminals from committing other crimes by keeping them off the streets"
• "Restitution—Ensuring that criminals pay a debt to victims and to society as a whole"
• "Deterrence—Preventing crime by making it clear to potential criminals that the consequences of committing a crime are severe"
• "Rehabilitation—Helping criminals become productive, responsible citizens who can contribute to society and avoid committing crimes once they are released"

There is considerable disagreement over which of these goals should be emphasized, and how to do so. The issue of how best to keep prisoners who have completed their sentences from committing new crimes after their release (recidivism) is especially controversial. Another area of much dispute is how severe of a punishment is merited by particular crimes.

Effectiveness of Prisons

The BJS reported in Reentry Trends in the U.S.: Recidivism (2002, http://www.ojp.usdoj.gov/bjs/reentry/recidivism.htm#recidivism) that slightly more than two-thirds (67.5%) of prisoners released from state prison in fifteen states in 1994 were rearrested within three years. (See Table 5.5.) This rate was higher than in 1983, when 62.5% of released prisoners were arrested again within three years. The rearrest rate for drug offenders increased most dramatically, from 50.4% in 1983 to 66.7% in 1994. However, the BJS notes that reconviction rates did not change significantly from 1983, when 46.8% were reconvicted, and 1994, when the rate was 46.9%.

In a study of maximum-security—"supermax"—prisons, Daniel P. Mears (Evaluating the Effectiveness of Supermax Prisons, Urban Institute, March 2006, http://www.urban.org/publications/411326.html) reported that these prisons have a broad range of unintended effects, including increased mental illness. However, noted Mears, there also were "positive unintended effects of supermaxes, such as improving living conditions and outcomes for general population inmates." Prison wardens generally agree that supermax prisons are effective in "increasing safety, order, and control throughout prison systems and incapacitating violent or disruptive inmates." Nonetheless, studies have not been done to determine if the cost of running these prisons justifies the benefits.

Although some people, like the prison wardens who participated in the Urban Institute study above, think that our nation's prisons are achieving their goals, others believe that the nation's prison system needs some major reforms. Writing in the San Francisco Chronicle, Mark Martin ("Prison Reform Needs Reform. Corrections System Can't Do Task Alone," March 12, 2006, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/03/12/ING6N HHM0U1.DTL) reported that, according to those who have studied California's prison system (the country's largest):

Sentencing laws enacted more than 30 years ago, and repeatedly described as a failure, require nothing of inmates, who sit in cells or on yards instead of entering drug treatment or vocational education programs. Corrections administrators have little power to determine when an inmate is truly ready to leave prison, and that results in the daily release of dangerous people back into the neighborhoods they previously terrorized. Overburdened parole agents are required to monitor virtually every parolee, leaving the agents little time to concentrate on the parolees most likely to pose a threat to citizens. That has resulted in this shocking fact: More than 20,000 California parolees are unaccounted for on any given day.

When Prisoners Reenter the Community

What happens to prisoners after they leave prison is an important measure of the corrections system's effectiveness. In Returning Home: Understanding the Challenges of Prisoner Reentry (Urban Institute, January 24, 2004, http://www.urban.org/publications/410974.html), Christy Visher et al. studied the experiences of inmates who left prisons in Maryland and returned to the community. They found that about 40% of respondents were working full time thirty to ninety days after their release from prison. About half (51%) relied on their families for financial support. During the first few months after release, 32.6% used drugs or got drunk. Although 45% of respondents had participated in a post-release program, few found the programs useful in their transition to community life. Nonetheless, even though participants had extensive criminal histories and family members with criminal records, 78% thought that they would be able to stay out of prison.

PRISON SENTENCES

After a person is found guilty of a crime, he or she is often sentenced to a period of incarceration. Sentencing policies in the United States have changed since the 1970s. According to historical BJS records (http://www.albany.edu/sourcebook/pdf/t6282004.pdf), prison populations began increasing in 1973, when the rate was 96 prisoners per 100,000 adult residents in the United States; in 2005 the rate was an estimated 491 per 100,000, according to the BJS statisticians Paige M. Harrison and Allen J. Beck in Prisoners in 2005 (November 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/p05.pdf). The total number of inmates in federal or state prisons in 2005 was 1.5 million, an increase from 1.2 million in 1995. From 2004 to 2005 the prison population increased by 1.9%.

The period of expanding incarceration coincided with emphasis at state and federal levels on controlling the use and distribution of drugs. The modern "war on drugs" began in the early 1970s under President Richard Nixon. The Drug Enforcement Agency was created to spearhead anti-drug efforts and federal funding for drug control increased substantially. Many state and local governments also cracked down on drug use and trafficking. The result was a substantial increase in the number of people sentenced for drug crimes, which in turn put a strain on the U.S. criminal justice system and created controversies that persisted into the twenty-first century.

It is against this background that new sentencing policies developed. BJS statisticians Paula M. Ditton and Doris James Wilson (Truth in Sentencing in State Prisons, January 1999, http://www.ojp.usdoj.gov/bjs/pub/pdf/tssp.pdf) summarize the situation beginning with the 1970s as follows:

In the early 1970s, states generally permitted parole boards to determine when an offender would be released from prison. In addition, good-time reductions for satisfactory prison behavior, earned-time incentives for participation in work or educational programs, and other time reductions to control prison crowding resulted in the early release of prisoners. These policies permitted officials to individualize the amount of punishment or leniency an offender received and provided means to manage the prison population.

Such discretion in sentencing and release policies led to criticism that some offenders were punished more harshly than others for similar offenses and to complaints that overall sentencing and release laws were too soft on criminals. By the late 1970s and early 1980s, States began developing sentencing guidelines, enacting mandatory minimum sentences and adopting other sentencing reforms to reduce disparity in sentencing and to toughen penalties for certain offenses, specifically drug offenses (as part of the "war on drugs"), offenses with weapons, and offenses committed by repeat or habitual criminals.

TRUTH-IN-SENTENCING

Sentence reforms enacted by states came to be known as "truth-in-sentencing" statutes. The first such statute was enacted by the state of Washington in 1984. Also that year, Congress established the U.S. Sentencing Commission (USSC) in the Sentencing Reform Act. Congress charged this new federal agency with developing sentencing guidelines for federal courts. The Sentencing Reform Act was the federal enactment of truth-in-sentencing.

Truth-in-sentencing is intended to tell the public that a sentence announced by the court will actually be served—rather than the criminal serving only some small fraction of the sentence, the prisoner being released on parole, or the individual having the sentence commuted to probation and serving no time at all. Under truth-in-sentencing statutes, offenders are required to spend substantial portions of their sentences in prison.

With truth-in-sentencing came the distinction between indeterminate and determinate sentencing. Indeterminate sentencing gives parole boards the authority to release offenders at their option after a process of review. Determinate sentencing takes decision-making power away from parole boards, fixes the term to be served, and provides or denies the means to shorten the sentence by good behavior or other "earned" time. Part of the truth-in-sentencing statutes are mandatory minimum sentences for specific offenses and circumstances. Guidelines define the range of sentences the judge may apply, again governed by the offense and the prior history of the offender (for example, first-time or repeat-offender, severity of the offense, etc.).

Setting uniform sentences for offenses and requiring that fixed proportions of them be served by those convicted put pressure on prison and jail capacities. In response, Congress passed the Violent Crime Control and Law Enforcement Act of 1994, known as the 1994 Crime Act. The Crime Act included the authority for the federal government to offer grants to states to expand their prison capacity if they imposed truth-in-sentencing requirements on violent offenders. To qualify for the grants, the states had to pass laws requiring that serious violent offenders serve at least 85% of their imposed sentences in prison.

Impact of Truth-in-Sentencing Laws

Katherine J. Rosich and Kamala Mallik Kane ("Truth in Sentencing and State Sentencing Practices," NIJ Journal, No. 252, July 2005, http://www.ojp.usdoj.gov/nij/journals/252/sentencing_print.html) summarized the results of a study by the Urban Institute's Justice Policy Center on the impact of truth-in-sentencing practices. According to the researchers, when the federal truth-in-sentencing incentive grant program was implemented, many states were already changing their sentencing structures and practices. State truth-in-sentencing reforms varied greatly, and many were in place before the federal grant program was enacted. Most states (forty-one plus the District of Columbia) had some type of truth-in-sentencing activity by the end of the 1990s. More than half of all states (twenty-eight) and the District of Columbia had received federal grants; another thirteen states with some truth-in-sentencing activity did not receive federal truth-in-sentencing grants.

The Urban Institute study found that, overall, federal truth-in-sentencing grants led to relatively few state truth-in-sentencing reforms. Many states had already adopted some form of truth-in-sentencing by the time the federal truth-in-sentencing program was implemented, and there was relatively little reform activity after 1994. In addition, according to Rosich and Mallik Kane, state truth-in-sentencing "practices generally increased the expected length of time to be served, but these increases were rarely the main contributor to increases in prison populations. Changes in crime rates, arrests, and prison admissions were often more influential."

FEDERAL SENTENCING GUIDELINES

The Sentencing Reform Act of 1984 is the federal approach to truth-in-sentencing, or determinate sentencing. The USSC's publication Fifteen Years of Guidelines Sentencing (November 2004, http://www.ussc.gov/15_year/15year.htm) lists the goals of the Sentencing Reform Act:

1. Elimination of unwarranted disparity
2. Transparency, certainty, and fairness
3. Proportionate punishment; and
4. Crime control through deterrence, incapacitation, and the rehabilitation of offenders

The act was designed to eliminate the unregulated power of federal judges to impose sentences of indeterminate length. Because of this unregulated power, some people were convicted of the same crime but sentenced by different judges to receive wildly different terms of incarceration. The USSC developed federal guidelines to give a range of sentencing options to federal judges while guaranteeing minimum and maximum sentencing lengths.

The USSC continues to update the guidelines as laws administered by the federal courts are changed or new laws are passed. The USSC also issues supplemental volumes. The latest edition of the guidelines was published in 2006 (Federal Sentencing Guidelines Manual, November 2006, http://www.ussc.gov/2006guid/gl2006.pdf).

At the core of the guidelines are offenses as defined by federal statutes. The USSC assigns an "offense level" to each offense, known as the "base offense level," which ranges from one to forty-three. The lowest actual offense for which the USSC has a level is trespass. Trespass is level four. First-degree murder has a base offense level of forty-three. Based on the circumstances associated with an offense, additional levels can be added or taken away until a particular offense has been assigned to the appropriate level. Judges and prosecutors use the levels to find the relevant sentence, in months of imprisonment, in the federal "sentencing table."

An illustration is provided for kidnapping, abduction, and unlawful restraint in Table 5.6. The table displays the USSC's guideline for this offense. The offense has a base offense level of thirty-two, but additional levels can be added. For example, if the victim sustained serious bodily injury, the level is increased by four, to thirty-six. If the victim was sexually exploited, the level is increased by six levels, to thirty-eight. If the victim was not released before seven days had passed, the level is increased by one, to thirty-three.

In the USSC's 2006 sentencing table, level twenty-eight, for example, points to six columns of sentence ranges indicating a minimum and a maximum sentence in each column. (See Table 5.7.) The first column, where the sentence range is seventy-eight to ninety-seven months, applies to offenders with no prior convictions or one prior conviction. The sixth column, where the sentence is 140 to 175 months, provides sentencing guidelines for offenders with thirteen or more prior convictions. A single level thus provides six different levels of confinement, and, within each level, a minimum and maximum number of months of imprisonment. This leaves judges with some discretion to determine sentencing.

TABLE 5.6

Federal sentencing guidelines on kidnapping, 2006

(a) Base offense level: 32

(b) Specific offense characteristics

    (1) If a ransom demand or a demand upon government was made, increase by 6 levels.

    (2) (A) If the victim sustained permanent or life-threatening bodily injury, increase by 4 levels;

        (B) if the victim sustained serious bodily injury, increase by 2 levels; or

        (C) if the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels.

    (3) If a dangerous weapon was used, increase by 2 levels.

    (4) (A) If the victim was not released before thirty days had elapsed, increase by 2 levels.

        (B) If the victim was not released before seven days had elapsed, increase by 1 level.

    (5) If the victim was sexually exploited, increase by 6 levels.

    (6) If the victim is a minor and, in exchange for money or other consideration, was placed in the care or custody of another person who had no legal right to such care or custody of the victim, increase by 3 levels.

    (7) If the victim was kidnapped, abducted, or unlawfully restrained during the commission of, or in connection with, another offense or escape therefrom; or if another offense was committed during the kidnapping, abduction, or unlawful restraint, increase to—

        (A) the offense level from the chapter two offense guideline applicable to that other offense if such offense guideline includes an adjustment for kidnapping, abduction, or unlawful restraint, or otherwise takes such conduct into account; or (B) 4 plus the offense level from the offense guideline applicable to that other offense, but in no event greater than level 43, in any other case, if the resulting offense level is greater than that determined above.

source: "§2A4.1. Kidnapping, Abduction, Unlawful Restraint," in 2006 Federal Sentencing Guidelines Manual, U.S. Sentencing Commission, November 1, 2006, http://www.ussc.gov/2006guid/2a4_1.html (accessed January 23, 2007)

Level twenty-eight falls into the sentencing table's Zone D. (See Table 5.7.) Individuals in this zone are not permitted to receive any probation and must serve at least the minimum sentence shown in the applicable column. A three-time offender would be sentenced to a minimum of eighty-seven months in prison and, under the USSC guidelines, could receive at most fifty-four days off per year for good behavior. Thus, this offender would serve at least 85% of the minimum sentence. If a case of kidnapping involved sexual exploitation, the offender would also be charged with criminal sexual abuse (a base offense level of twenty-four) or sexual abuse of a minor (level eighteen to twenty-four depending on whether the abuse was attempted or committed). Parole is not available in any of the guideline cases.

Property crimes are handled in the USSC guidelines in a similar manner. The base level is increased with the amount of property involved. For larceny, embezzlement, and other forms of theft, for instance, the base offense level is six in cases where the loss to the victim is $5,000 or less. If the loss is greater than $5,000 but less than $10,000, the level rises to eight and continues to rise as the amount of the loss rises. If the loss is more than $200,000 but less than $400,000, the level is eighteen. If the loss is greater than $100 million, the level is thirty-two—which will result in a mandatory sentence of at least ten years in prison for a first-time offender. A person who earned the maximum days for good behavior could expect to be out of incarceration in eight years and seven months if he or she received the minimum sentence. Fines and restitution of stolen money or property would also be required.

"Departures" from the Guidelines

"Departures" mean that the guidelines are applied to a majority but not to all persons charged with federal offenses—and they vary by category of offense. According to the USSC, in an analysis of cases decided between October 1, 2004, and January 11, 2005, 28.4% of offenders received departures below the guideline range and 0.7% received departures above the guideline range. (See Table 5.8.) All six offenders convicted of antitrust violations (100%) received sentences below the guideline range, while 12.5% of those convicted for manslaughter received sentences above the guideline range.

U.S. Supreme Court decisions in 2004 and 2005 modified sentencing guidelines. In 2004 the Supreme Court ruled in Blakely v. Washington that a state judge cannot impose a longer sentence when the basis for the enhanced sentence was not admitted by the subject or found by a jury. In the Blakely case the subject admitted to kidnapping his estranged wife. The maximum sentence for the crime was fifty-three months in prison, but the judge imposed a sentence of ninety months after determining that Blakely had acted with deliberate cruelty, a factor that allowed a longer sentence under existing statutes. However, the charge of deliberate cruelty had not been part of Blakely's plea, and it had not been determined by a jury. The Supreme Court found that the Sixth Amendment right to a trial by jury had thus been violated. The Blakely ruling means that only facts proved to a jury can justify an enhanced sentence.

The Supreme Court made a related ruling in January 2005 in United States v. Booker. In this case the subject had been charged with possession with intent to distribute fifty grams of crack cocaine, a crime for which the federal sentencing guidelines set a twenty-one-year, ten-month sentence. However, the judge later determined that Booker had possessed ninety-two grams of crack cocaine and had obstructed justice as well. Because of these additional offenses, the judge sentenced Booker to thirty years in prison. In language similar to the Blakely ruling, the U.S. Supreme Court ruled that federal judges cannot determine facts that are used to increase a defendant's punishment beyond what is authorized by a jury verdict or the defendant's own admissions. In its ruling the court struck down the mandatory application of sentencing guidelines, and instructed courts to apply reasonableness in determining sentences. Guidelines should be considered, but judges are not required to follow them. The legal impact of these two decisions continued to be worked out in the courts.

In its Final Report on the Impact of United States v. Booker on Federal Sentencing (March 2006, http://www.ussc.gov/booker_report/Booker_Report.pdf), the USSC found that most federal cases are sentenced according to the sentencing guidelines. "When within-range sentences and government-sponsored, below-range sentences are combined, the rate of sentencing in conformance with the sentencing guidelines is 85.9%," the USSC concluded. The report also concluded that the average sentence length since Booker has increased.

Experiencing a minor increase since Booker was the rate of government-sponsored, below-range sentences. These below-range sentences are permissible because of stipulations in the guidelines for so-called "departures" from the guidelines' provisions. Departures may be "upward" for cases where special circumstances merit longer incarceration than the maximum sentence in the guidelines; "downward" departures authorize shorter sentences than the minimum for extenuating circumstances or because the defendant provided "substantial assistance" to federal authorities, typically by helping with a broader investigation or providing testimony against other suspects.

According to the USSC in its Sourcebook of Federal Sentencing Statistics (2005, http://www.ussc.gov/ANNRPT/2005/table13_post.pdf), in 53,556 federal cases determined after the Booker decision (between January 12, 2005, and September 30, 2005), prisoners received an average sentence of 51.1 months. The highest average sentence was 228.4 months for murder, followed by 224.6 months for kidnapping/hostage taking, 100.4 months for national defense crimes, and 93.5 months for robbery. The shortest average sentences were 3.8 months for environmental/wildlife crimes, 5.1 months for gambling/lottery crimes, 5.5 months for food and drug crimes, and 7 months for simple drug possession.

STATE SENTENCES AND TIME SERVED

The adoption of truth-in-sentencing statutes appears to have resulted, at the state level, in a decrease in the length of sentences imposed but an increase in the total time served, including the percentage of the sentence imposed that is actually spent in prison.

Average sentence lengths can decline while time served stays the same or increases if mandatory time in prison, as a percentage of the sentence, increases. Thus, a person sentenced to five years serving 60% of his or her sentence serves as long as a person sentenced to four years who serves 75% of his or her sentence. In both cases time served will be three years. Table 5.9 shows average sentence lengths for those convicted of felony offenses in state courts during 2002.

"THREE STRIKES, YOU'RE OUT"

Nine years after passing the first truth-in-sentencing law, the state of Washington passed the first of the so-called "three-strikes" laws in December 1993. The measure took effect in the wake of a voter initiative, which passed by a three-to-one margin. Three-strikes laws are the functional equivalent of sentencing guidelines in that they mandate a fixed sentence length for repeat offenders for specified crimes or a mix of crimes—but their formulation in public debate, using the baseball analogy, is much easier to understand than the complexities of thick books of codes and sentencing tables. Under three-strikes laws, the offender receives a mandatory sentence upon conviction for the third offense—life imprisonment with-out parole (as in Washington State), twenty-five years without parole (as in California), or some variant of a long sentence. These laws are designed to remove the criminal from society for a long period of time or, in some instances, for life.

The Washington law identifies specific offenses that are "strikable." California, which passed its own (and more famous) three-strikes law just months after Washington passed its measure, specifies the categories of offenses that must precede the third felony conviction. The sentence of a convicted felon in California is doubled if his or her record has a prior serious or violent felony conviction. The convict receives a twenty-five-year-to-life sentence upon conviction of any third felony if the previous two convictions were for serious or violent felony offenses. All persons convicted under the California three-strikes law must serve 80% of their sentence before they are eligible for parole.

Tightening Preexisting Statutes

In all but one of the states with three-strikes statutes (Kansas is the exception), legislation was already on the books when the popularity of three-strikes laws led almost half the states—and the federal government—to enact laws pioneered on the West Coast. California, for instance, already had a law on its books that was very similar to those that passed later as three-strikes statutes in other states.

As reported by John Clark, James Austin, and D. Alan Henry in NIJ's "'Three Strikes and You're Out': A Review of State Legislation" (September 1997, http://www.ncjrs.gov/pdffiles/165369.pdf), even before its three-strikes law became effective, California required:

Life with no parole eligibility before 20 years for third violent felony conviction where separate prison terms were served for the first two convictions; life without parole for fourth violent felony conviction.

California's statute, therefore, represented a tightening and modification of existing law so that the triggering offense for life imprisonment was not the fourth but the third felony—which did not have to be violent.

Much the same pattern, with variations, characterized the introduction of three-strikes laws in other states. Prior to enacting a three-strikes law, Louisiana required a mandatory life term for the fourth felony conviction if two previous convictions had been violent or drug offenses. The state's new three-strikes law imposed the sentence after the third offense. In Tennessee the preexisting law required mandatory life without parole for the third violent felony conviction. Tennessee's new law imposed the same requirement for the second violent felony. Like Louisiana, Vermont replaced a "four-strikes" law with a three-strikes law. In some states the tightening was more stringent. In New Mexico the preexisting law imposed an increased sentence of one year for the second, four years for the third, and eight years for the fourth felony. The new law imposed a life sentence after the third violent felony but permitted parole after thirty years.

Opposition and Challenges to Three-Strikes Laws

Opponents of three-strikes laws charge that the laws unfairly target African-Americans, who are disproportionately represented among felony convicts. They also argue that three-strikes laws remove proportion and reasonableness from sentencing by making all third strikes punishable by the same prison sentence, whether it be stealing a small item or killing someone. Opponents also note that incarcerating more people for longer periods requires more prisons and increases corrections costs for maintaining prisoners. Reducing the possibility of parole results in an increasing number of elderly prisoners, who are statistically much less likely to commit crimes than younger prisoners, and who have increasing health-care needs. Finally, some critics of the laws suggest that the finality of three-strikes laws may make active criminals more desperate and thus, more violent. According to this view, if criminals know they will be sentenced to life in prison, then they have nothing to lose and might be more likely to kill witnesses or to resist arrest through violent means.

On April 1, 2002, the United States Supreme Court agreed to consider whether California's three-strikes law, considered to be one of the toughest in the country, violates the Eighth Amendment's ban against cruel and unusual punishment. More than half of California prisoners sentenced under the three-strikes law were convicted of nonviolent third-strike felonies, including drug possession and petty theft, and are serving mandatory sentences of twenty-five years to life without the possibility of parole. In Lock-yer v. Andrade (538, U.S. 63 [2003]), the Supreme Court considered the case of Leandro Andrade, an inmate serving two consecutive twenty-five-year sentences in California for stealing videotapes valued at $150 from two different video stores. Because each theft counted as an offense and Andrade had two prior convictions, the new crimes counted as his third and fourth strikes for purposes of sentencing. In March 2003 the Supreme Court, in a five-four decision, upheld the sentence imposed on Andrade and thereby upheld the right of states to impose lengthy sentences on repeat felony offenders, regardless of the relative seriousness of the third-strike felony.

Impact and Effectiveness of Three-Strikes Laws

Vincent Schiraldi, Jason Colburn, and Eric Lotke reported in An Examination of the Impact of 3-Strike Laws 10 Years after Their Enactment (Justice Policy Institute, September 23, 2004, http://www.justicepolicy.org/downloads/JPIOUTOFSTEPREPORTFNL.doc) that twenty-two states followed California's lead by passing three-strikes laws.

According to Schiraldi, Colburn, and Lotke, the three-strikes laws have had little impact on state prison populations since they were enacted, except for California, Florida, and Georgia. Of the twenty-one three-strikes states (out of twenty-three) on which data on the number of people incarcerated were available, fourteen had incarcerated fewer than one hundred people under three strikes. Only three states had more than four hundred people imprisoned under three strikes: California (42,322 inmates), Georgia (7,631), and Florida (1,628). Altogether, the twenty-one states with available imprisonment data had a total population of 112 million and 10,624 people in prison under three strikes.

Schiraldi, Colburn, and Lotke also report that between 1993 and 2002, states with three-strikes laws experienced only a slightly greater decline in serious crime rates (26.8%) than states without three-strikes laws (22.3%).

California is unique because it is the only state in which a three-strikes sentence can be imposed for any felony offense. Schiraldi, Colburn, and Lotke point to California Department of Corrections data indicating that almost two-thirds (65%) of those sentenced under the state's three-strikes laws are incarcerated for nonviolent offenses. California experienced a 38.8% drop in serious crime rates between 1993 and 2002. However, New York, a large state without three-strikes laws, had a 49.6% decrease in serious crimes during this period. It is possible that the improved job market in each state, as opposed to specific criminal justice policies, was responsible for the decline in serious crime rates. While crime rates were dropping, unemployment rates declined by 35% in California and 24% in New York between 1994 and 2002. The national decrease during this period was 9%.

The three-strikes laws in Florida and Georgia apply only to people convicted of violent offenses. These states experienced a smaller decline in violent crime rates than neighboring Alabama, which does not have a three-strikes law.

Since 2000 several states have loosened their mandatory minimum sentencing laws or taken other measures to reduce their prison populations. For example, in 2001 Mississippi adopted an early-release provision for nonviolent offenders, and states such as California, Texas, North Carolina, Connecticut, Idaho, and Arkansas have passed legislation mandating the diversion of nonviolent drug offenders to community-based treatment programs.

ALTERNATIVE SENTENCING

Forms of sentencing other than probation, prison, or a combination of the two (split sentences) are widely used in virtually every state. The Institute of Public Policy at the Truman School of Public Affairs, University of Missouri, reported in Alternative Sentencing & Strategies for Successful Prisoner Reentry (June 30, 2006, http://www.mosac.mo.gov/Documents/alternative-sentencing.pdf) that sometimes, the best way to prevent an offender from re-offending is not through a traditional sentence (for example, a prison term or probation and parole). In certain cases it is better—for the offenders and for society—to impose alternative sentences that provide job skills, drug and alcohol counseling, and other rehabilitation-focused interventions. Alternative sentencing usually involves life skills training, job skills training, and/or offender rehabilitation through drug counseling and alcohol counseling.

State departments of correction, the District of Columbia, and the Federal Bureau of Prisons offer a range of alternative sentencing options for criminal offenders. Although programs can vary among regions, those options include work-release and weekend sentencing, shock incarceration (sometimes called boot camp), community service programs, day fines, day reporting centers, electronic monitoring and house arrest, residential community corrections, and diversionary treatment programs. Other types of alternative sentencing options, such as mediation and restitution, are sometimes available (see below).

Oregon has one of the most successful and comprehensive alternative sentencing systems. As reported by the Institute of Public Policy in Alternative Sentencing & Strategies for Successful Prisoner Reentry, the state's model has six parts:

1. Criminal Risk Factor Assessment and Case Planning. Every inmate received by the Department of Corrections is assessed and a plan is developed for that individual to help him through prison and guide a successful reentry back into the community.
2. Staff/Inmate Interactions. This step in the process acknowledges that prison staff interaction with inmates can shape positive behavior. Prison staff are encouraged to offer positive feedback to inmates and provide incentives for good behavior.
3. Work and Programs. Part of the plan each prisoner receives upon prison entry includes prison programs that would best mitigate the risks that inmate may be subject to. Most prisoners also have jobs and responsibilities in the prison.
4. Children and Families. This program seeks to work with the children of inmates in an attempt to break the cycle of family incarceration (children of the incarcerated are 7 times more likely to end up in prison than the rest of the population.)
5. Reentry. Oregon has 7 facilities physically located in areas most likely to receive the inmates upon exit from prison. This allows relatively easy access for the prisoner to partially reenter the community. These facilities also are specifically focused on reentry and assist the inmate with housing, jobs, and other things he may need to make the transition into society.
6. Community Supervision and Programs. The Department of Corrections works intimately with the community based programs including the faith based community, other government agencies, and nonprofits to offer technical assistance and resources in order to support their work. The goal of the Department of Corrections between steps 5 and 6 is to offer a seamless transition for offenders so that they have the best chance possible to become productive citizens.

In "The Effectiveness of Community-Based Sanctions in Reducing Recidivism" (Corrections Today, February 2003, http://www.aca.org/publications/ctarchivespdf/feb03/martin.pdf), Ginger Martin surveyed recidivism rate data for alternative forms of sentencing in Oregon. (Recidivism is relapse into criminal behavior.) The study included 13,219 prisoners released from January 1999 to December 2001. Martin found that community service programs, work release, and electronic monitoring were cheaper than incarceration, and, when these methods were used, levels of recidivism declined after twelve months. The addition of a treatment component, such as a drug treatment program, to the community-based option produced a further 10% reduction in recidivism.

Mediation and Restitution

Mediation began in Canada in 1974 and was later adopted in the United States, where more than twenty states were using mediation by the beginning of the twenty-first century. In mediation the victim and the offender meet under the auspices of a community worker and work out a "reconciliation," usually involving some type of restitution and requiring offenders to take responsibility for their actions. This technique is used mainly for minor crimes and often involves private organizations; therefore, the judiciary does not always accept its resolution. Most often restitution is not considered the complete punishment but part of a broader punishment, such as probation or working off the restitution dollar amount while in prison.

Work Release and Weekend Sentencing

Work-release programs permit selected prisoners nearing the end of their terms to work in the community and return to prison facilities or community residential facilities during nonworking hours. Such programs are designed to prepare inmates to return to the community in a relatively controlled environment while they are learning how to work productively. Work release also allows inmates to earn income, reimburse the state for part of their confinement costs, build up savings for their eventual full release, and acquire more positive living habits. Those on weekend sentencing programs spend certain days in prison, usually weekends, but are free the remainder of the time. Both of these types of sentences are known as "intermittent incarceration." Violent offenders and those convicted of drug offenses are usually excluded from such programs by the courts.

Work-release programs seem to help prisoners once they return to society. In the study Baltimore Prisoners' Experiences Returning Home (Urban Institute, March 2004, http://www.urban.org/UploadedPDF/310946_BaltimorePrisoners.pdf), Christy Visher et al. found that "those who found jobs after release were more likely to have participated in work release jobs while incarcerated than those who did not find jobs." Nancy G. LaVigne et al. in a related Urban Institute publication, Chicago Prisoners' Experiences Returning Home (December 2004, http://www.urban.org/UploadedPDF/311115_ChicagoPrisoners. pdf), found similar benefits from work release participation.

Shock Incarceration (Boot Camps)

Shock incarceration is another name for reformatories or "boot camps" that use military discipline for juveniles and adults. The name comes from former British Home Secretary William Whitelaw, who called for a "short, sharp shock" that would end teenagers' criminal careers. Boot camps established in Great Britain attracted youths who liked the challenge. Robert Winnett reported in the Sunday Times that, according to the British government, boot camps are effective ("Crime Record Shows Boot Camps Work," June 12, 2005, http://www.timesonline.co.uk/tol/news/uk/article532517.ece). Statistics showed that the reconviction rate of offenders who attended a particularly regimented institution, the Thorn Cross boot camp in Cheshire, England, was considerably lower than average for similar institutions.

According to Alexander W. Pisciotta in Benevolent Repression (1994), the prototype of such a facility in the United States was established at the Elmira Reformatory in New York as far back as 1876. The first modern, correctional boot camp was established in Georgia in 1983. Faced with unprecedented overcrowding in its prisons and jails, Georgia was looking for alternatives to incarceration for adult offenders. Oklahoma began its program in 1984 and, by the end of 1988, fifteen programs were operating in nine states. The majority of programs started in the 1990s. By 1998, thirty-three correctional agencies (state and federal) operated forty-nine camps for adult inmates. Sentences are usually short (three to five months).

Many adult boot camps claim to offer programs aimed at offender rehabilitation. Typically, boot camp programs include physical training and regular drill-type exercise, housekeeping and maintenance of the facility, and often hard labor. Some programs include vocational, educational, or treatment programs. Drug and alcohol counseling, reality therapy, relaxation therapy, individual counseling, and recreation therapy are often incorporated into such programs. Because some offenders in boot camps have drug problems, many programs devote time to drug treatment each week. Programs closely regulate dress, talking, movement, eating, hygiene, and other behaviors. Obedience to rules reinforces submission to authority and forces the prisoners to handle a challenge that is both tedious and demanding.

Boot camps are intended to be both punitive in their rigid discipline and rehabilitative by enhancing self-esteem upon successful completion of the program. Shock incarceration is intended to motivate prisoners, teach respect for themselves and others, and break destructive cycles of behavior. Virtually all of these programs are based on the assumption that a military regimen is beneficial.

The major selling points for boot camps have been cost savings and reductions in prison crowding. However, the major reason boot camps appear to cost less and be less crowded is that their programs last less time than traditional sentences. In addition, studies of boot camps have indicated that the facilities have not had a major effect on recidivism.

Community Service Programs

Begun in the United States in Alameda County, California, in 1966 as a penalty for traffic offenses, community service has spread throughout the United States. The penalty is most often a supplement to other penalties and mainly given to "white-collar" criminals, juvenile delinquents, and those who commit nonserious crimes. Offenders are usually required to work for government or private nonprofit agencies cleaning parks, collecting roadside trash, setting up chairs for community events, community painting projects, and helping out at nursing homes.

The BJS in State Court Organization 1998 (David B. Rottman et al., June 2000, http://www.ojp.usdoj.gov/bjs/pub/pdf/sco98.pdf) labeled community service "an exception to unconstitutional servitude," indirectly referring to the thirteenth amendment to the Constitution, which states, in Section 1: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." By exempting the involuntary servitude of convicted criminals, the Constitution makes both community service and chain gangs possible.

Day Fines

Under the day fines type of alternative sentence, the offender pays a monetary sum rather than spending time in jail or prison. Most judges assess fixed, flat-fee fines sparingly. The fees are tied to the seriousness of the crimes and the criminal records of the offenders, and they bear no relationship to the offender's wealth. As a result, judges often think the fixed fines are too lenient for wealthy offenders and too harsh for poor ones.

When setting a day fine, the judge first determines how much punishment an offender deserves. For example, a judge decides that the gravity of the offense is worth 15, 60, or 120 punishment units, without regard to income. The value of each unit is set at a percentage of the offender's daily income, and the total fine amount is determined by simple multiplication. The fine is paid into the jurisdiction's treasury. Day fines are also used in Europe.

Day Reporting Centers

Day reporting centers (DRCs) were developed in Great Britain and first instituted in the United States during the 1980s. These programs allow offenders to reside in the community. Paige M. Harrison and Allen J. Beck report in the BJS's Prison and Jail Inmates at Midyear 2005 (May 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim05.pdf) that 4,747 DRCs were operating in the United States by the middle of 2005.

According to Patrick Hyde in "Day Reporting Eases Jail Overcrowding" (American City and County, September 1, 2006, http://www.bi.com/content.php?section=news&page=news&detail=09212006), "through treatment and training, the centers provide an intermediate sanction for, and reduce recidivism by, low-risk offenders." Designed for persons on pretrial release, probation, or parole, DRCs are mostly populated by people with drug and alcohol problems and require offenders to appear on a frequent and regular basis to participate in services or activities provided by the center or other community agencies. Random drug screening and breathalyzers are used at the centers. According to Hyde, in addition to providing employment and educational training, the centers conduct classes in such things as anger management, substance abuse, life skills, and cognitive skills. Failure to adhere to program requirements or to report at stated intervals can lead to commitment to prison or jail. DRC participation can also be terminated if the offender is charged with a new crime.

DRCs monitor offenders on the road to rehabilitation. They are also intended to relieve jail or prison overcrowding. Offenders often move from higher to lower levels of control at DRCs based on their progress in treatment and compliance with supervisory guidelines. Many programs last 90 or 180 days. DRCs do not generally exclude serious offenders, although many programs include only nonserious drug- and alcohol-using offenders. Some DRCs require offenders to perform community service; the level and type of community service varies by jurisdiction.

Intensive Probation Supervision

Intensive Probation Supervision (IPS) is another method of closely supervising offenders while they reside in the community. Increasingly, offenders who have been convicted of felonies (rather than misdemeanors) are being sentenced to probation. Routine probation, however, is not designed or structured to handle high-risk probationers. Therefore, IPS was developed as an alternative that is stricter than routine probation.

Caseloads of officers assigned to IPS offenders are kept low. In typical programs, the offender must contact a supervising officer frequently, pay restitution to victims, participate in community service, have and keep a job, and, if appropriate, undergo random and unannounced drug testing. Offenders are often required to pay a probation fee.

House Arrest and Electronic Monitoring Program

Some nonviolent offenders are sentenced to house arrest (or home confinement), which means that they are legally required to remain confined in their own homes. They are allowed to leave only for medical purposes or to go to work, although some curfew programs permit offenders to work during the day and have a specified number of hours of free time before returning home. The idea began as a way to keep drunk drivers off the street, but it quickly expanded to include other nonviolent offenders.

The most severe type of house arrest is home incarceration, where the offender's home actually becomes a prison that he or she cannot leave except for very special reasons, such as medical emergencies. Home-detention programs require the offender to be at home when he or she is not working. Some offenders are required to perform a certain number of hours of community service and, if they are employed, to repay the cost of probation and/or restitution.

An electronic monitoring program (EMP), used in tandem with house arrest, involves attaching a small radio transmitter to the offender in a nonremovable bracelet or anklet. Some systems send a signal to a small monitoring box, which is programmed to call a Department of Corrections computer if the signal is broken; other systems randomly call probationers and the computer verifies the prisoner's identity through voice recognition software. In some cases, a special device in the electronic monitor sends a confirmation to the computer. Some systems have global positioning system (GPS) technologies, which use satellites to locate offenders, to help corrections officers ensure that offenders are not violating any territorial restrictions.

EMPs are often used to monitor the whereabouts of those under house arrest and permitted to be only at home or at work. Electronic monitoring is sometimes used to ensure that child molesters stay a specified distance from schools. EMPs cost much less than building new prison cells or housing more inmates. However, close supervision by officers is crucial to the success of any home confinement or electronic monitoring. Officers must ensure that the participants are indeed working when they leave the house and that they are not using illegal drugs. Electronic monitoring equipment must also be checked periodically to determine whether the offender has attempted to disable the equipment.

Residential Community Corrections

Residential community corrections facilities are known less formally as "halfway houses," because they are designed to help prisoners reintegrate into community life. Some offenders are sentenced to halfway houses directly in lieu of incarceration if their offenses and general profile indicate that they will benefit from the structure and counseling available in such facilities. Many states frequently use halfway houses to relieve prison overcrowding.

Residential programs house offenders in a structured environment. Offenders work full time, maintain the residence center, perform community service, and sometimes attend educational or counseling programs. They may leave the centers only for work or approved programs such as substance-abuse treatment. One type of residential program, called the restitution center, allows offenders to work to pay restitution and child support. The centers regularly test the residents for drugs.

Diversionary Treatment Programs

Probation combined with mandatory treatment programs is used as an alternative sentence for nonviolent offenders convicted of drug offenses, alcohol abuse, or sex offenses. Sentenced individuals are free on probation but typically are required to attend group therapy and supervised professional treatment sessions.

THE FEAR OF CRIME

The fear of becoming a victim of crime can undermine community relationships. People may withdraw physically and emotionally, losing contact with their neighbors and weakening the social fabric of their lives and communities. The 2006 Gallup Poll "Americans' Crime Worries" found that 20% of those surveyed frequently or occasionally worried about being murdered, 33% worried about being mugged, 50% worried about their home being burglarized while they were not there, 21% worried about being sexually assaulted, 47% worried about having their car broken into, 40% worried about having a school-aged child physically harmed while attending school, and 44% worried about being a victim of terrorism.

More Crime or Less Crime Today?

Another Gallup Poll reported that 68% of Americans thought there was more crime in the United States in 2006 than in 2005. (See Table 5.10.) This percentage has risen significantly since 2000, when 47% of those surveyed thought that there was more crime in the nation than in the previous year. However, a smaller proportion of people in 2006 thought that the country's crime level has increased over the last year than in 1992, when 89% of those surveyed had this opinion.

Some 51% of respondents in the Gallup Poll said that they believed there was more crime in their area (that is, within a mile of their home) in 2006 than a year earlier. This is the same percentage that believed their neighborhoods were experiencing increased crime in 1972. However, this level is higher than the 26% with this opinion in 2001 and lower than the 54% in 1992 who reported an increase in crime in their area. (See Table 5.11.)

Feeling Afraid

In a 2006 Gallup Poll, 37% of those surveyed said that they would be afraid to walk alone at night in their own area. This percentage has remained relatively stable since 1965, when 34% of survey respondents said that they would be afraid to walk alone at night in their own neighborhoods. (See Table 5.12.)

When asked if they engaged in certain protective behaviors because of concern over crime, 47% of Gallup Poll respondents in 2005 reported avoiding going to certain places or neighborhoods, 31% kept a dog for protection, 29% had a burglar alarm, and 23% reported buying a gun for protection. (See Table 5.13.)

THE DEATH PENALTY

The death penalty is in place in thirty-seven states and is seen by some as a deterrent to committing crime. The 2006 Gallup study Death Penalty found that although a majority of Americans (67%) favored the death penalty for people convicted of murder, the percentage of those supporting the death penalty had decreased from a high of 80% in 1994. (See Table 5.14.) According to the same poll, 60% believed the death penalty was applied fairly, an increase from 51% in 2000.

Almost half (47%) of survey respondents thought that the death penalty is a better penalty for murder than life imprisonment; a similar percentage (48%) believed that life imprisonment is better than a death sentence. About one-fifth (21%) said that the death penalty is imposed too often; 25% thought that it is imposed about the right amount and 51% believed that it is not imposed frequently enough. Although many believed that the death penalty is not imposed frequently enough, most (63%) respondents said they believed that a person has been executed under the death penalty even though this individual was innocent of the crime with which he or she was charged.

CONFIDENCE IN THE CRIMINAL JUSTICE SYSTEM

Each year the Gallup Organization asks the American people about their confidence in society's major institutions. Gallup reports in Confidence in Institutions that, of those polled in 2006, one-quarter (25%) had "a great deal" or "quite a lot" of confidence in the criminal justice system (see Figure 5.1), and, in the same poll, 43% reported at least some confidence. Almost one-third (31%) of respondents said they had little or no confidence in the criminal justice system. Of the institutions considered by poll respondents, the criminal justice system ranked above organized labor, the U.S. Congress, big business, and health maintenance organizations (HMOs), but inspired less confidence than the military, the police, organized religion, banks, the media, and public education, among others.

CONFIDENCE IN THE POLICE

In Gallup's 2006 Confidence in Institutions, Americans expressed much more confidence in the police than they did in the criminal justice system. Fifty-eight percent stated they had a great deal or quite a lot of confidence in the police (see Figure 5.1), and 29% said they had some confidence. Only 12% claimed to have little or no confidence in the police.

A 2005 Gallup Poll found that the percentage of people expressing confidence in local police in 2005, 53%, had decreased from 2004, when the level was 61%, and from 1999, when 70% had confidence in local police. (See Table 5.15.) Half of the men surveyed (50%) expressed confidence in local police, compared with 56% of women. Whites were most likely (57%) to express confidence in local police; only 40% of non-whites and 32% of African-Americans had confidence. Those aged sixty-five and older had the highest confidence levels in the police, with 72% reporting favorable opinions, compared with just 43% of those aged eighteen to twenty-nine.