Members of the 

U.S. Advisory Commission 

on Intergovernmental Relations 

(May 1993) 

Private Citizens 

Daniel J. Elazar, Philadelphia, Pennsylvania 

Robert B. Hawkins, Jr., Chairman, San Francisco, California 

Mary Ellen Joyce, Arlington, Virginia 

Members of the U.S. Senate 

Daniel K. Akaka, Hawaii 

Byron L. Dorgan, North Dakota 

Dave Durenberger, Minnesota 

Members of the U.S. House of Representatives 

Donald M. Payne, New Jersey 

Craig Thomas, Wyoming 

Vacancy 

Officers of the Executive Branch, U.S. Government 

Vacancy 

Vacancy 

Vacancy 

Governors 

Vacancy 

Vacancy 

Vacancy 

Vacancy 

Mayors 

Victor H. Ashe, Knoxville, Tennessee 

Robert M. Isaac, Colorado Springs, Colorado 

Edward G. Rendell, Philadelphia, Pennsylvania 

Bruce Todd, Austin, Texas 

Members of State Legislatures 

Paul Bud Burke, President, Kansas Senate 

Samuel B. Nunez, Jr., President, Louisiana Senate 

Vacancy 

Elected County Officials 

Ann Klinger, Merced County, California, Board of Supervisors 

Barbara Sheen Todd, Pinellas County, Florida, 

Board of Commissioners 

Vacancy 


U.S. Advisory Commission on 

Intergovernmental Relations 

800 K Street, NW 

South Building 

Suite 450 

Washington, DC 20575 

(202) 653-5640 

FAX (202) 653-5429 

U.S. Advisory Commission on Intergovernmental Relations ill 
iv US. Advisory Commission on Intergovernmental Relations 
EXECUTIVE SUMMARY 

In this report, The Role of Generul Government Elecicd 

Oficiah in Criminal Justice, the U.S. Advisory Commission 

on Intergovernmental Relations (ACIR) examines the intergovernmental, policy, funding, and management issues fachg general government elected officials in dealing with the 

effects of explosive growth in the criminal justice system. 

Criminal justice is a growing fiscal problem for municipal, county, state, and federal governments, costing 

over $70 billion a year. From the mid-1970s to the early 

lWs, criminal justice expenditures rose faster than any 

other area of state and local government spending. Bctween 1973 and 1990, state own-source spending on criminal justice increased 759 percent (prison growth. increased 

state assistance to local governments, and merger of local 

courts into many state systems); county, 490 percent (jails, 

court costs, and crime prevention); municipal, 330 percent 

(police and crime prevention); and federal, 345 percent 

(more than 3,000 crimes being tried as fcdcral offenses 

and longer prison sentences). 

Spending on criminal justice has been driven more by 

increases in prosecution and prison sentencing than by 

increases in reported crime and arrests. Between 1973 

and 1989, the number of people in prison grew by 233.4 

percent. Increased arrests (stemming from population 

growth, more reported crime, and stronger law cnforccment) accounted for about one-third of the growth. The rest 

resulted from court-related decisions and corrcctional policies, as well as increased revocation of parole and probation. 

Law enforcement officers, courts, and corrections of. 

ficials cannot, by themselves, reduce crime significantly. 

Crime prevention programs that address economic and 

social needs, and policies and incentives that cmpowcr citizens to reestablish effective community institutions and 

civic order also are essential. Only general government 

elected officials have the authority to reach across public 

agencies and programs-such as health departments, 

school boards, and housing authoritics-and focus them 

on crime prevention. 

Local, state, and federal chief executives and lawmakers play critical roles in determining the outcomes and effectiveness of the criminal justice system and crime prevention. Legislators enact laws that define crimes and 

prescribe punishments. Executive officials any out or oversee law enforcement. Chief elected officials also have the 

power of the budget, appointment powers over agency 

heads, authority to legislate policy, and access to the public to 

build citizen support for prevention. 

Criminal justice responsibilities are dispersed 

among many different municipal, county, state, and federal agencies and authorities that police, adjudicate 

charges, and administer correctional programs. One 

common element is the independence of key officials, 

such as judges, prosecutors, sheriffs, clerks of court, and 

coroners. State and local governments are the primary actors. State-local criminal justice systems prosecute 94 percent of all serious crimes (felonies); county jails hold most 

persons detained on state or federal felony charges; state 

prisons hold 92 percent of the total prison population; and 

state and local governments spend 87.4 percent of all 

criminal justice funds. The federal government’s inlluencc, however, has been expanding, while its state-local 

criminal justice assistance dropped from 27 percent of total fedcral justice spending in 1973 to 7 percent in 1990. 

In 1990,36.5 percent of criminal justice expenditures 

were funded by the states (60 percent for state prisons and 

community corrections); 29.0 percent by municipalities (80 

percent for policing); 20.9 percent by counties (policing, 

court functions, and corrections about evenly); and 13.5 

percent by the federal government. 

Rapid growth in the criminal justice system has significantly affected the responsibilities, workloads, and 

financial demands on different parts of the system, 

creating more intergovernmental tensions. Since 1973, 

all governments have experienced extraordinary prcssure to fund criminal justice services. Tension is espccially evident when sufficient intergovernmental assistance is not forthcoming or when other governments do 

not meet their traditional responsibilities (e.g., a local 

U.S. Advisory Commission on Intergovernmental Relations v 
jail backlogged with felons awaiting transfcr into ovcrcrowded state prisons). 

Three out of four convicted offenders are on probation or parole. These services are supported by only 11 

percent of state and county correctional spcnding. Significant variations exist among the states in the use of imprisonment and community sentences. Policy considcrations 

vary in deciding what proportion of a state's prison inmates can be placed more cheaply and equally effcctivcly 

in nonprison correctional programs and/or serve rcduccd 

sentences. For states that must relieve prison ovcrcrowding, the experience of those using early release, shorter 

sentences, and community correctional supervision and 

programs for all but the most serious offcnders indicatcs 

that a 10 to 15 percent reduction is possible without any' 

appreciable increase in criminal activity. 

Policies seldom link government agencies to address 

literacy, job training, probation supervision, substance 

abuse, mental illness, housing, and other services needed 

to phase offenders back into the community. Approximately 60 percent of prison inmates arc school dropouts; 

over half admit they were under the influcncc of alcohol 

or drugs at the time of their crime; and in 1986, less than 40 

percent earned more than $10,000 in the year before their 

arrest. The responsibility for providing cducation, human 

services, employment, and criminal justice programs is 

dispersed among municipal, county, and state govcrnments, and independent school districts. Inmates and juveniles who start programs in correctional institutions often cannot continue outside because agencics resist taking 

offenders, programs are not coordinated, and/or no room 

is available. Local governments resist community corrcctions programs if there is no state funding. Citizcns also 

resist having offenders in their community. 

The need for coordination of criminal justice activities far outstrips efforts to promote coordination. Divcrse 

authority complicates coordination and obscurcs rcsponsibility. Multiple types of coordination arc ncedcd to mcet 

different needs. For example, a municipal policc agcncy 

may need to coordinate with other municipalitics, the 

county sheriff, state police, and/or fcdcral agencics to cnhance enforcement capability; with the county prosecutor, 

forensiclaboratory, jail intake, and the court for more efficient procedures; and with the housing authority, codc cnforcement agents, schools, juvenile court, and the rccreation department for prevention initiatives. Coordination 

also has been undercut by competition for limitcd funds. 

Successful efforts typically involve a forum for dcbatc and 

consensus building among policymakers, as wcll as a 

mechanism for operational collaboration. 

Based on the findings of the study, the Commission 

H State legislatures and the Congress should 

reexamine their criminal justice systems to rectLfy 

imbalances among law enforcement, adjudication, 

and corrections capabilities. Federal or state 

mandates should be enacted only after thorough 

systemwide impact analyses have been prepared. 

Special attention should be given to prevention, 

policing, adjudication, jails, corrections, improved management, intergovernmental funding, and constitutional balance. 

The chief elected officials of general government 

should (1) insist on being informed about the basic characteristics, interrelationships, and current 

facts of the criminal justice system with which 

they interact; (2) hold criminal justice officials accountable for supporting improved system performance by using budget leverage; and (3) engage the other key actors in the system and the 

public in exploring policy options that take into 

account a systemwide perspective. 

Elected officials should support the development 

and use of decision-support and management information systems, the development of performance indicators for key activities, and the collection of the required data for (1) forecasting 

personnel and facilities needs; (2) analyzing the 

budgetary impacts of mandates; and (3) improving 

the efficiency and effectiveness of crime investigations, court case management, and correctional classification and supervision. 

State and local elected officials should establish 

and participate in criminal justice coordinating 

bodies and should support such bodies where 

they exist (e.g., criminal justice budget review 

committees, jail or prison planning task forces, 

community corrections boards, and juvenile justice coordinating councils). The councils should 

coordinate general government and criminal justice goals, help realize intergovernmental and interagency operating efficiencies, help balance the 

system, and help build community consensus on 

criminal justice. State and/or local criminal justice commissions are needed and should include 

adequate attention to community corrections. 

Criminal justice is and should remain largely a 

state and local responsibility. A federally mandated structure for state or local coordination 

should be avoided. 

recommends: 

m 

H 

vi US. Advisory Commission on Intergovernmental Relations 
PREFACE 

This report is based on the premise that, even if prcvention could cut crime rates in half, taxpayers still arc cntitled to efficient, effective, and responsivc govcrnmcnt 

services. Criminal justice functions are no exception. The 

report reflects four major elerncnts of legislative and ex- ecutive action: 

The magnitude of the criminal justice challcngc; 

Determining the criminal justice responsc to crime; 

Holding agencies accountable and supporting program needs; and 

rn 

rn 

rn 

rn Governing the non-system. 

The report focuses on the functioning of the criminal 

justice system. It emphasizes the dynamics of criminal justice decisionmaking-its sources of conflict, constitutional restraints, system impacts, and the potential for Icadcrship. Prevention is addressed only as it is carricd out by 

criminal justice programs. Politically intense issues-such as 

capital punishment-and legal procedures that affect individual cases but not the system are omitted. Instead, thc report focuses on concerns that have major cost impacts 

across agencies, between governments, and over time. 

For example, corrections has been the fastest growing 

area of spending. The report, therefore, focuscs morc on 

that growth than on increasing arrests without followthrough. It emphasizes ramifications on urban countics, 

cities, and states from the high crime rate in citics, which is 

more than twice the rate in suburban counties and four 

times that in rural counties. Finally, given that the fcdcral 

government funds only 13 percent of total expcnditurcs 

on criminal justice and prosecutes only 6 pcrccnt of scrious crime, this report does not focus on thc structurc of thc 

federal criminal justice system. However, it docs give considerable attention to concerns about the influcncc of federal policies on state and local criminal justice systems and 

on initiatives to try more criminal cases in federal courts. 

The report reflects the concerns and perspectives of 

more than 100 lawmakers, chief executives, and criminal 

justice officials who were interviewed for this project. It 

brings current research, landmark studies, and examples 

of successful programs together in one place. It also provides valuable original analyses that provide a good overview of the intergovernmental, interagency, and interbranch dynamics of the criminal justice system. This 

overview allows all officials to better understand how their 

initiatives and/or burdens are affected by the policies of 

many different officials and governments. 

The assumption is that if policy decisions can be approached through a collegial process of determining the 

facts, agreeing on the need, and resolving accountability, 

general government elected officials will be in the position 

to use their unique access to the public and the private sector; their authority over treatment, employment, and education programs; and their contacts with other elected officials to build understanding and support for change. The 

goal of this report is to support the essential leadership role 

of general government elected officials. 

Frustration with escalating costs and lack of effectivencss in the criminal justice system led the National Association of Counties, joined by the National Governors’ As- sociation, National Conference of State Legislatures, the 

U.S. Conference of Mayors, and the National League of 

Cities, to support the U.S. Advisory Commission on Intergovernmental Relations in working with the U.S. Department of Justice to fund a study designed to both inform general government elected officials about the criminal justice 

systcm and to critique their role in it. 

Robert B. Hawkins, Jr. 

Chairman 

U.S. Advisory Commission on Intergovernmental Relations vil 
viii U.S. Advisory Commission on Intergovernmental Relations 
ACKNOWLEDGMENTS 

This report is part of a project on the role of clcctcd officials 

in the criminal justice system. The project director and author of the report is Vivian E. Watts, a former Viginia legislator and Secretary of Public Safety. 

The report is accompanied by a Guide to the Criminal 

Justice System for General Government Elected Oficials. 

ACIR commends the dedication of the following individuals in helping launch these studies: Donald Murray of 

the National Association of Counties, Nolan Joncs of the 

National Governors’ Association, Jon Felde of the National 

Conference of State Legislatures, Patrick V Murphy of the 

U.S. Conference of Mayors’ Police Policy Board, and Edwin 

W. Zedlewski of the U.S. Justice Department’s National Institute of Justice. 

The Commission wishes to thank staff members and individuals who participated in interviews and focus group dis- cussions from the following associations: 

American Bar Association, Council of Chicf Judges 

American Correctional Association 

International Association of Chiefs of Police 

International City/County Management Association 

Large Urban Areas Probation Chiefs 

National Association of Attorneys General 

National Association of Counties 

National Association of Criminal Justice Planners 

National Center for State Courts, 

Institute for Court Management 

National Committee on Community Corrections 

National Conference of State Legislatures 

National District Attorneys Association 

National Governors’ Association 

National Institute of Municipal Law Officers 

National Juvenile Detention Association 

National League of Cities 

National Legal Aid and Defender Association 

National Sheriffs Association 

U.S. Conference of Mayors 

Virginia Network of Victims and Witnesses of Crime 

Thanks go also to the following individuals who offered advice and suggestions for the project at thinkcrs’ 

and/or critics’ sessions: 

Julio Barreto, h, National League of Cities 

Fred Beckec Bureau of Justice Assistance, U.S. DeJames Blume, U.S. General Accounting Office 

Mary Brodrick, National Legal Aid and Defenders AsWarren I. Cikins, The Brookings Institution 

Osa Cofiq, Virginia Department of Correctional 

Alvin W Cohn, National Institute of Corrections, U.S. 

William G. Colman, consultant, Potomac, Maryland 

Helen Corrothers, U.S. Sentencing Commission 

Mark A. Cunniff; National Association of Criminal 

Justice Planners 

Roberta Dom, Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice 

Thomas Henderson, National Center for State Courts 

D. Alan Henry, Pretrial Services Resource Center 

Sally I: Hillsman, Vera Institute of Justice 

Gwen Holden, National Criminal Justice Association 

Joan E. Jacoby, Jefferson Institute for Justice Studies 

CharlesKehoe, Virginia Department of Youth Services 

Kay Kizapp, Institute for Rational Public Policy 

Roberta Lesh, International City/County ManageWilliam Lucas, Office of Liaison Services, U.S. DeCharles B. Meek, National Sheriffs’ Association 

Norval Morris, University of Chicago Law School 

Pat Mysza, National Legal Aid and Defenders AssoLaurie Robinson, American Bar Association 

Thomas Rametta, Metropolitan Washington Council 

Daniel Rosenblatf, International Association of Chiefs 

Mary K. Shilton, National Association of Criminal JusJames Swain, Bureau of Justice Assistance, U.S. Department of Justice 

sociation 

Education 

Department of Justice 

ment Association 

partment of Justice 

ciation 

of Governments 

of Police 

tice Planners 

partment of Justice 

U.S. Advisory Commission on Intergovernmental Relations Ix 
Matthew Tamey, Florida Advisory Council on InterAnthDny Daukom, American Correctional Association 

Carl Tnshler, U.S. General Accounting Office 

Laura DeKoven Wman, U.S. Confcrencc of Mayors 

At ACIR, Ronald D. Allen and Erica Jacoby Pricc 

provided research support for the project. Joan A. Cascy 

edited the reports for publication. 

The author wishes to particularly acknowledge thc 

contribution of the legislative careers of Honorablc A.L. 

Philpott and the Honorable Warren G. Stambaugh to preserving a balance between the concepts of justicc and POlitical accountability. 

governmental Relations 

Funding for the project was assisted by the U.S. Department of Justice, Office of Justice Programs, National 

Institute of Justice, under NIJ's program to facilitate the 

exchange of information to improve state and local criminal justice administration. 

The Commission and its staff retain final responsibility for the contents of this report. 

John Kincaid 

Executive Director 

Bruce D. McDowell 

Director, Government Policy Research 

x US. Advisory Commission on Intergovernmental Relations 
CONTENTS 

Findingsand Recommendations ....................................................................... 

Findings 

Recommendations ................................................................................... Recommendation I-Balancing the Criminal Justice System ........................................... 

Prevention ................................................................................... Policing ..................................................................................... Adjudication ................................................................................. Jails 

Corrections 

Improved Management ....................................................................... 

Constitutional Balance ........................................................................ 

............................................................................................ 

........................................................................................ .................................................................................. 

Intergovernmental Funding .................................................................... 

Recommendation 2-Informing and Involving Policymakers Recommendation 3-Improving Information and Decision-Support Systems ............................. Recommendation 4-Establishing and Supporting Criminal Justice Coordination ........................ 

Chapter 1 -The Challenge ............................................................................. 

Dimensions of the Problem ........................................................................... Historic Trends .................................................................................. 

........................................... 

Prison Population Growth Reflects Major Shift .................................................. Why Prison Populations Have Increased ........................................................ Impacts on Other Elements of the Criminal Justice System ....................................... Harbingers of Future Trends in Criminal Justice ..................................................... Age Demographics ........................................................................... The War on Drugs ............................................................................ Violent Crime ............................................................................... Probation and Parole ......................................................................... The Demographics of Crime ................................................................... Public Opinion ............................................................................... Summary ........................................................................................ 

Fundamental Intergovernmental Issues ................................................................. Bridging Disparate Sources of Authority ............................................................ State-Local Relations: Defining Responsibility ....................................................... Controlling System Impacts ....................................................................... The Federalist Concept of Noncentralized Criminal Justice ........................................... 

Summary ........................................................................................... 

Chapter 2-The Dynamics of Sentencing ................................................................ 

The Political Context ................................................................................. Crime 1s Whatever Elected Officials Legislate as Crime .............................................. 

1 

1 

4 

4 

5 

5 

5 

5 

5 

5 

5 

6 

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6 

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9 

9 

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9 

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15 

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20 

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27 

31 

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32 

U.S. Advisory Commission on Intergovernmental Relations xi 
Swings of Philosophy ............................................................................. Diffused Responsibility ........................................................................... Difficulties in Understanding the Criminal Justice System ............................................ Summary ........................................................................................ 

The Criminal Justice Sentencing System ................................................................ Is the Criminal Justice System Sound? .............................................................. Why Do “Criminals” Go Free? .................................................................... Right to Counsel ................................................................................. 

Case Management ............................................................................... 

Judicial Discretion ............................................................................... Parole and Determinate Sentencing ................................................................ Determining Eligibility for Parole .............................................................. Goals of Parole .............................................................................. 

SpeedyTrial ..................................................................................... 

Plea Bargaining .................................................................................. 

Summary ........................................................................................ 

Sentencing Reform ................................................................................... Sentencing Reform Commissions .................................................................. Who Will Be in Charge of Reform? ................................................................ Projecting the Effects of Sentencing Changes .................................................... Problems with Sentencing Commissions ......................................................... Substantive Complexity ........................................................................... Who Will Ultimately Decide Actual ”imc Sewcd? ................................................... The Impact on Prisons and Jails .................................................................... The Political Climate ............................................................................. 

Summary ........................................................................................... 

Chapter 3-Criminal Justice Options to More Prisons and Jails ........................................... 

Interest in Increased Use of Sentencing Options ......................................................... Shifts in Public Policy ............................................................................. Public Acceptance ................................................................................ Summary ........................................................................................ 

An Overview of Options to Incarceration ............................................................... Pretrial Options .................................................................................. Types of Program Initiatives ................................................................... Probation and Parole ............................................................................. Probation and Parole Caseloads ................................................................ Classification of Potential Probationers and Parolees ............................................. Types of Probation and Parole Programs ......................................................... Programming to Reduce Jail and Prison Stays ....................................................... 

Jail Programs ................................................................................ Prison Programs .............................................................................. Summary ........................................................................................ 

State Variations in Use of Community Options .......................................................... Community Corrections Acts ...................................................................... State-by-State Comparisons ....................................................................... 

Summary .......................................................................................... 

Chaprer I-Establishing Correctional Options ........................................................... 

The Context of Policy Decisions ........................................................................ Not in My Backyard .............................................................................. Cost: The Driving Force for Change ................................................................ Recidivism: Is Batting . 350 Good Enough? .......................................................... Lack of Program Evaluation ....................................................................... Who Will Be Placed in Programs? .................................................................. 

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41 

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42 

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44 

46 

46 

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48 

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49 

50 

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57 

61 

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64 

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89 

90 

xii U.S. Advisory Commission on Intergovernmental Relations 
Who Will Commit More Crimc? 

What Will be the Effect on Prisons and Jails? .................................................... ............................................................... 90 

91 

Summary ........................................................................................ 95 

The Juvenile System .............................................................................. 95 

Trends and the Response to Juvenilc Crimc ..................................................... The Criminal Justice System’s Response to Drugs .................................................... 

Programmatic Challenges to a More Effcctivc Criminal Justicc Response .................................. 95 

96 

98 

The Effect of Increased Enforccmcnt Against Drug Crimes ....................................... 98 

Relation of Substance Abuse and Crimc: Issucs of Lcgalization .................................... 98 

The Effect of Alternative Law Enforcement Policies ............................................. 100 

100 

Using the Criminal Justice System as the Gateway to Treatment ................................... 101 

Tracking the Severity of the Drug Problem ...................................................... 

Summary ........................................................................................ 106 

Governmental and Intergovernmental Policy Challenges ................................................. Integration of Criminal Justice and General Govcrnrnent ............................................. Reducing Ikrf Protection ...................................................................... 108 

Disparate Funding Responsibilitics ............................................................. 109 

Adequacy of Community Resources ............................................................ 109 

Intergovernmental Funding and Control ............................................................ 110 

State Prisoners Backed Up in Local Jails ........................................................ 110 

Redefining State Responsibility ................................................................ 110 

Responsibility for Community Corrcctions ....................................................... 111 

Probation and Parole Officers’ Accountability and Workload .......................................... 112 

Probation and Parole Caseloads ................................................................ 112 

Intergovernmental Responsibility for Probation and Parole ........................................ 113 

Balancing the Conflicting Missions of Public Safcty. Punishment. and Rehabilitation ..................... 115 

Summary ........................................................................................... 117 

Chapter 5-Capital Expansion ......................................................................... 121 

How Can You Be Sure You Need More Space? 

Determining a Facility’s Capacity ................................................................... Reducing the Need for New Jail Space ............................................................. 

107 

108 

......................................................... 121 

121 

122 

Pretrial Release .............................................................................. 122 

Case Management ............................................................................ 122 

Alternative Sanctions ......................................................................... 122 

State Transfers ............................................................................... 122 

Using the Need for Jail Space as an Opportunity for System Analyses .................................. 122 

Determining the Nature of Future Prison and Jail Needs ............................................. 124 

Summary ........................................................................................ 126 

General Government Officials’ Responsibility in Building Prisons and Jails ................................. 126 

Sources of Funding ............................................................................... 126 

State Oversight of Local Jail Construction .......................................................... 127 

Government Officials as Construction Managers ..................................................... 130 

Summary ........................................................................................ 130 

Consequences of Inaction: Court Intcrvcntion ........................................................... 131 

Evolution of Court Response to Conditions of Confinemcnt .......................................... 132 

The Nature of Judicial Oversight 132 

Ramifications of Court Suits 135 

Population Caps 135 

137 

................................................................... ....................................................................... System Improvements at the Price of Budget Control ............................................. 135 .............................................................................. Future Prospects for Conditions of Confinement Suits ................................................ 

Summary ........................................................................................... 138 

Chapter 6-Representing and Protecting the Public’s Interest ............................................. 141 

U.S. Advisory Commission on Intergovernmental Relations xiil 
Oversight of Police and Sheriffs’ Departments ........................................................... 141 

The Drive to Hire More Officcrs ............................................................... 141 

Assessing the Consequences of Hiring Decisions ................................................. 141 

Reducing Isolation ............................................................................ 142 

Community Policing .............................................................................. 143 

Program Initiatives ............................................................................... 143 

Police Presence .............................................................................. 143 

Reclamation ................................................................................. 143 

Involving Citizens ............................................................................ 144 

Preventive Outreach .......................................................................... 144 

Citizen Response ............................................................................. 144 

General Government Officials’ Involvcment ..................................................... 144 

Summary ........................................................................................ 145 

Victim and Witness Programs ......................................................................... 145 

Crime Prevention and Detection ................................................................... 145 

Making the Criminal Justice System Accessible ...................................................... 147 

Victim Involvement in Adjudication ................................................................ 148 

Mediation ................................................................................... 148 

Victim Sentencing Input ...................................................................... 149 

Victim Compensation ......................................................................... 149 

Summary ........................................................................................ 149 

Locating Correctional Facilities in the Community ....................................................... 150 

Importance of the Decision Process ................................................................ 150 

Recognizing Community Interests .................................................................. 151 

Legal Strategies .................................................................................. 152 

Summary ........................................................................................... 152 

Chapter 7-Criminal Justice Funding and Cost Savings .................................................. 155 

Revenues Generated within the Criminal Justice System ................................................. 156 

PrisonandJail Industry Sales ...................................................................... 156 

DUI Fines and Counseling Fees ................................................................... 156 

Drug Treatment Fees ............................................................................. 157 

Supervisory Fees ................................................................................. 157 

Ability to Pay ................................................................................ 157 

Rate of Collection ............................................................................ 157 

The Amount of the Fee ....................................................................... 158 

Judicial Discretion ............................................................................ 158 

Court Costs ..................................................................................... 158 

Fines ........................................................................................... 158 

Restitution ...................................................................................... 159 

Summary ........................................................................................ 160 

Cost Savings ........................................................................................ 161 

Operational Improvements ........................................................................ 161 

Privatization ..................................................................................... 162 

Major Issues ................................................................................. 164 

Intergovernmental Operational Cooperation and Resource Sharing .................................... 164 

Law Enforcement Intergovernmental Coopcration ............................................... 165 

166 

Overcoming Barriers to Sharing Resources .......................................................... 167 

Establishing Priorities .......................................................................... 167 

Determining Who 1s in Charge ................................................................ 168 

Federalism and Intergovernmental Cooperation .................................................. 168 

Summary ........................................................................................ 169 

Intergovernmental Funding ........................................................................... 170 

Drug Assets ..................................................................................... 159 

Intergovernmental Cooperation among Correctional Agencies ..................................... 

xiv U.S. Advisory Commission on Intergovernmental Relations 
State and Federal Program Support and Project Funding .............................................. 

Federal Program Assistance ................................................................... 172 

Will Discretionary Assistance Lead to a Mandate? ............................................... Is Intergovernmental Assistance Relevant? ...................................................... Intergovernmental Formula Funding ............................................................... 177 

Variations in Governmental Responsibility for Criminal Justice Functions ........................... Allocation on the Basis of Need Versus Funding Support 

Does Funding Recognize Criminal Justice Responsibility? ............................................. The Politics of Funding and the Demographics of Crime .............................................. 

Chapter &Planning and Coordination ................................................................. 

Responsibility for Planning ........................................................................ 187 

Planning and Budgeting in Times of Explosive Growth ............................................... 

170 

State Program Assistance ...................................................................... 170 

175 

176 

177 

177 

180 

181 

Summary 182 

187 

Planningand Budgeting .............................................................................. 187 

189 

Personnel ................................................................................... 189 

Forecasting .................................................................................. 193 

Entitlerncnts ................................................................................. 196 

Summary ........................................................................................ 196 

DataBase Development .......................................................................... 197 

Individual Offender Information ............................................................... 198 

Information to Enhance System Flow ........................................................... 199 

Aggregate Information to Support Analysis and Planning ......................................... 200 

Fiscal Impact Statements .......................................................................... 201 

Validity of Data .............................................................................. 201 

Breadth ..................................................................................... 201 

Timeliness 201 

Improving the Fiscal Impact Process ............................................................ 201 

Coordination to Deal with System Impacts .......................................................... 202 

LEAA State Planning Agencies and Criminal Justice Coordinating Councils ........................ 203 

Councils of Governments and Metropolitan Planning Organizations ................................ 204 

Budget Coordinating Bodies ................................................................... 204 

Secretariats, Coordinating Councils. and Crime Commissions ...................................... 204 

Tmsk Forces 205 

Coordinating Bodies under Community Corrections Acts ......................................... 205 

Federal Drug Enforcement Allocations ......................................................... 205 

Blue Ribbon Commissions ..................................................................... 205 

The Dynamics of Criminal Justice Change .............................................................. 206 

Clarifying Intergovernmental Responsibility ......................................................... 207 

Legal Requirements and Restraints ............................................................. 207 

Integrating Criminal Justice into the Mainstrcam of Public Services ................................... 208 

Legislative Leadership ........................................................................ 209 

Judicial Leadership ........................................................................... Leadership from the Prosecutor and from the Sheriff ............................................. 

Leadership from General Government Agencies ................................................. 

......................................... 

........................................................................................... 

System Impacts ...................................................................................... 197 

................................................................................... 

.................................................................................. 

Summary ........................................................................................ 206 

Managerial Efficiencies ....................................................................... 208 

Need 208 

Executive Leadership 208 

209 

209 

Correctional Agency Leadership 210 

210 

211 

211 

211 

212 

....................................................................................... 

......................................................................... 

............................................................... 

.................................................... .............................................................. .................................................................. 

Achieving Change in the Criminal Justice System 

Involvement of the Right Officials 

Need for an Ongoing Agenda 

Combating Theatrics through Consensus Building ................................................ Developing Public Support .................................................................... 212 

........................................................................................... Summary 214 

U.S. Advisory Commission on Intergovernmental Relations xv 
xvl US. Advisory Commission on Intergovernmental Relations 
FINDINGS AND RECOMMENDATIONS 

Findings 

1. Criminal justice is a growingjiscalproblem for America's 

municipal, county, state and federal governments. 

Governments in America now spend over $70 billion a 

year on criminal justice. Since the mid-l970s, criminal jus- tice expenditures have risen faster than any other area of 

state and local government spending. Bctwecn 1973 and 

1990, state own-source spending on criminal justice increased 759 percent; county, 490 percent; municipal, 330 

percent; and federal, 345 percent. 

2. Spending on criminal justice has been driven more by increased prosecution and prison sentencing than by increases in reported crime and arrests. 

Between 1973 and 1990, the number of people in prison grew by 238.2 percent. The U.S. incarceration rate of 

426 prison and jail inmates per 100,OOO population compares to 97/100,000 for the United Kingdom, 81 for 

France, 68 for Denmark, and 45 for Japan in 1989. The cxtraordinary growth has resulted from actions taken by all 

parts of the criminal justice system; however, increased arrests (stemming from population growth, reported crime. 

and stronger law enforcement) account for only about 

one-third of the growth. 

Court-related decisions and correctional policies account for the remaining two-thirds of the growth affecting 

most criminal justice agencies. Prosecutors are more apt 

to press charges following an arrest, thereby increasing 

court caseloads, and tougher sentencing laws combined 

with judicial and prosecutorial discretion have produced 

more imprisonments. Increased parole and probation revocations also have added to prison growth. 

Despite efforts to fund this growth, the United States 

entered the 1990s with overloaded courts, prisons, and 

jails; probation and parole caseloads that are double past 

levels; continuing budget pressures; and rising rates of violent and juvenile crime. Furthermore, many criminals are 

continuing to commit crime longer: the average age at arrest is 29; nearly 60 percent of jail populations are over age 

25, compared to half in 1983; and 23 percent of state prison 

inmates are over age 35, compared to just 14 percent in 1979. 

3. Law enforcement officers, courts, and corrections officials cannot, by themselves, reduce crime significantly. 

Crime prevention programs that address economic and 

social needs, and policies and incentives that empower 

citizens to reestablish effective community institutions 

and civic order also are essential. 

Changes in criminal justice systems alone will not significantly reduce crime. By the time police agencies, 

prosecutors, public defenders, judges, jailers, probation 

officers, and prison administrators get involved, their 

principal contribution is to control the cost of crime by being more efficient. 

Actually reducing crime and its costs requires (1) prevention programs for infants (e.g., crackbabies and abused 

children) through teenagers; (2) reexamination of the effects on crime of policies governing education, welfare, 

urban renewal, public housing, and economic development; (3) ready availability of drug treatment, literacy, and 

job training for adult criminals and youth; and (4) private 

and government efforts to support people in areas heavily 

hit by crime to strengthen social structures, maintain 

sound civic values, work with law enforcement, and assert 

individual responsibility. The success of any single prevention program is undercut by multiple problems of offenders and the effect of negative adult behavior on younger 

generations. At the same time, criminal justice costs continue to be driven by past prevention failures. 

Only the elected officials of general government 

have the authority to reach across all the necessarypublic agencies and programs-such as health departments, school boards, and housing authorities-and focus them on crime prevention. 

4. Because of their unique constitutional authority and responsibilities, local, state, and federal chief executives and 

lawmakers play critical roles in determining the outcomes 

and eflectiveness of the crim'd justice system and crime 

prevention. Banien aid to their in formed involvement. 

The responsibility and the authority to address many 

criminal justice and crime prevention issues lie uniquely 

U.S. Advisory Commission on Intergovernmental Relations 1 
with the chief elected officials of general governmentincluding mayors, county chief executivcs, govcrnors, 

state legislators, members of city councils and county 

boards, as well as the president and the Congress. First 

and foremost, legislative officials enact laws that dcfine 

crimes and prescribe punishments. Executive officials 

cany out or oversee the enforcement of criminal laws. 

Chief elected officials also have the pwcr of the budget, appointment powers over general government agency heads, 

authority to legislate policy, and ready access to the public to 

build support for prevention and foster citizen involvcment. 

The constitutional balance of powers also gives chicf 

executives and lawmakers the responsibility to hold criminal justice officials accountable for efficient, cfl‘cctivc, and 

responsive performance. General govcrnmcnt officials 

can exercise this responsibility by using their assigned 

powers of approving budgets and setting personnel levels, 

passing sentencing laws, appointing correctional and police agency heads, enacting legislation, and adopting cxecutive policies that set criminal justice procedures. 

Informed involvcment of lawmakers and chicf cxccutives sometimes is restrained becausc many have not had 

routine contact with the criminal justice system, and they 

are not conversant with legal procedures, terminology, 

and life-threatening situations. Research is limited and 

most data reporting is focused on one part of the criminal 

justice system, with definitions that arc confusing or cannot be applied broadly. Finally, much of what is written is 

written by criminal justice officials for criminal justice ofl‘icials and is difficult to use for policymaking or to dctcrmine accountability. 

5. Most crimes, and authorized punishments for them, are 

established by state laws. 

Historic fear of abuse of authority fostered a nonccntralized structure of criminal justice in America. The U.S. 

Constitution specified only treason and counterfeiting 

(with respect to the United States) as fcdcral criminal 

matters. Otherwise, criminal law was reserved to the states, 

with each state to reflect community standards through cnactment and enforcement of its own criminal laws. 

Today, state-local systems of criminal justice prosccute 94 percent of all serious crimes (felonies), county jails 

hold most persons detained on state or fcdcral felony 

charges, state prisons hold 93 percent of the total prison 

population, and state and local governments expend 87.4 

percent of all criminal justice funds. State and local govcmments, therefore, are the primary actors in criminal justice. 

6. The federal government S influence on criminal justice 

has been vanding faster than itsjinancial commitment. 

Historic developments ( e.g., Reconstruction and Prohibition), increased interstate travel and communication, 

the emergence of crime as a presidential campaign issue in 

1964, and passage of five major anticrime bills in the 1980s 

have resulted in more than 3,000 acts being defined as fcdera1 crimes. In addition, federal court orders have mandated signiEicant expenditures to correct conditions in 

prisons in 45 states and in 25 percent of all local jails holding 

more than 100 inmates. In contrast, federal assistance for 

state and local law enforcement dropped from 27 percent of 

fedcral justice spending in 1973 to only 7 percent in 1990. 

This loss of funding is criticized by state and local officials bccause they must produce the actual results promiscd under well-publicized federal anticrime initiatives. 

The fcdcral government’s criminal justice system, however, does not have to-and does not-accept jurisdiction 

over most “street crimes” even if a federal law covers the 

offense. Tougher federal sentences also add political pressure on state officials to enact similar increases. 

7. Criminal justice responsibilities are dispersed among municipal, county, state, and federalgovernments; their legislative, executive, and judicial branches; and many dqferent agencies and authorities that police, adjudicate 

charges, and administer correctional programs. 

The structures of each state’s and the federal govemmcnt’s criminal justice systems differ, as may the structurcs in urban and rural jurisdictions. However, one common clement is the independence of key officials. Not 

only are most judges, prosecutors, sheriffs, and clerks of 

court-and sometimes other officials, such as coronerselected independently, but agency heads usually serve at 

the pleasure of and are funded by different units of government. These checks and balances were created to protect persons against arbitrary persecution and punishment, but they need not bar collaboration where it could 

yield system improvements. 

In 1990,36.5 percent of criminal justice expenditures 

were funded by states; 29.0 percent by municipalities; 20.9 

percent by counties; and 13.5 percent by the federal government. (When intergovernmental funding is attributed 

where it is spent, the municipal and county shares are 

slightly larger.) 

Municipalities fund over half of all policingactivities, which comprise approximately 80 percent of 

their criminal justice budgets. 

County responsibilities are split almost evenlybetween policing (usually provided by county sheriffs), court-related functions, and corrections. 

Jails are a county responsibility; however, about 

half of county jail populations are awaiting trial 

for state and federal offenses (felonies) or local 

offenses (misdemeanors). Only one-third are 

serving sentences of less than one year for a local 

misdemeanor. The remainder have been convicted of a felony and are awaiting transfer into a 

state or federal prison. 

States spend 60 percent of their criminal justice 

budgets on corrections-mostly to fund state 

prisons. However, states also bear about half the 

cost of community corrections. On average, the remainder of state criminal justice spending is split 

evenly between policing and court-related services. 

The federal government funds all aspects of its 

own criminal justice system. It also provides 

grants to state and local governments. Comparing expenditures by the federal government with 

w 

w 

D 

2 U.S. Advisory Commission on Intergovernmental Relations 
total state and local expenditurcs, thc proportions spent on policing are about equal, but correctional costs make up only 15.5 pcrcent of fcdera1 criminal justice expenditures, comparcd to 

36.3 percent of state and local expcnditurcs; 

court-related expendituresby thc federal govcrnment are more than twice the proportion spent by 

states and localities. 

Rapid growth in the criminal justice system has signijicantly affected the responsibiliries, workloads, andjinancia1 demands on different parts of the system, creatingrising intetgovemmental tensions. 

Since 1973, all governments have cxpcricnccd cxtraordinary pressure to fund criminal justice scrviccs. This 

creates frustration when greater intergovernmcntal assistance is not forthcoming or when other govcrnmcnts do 

not meet their traditional responsibilities (e.g., a local jail 

backlogged with felons awaiting transfcr into ovcrcrowdcd 

state prisons). 

8. 

The 759 percent increase in state own-source 

criminal justice spending has becn driven by prison growth, increased state assistance to local governments, and merger of local courts into many 

state systems. State taxes now fund 36.5 perccnt of 

criminal justice expenditures, comparcd to 24.2~~- 

cent in 1973, when municipal spending on police 

and federal assistance were more dominant. 

The 490 percent increase in county own-source 

funding has been driven mainly by jail growth, but 

many counties still bear significant court costs. 

Many urbanized counties also fund crime prevention programs. 

The 330 percent average increase in municipal 

funding masks significantly higher increases for 

police in large cities. This increase also docs not include expenditures to prevent crime, such as street 

lights, recreation programs, and social services. 

The 345 percent increase in total federal criminal 

justice funding resulted from two opposite 

trends. The drop in federal aid to state and local 

governments offset increased costs incurred by 

the federal government itself due to more crimes 

being tried as federal offenses and increased prison time resulting from federal sentencing reform. From 1985 to 1990, direct criminal justice 

expenditures by the federal government grcw almost as much as direct state criminal justice expenditures, making the federal government even 

less responsive to state, county, and municipal 

claims for restored intergovernmental funding, 

as in the War on Drugs. 

Two areas where budget increases have not kept pace 

produced notable imbalances within the justice system: 

1. Community corrections. In 1977, over 17 percent of 

correctional expenditures were for probation and parole; by 1990, this had dropped to 11 percent. Specifically, from 1985 to 1988, probation and parole personnel increased at only half the rate of the number of 

offenders on probation or parole; hence, reduced supervision and programming have been accompanied by increased revocations and, starting in 1987, less use of probation as a sentencing option. These effects further 

increase the prison portion of correctional spending. 

Court-related funding. Felony case filings in state 

courts increased over 8 percent annually from 1984 to 

1989, while judicial and prosecutor personnel increased approximately 3 percent annually. Because 

speedy trial requirements apply only to criminal cases, 

rcduced court funding has produced significant delays 

in hcaring civil cases. In addition, where public defense funding has not kept pace, inadequate represcntation increases prison and jail populations. 

Most crime occurs in big cities and highly urbanized 

counties. 

In 1989, cities with over one million population reported over 80 percent more crime and oier'three times 

more violent crime per person than the national average. 

Cities between 50,000 and one million people also had 

rates at least one-half higher than the national average. 

While only one in 280 rural households and one in 133 suburban households had a member who was the victim of a 

robbery in 1989, one in 59 households in cities over 50,000 

population were victimized. 

Spending for police has increased significantly faster 

in large cities than in small municipalities, and urban 

counties have experienced at least equal growth in court 

and jail demands. Some urban governments that do not 

have responsibility for funding schools spend half their 

budget on criminal justice. 

10. Three out of four convicted offenders are on probation or 

parole. Most of those who are inprison have serious criminal histories, but prison populations can be reduced if 

corrections alternatives are strengthened. 

The standard statistic that three out of four persons 

convicted of a crime are serving their sentence in the community can be misleading because it combines misdemeanants and felons. It is more informative to note that over 

90 percent of misdemeanants and two-thirds of felons are 

serving a sentence in the community. Therefore, community corrections already is used heavily for misdemeanors 

and minor felonies. Further expansion must focus on adequate staffing for programs that address more seriousbut not yet career-criminal behavior. Even though over 

90 percent of misdemeanants and two-thirds of felons are 

serving a sentence in the community, only 11 percent of 

state and county correctional spending supports probation 

and parole. About 85 percent of state and county correctional expenditures is committed to institutional care. 

Confusion also has been created by studies that consider only the current offense of those being sent to prison 

rather than the criminal history of those in prison. Such 

studies can create the false impression that large numbers 

of prison inmates are nonviolent petty criminals. In fact, 

US. Advisory Commission on Intergovernmental Relatfons 3 
whereas only 27 percent of the people admittcd to state 

prisons in 1991 were sentenced for a violent offcnsc, 60 

percent of all inmates in state prisons had bccn convicted 

of a violent crime at least once. The diffcrencc stcmsfrom 

the fact that serious offenders serve longcr sentenccs, and 

that some of those currently serving time for a nonviolcnt 

offense have violent criminal histories. Anothcr 18 pcrcent of all inmates were in prison on at least their fourth 

conviction for a nonviolent offense. The remaining 22 pcrcent includes only 7 percent who are nonviolcnt first timers. (All drug offenses are categorized as nonviolent.) 

Significant variations exist among the states in the use 

of imprisonment in relation to reported crime ratcs, arrests, and use of community sentences. Policy considcrations vary, accordingly, in deciding what proportion of a 

state’s prison inmates can be more cheaply and equally effectively placed in nonprison correctional programs and/ 

or serve reduced sentences. The experiencc of statcs using 

early release of all but the most serious offcnders to relieve prison overcrowding indicatcs a 10 to 15 percent reduction in prison populations is possible, without any appreciable increase in criminal activity, through shorter 

sentences and use of community correctional supervision 

and programs. 

11. Policies seldom link government agencies in order to establish a continuum to address literacy, job twining, probation supervision, substance abuse, mental illness, housing, and other services needed to phase oflenders back 

into the community. 

Approximately 60 percent of prison inmates arc 

schooidropouts; over half admit the; wcre under thc influence of alcohol or drugs at the time of their crime; and 

in 1986, less than 40 percent earned more than $10,000 in 

the year before their arrest. 

The responsibility for providing education, human 

services, employment, and criminal justice programs is 

dispersed among municipal, county, and state govcrnments; departments within these governments; and independent school districts. Many offenders have needs that 

should be addressed simultaneously by the complementary 

actions of several agencies, such as adult education, drug 

treatment, public housing, and parolc supervision. Inmates and juveniles who start programs in correctional institutions often cannot continue in similarly focused programs outside because general government agcncies resist 

taking offenders, programs are not coordinated, and/or 

there is no room in the available programs. Finally, local 

governments resist policies to sentence state felons to 

community programs instead of prison if state funding 

does not finance the community programs. In turn, citizcn 

resistance to having offenders in the community makes it 

difficult to focus remedial programs on first-time offcnders to prevent them from becoming career criminals. Only 

the elected officials of general government have the political reach and authority to link agencies, programs, and 

funding to overcome present deficiencies in the system. 

12. The need for coordination of criminal justice activitiesfur 

outstrips current efforts to promote coordination. 

Diverse authority complicates coordination. Because 

of the number of independently elected officials and the 

division of responsibilities between governments, lawmakers and chief executives must work with court officials 

and agcncy heads over whom they do not have hirelfire or 

budgctaly authority. This lack of clear authority limits 

their ability to mandate coordination and obscures responsibility for coordination. 

When coordinating bodies are established, principals 

cannot participate with equal authority. For example, a 

typical local coordinating body will include independent 

electcd officials, agency heads from county and municipal 

governments, employees of the court, and middle managers from state bureaucracies. 

Multiple types of coordination are needed to meet 

different needs. For example, a municipal police agency 

may need to coordinate with other municipalities, the 

county sheriff, state police, and/or federal agencies to 

achieve enhanced enforcement capability; with the county 

prosecutor, forensic laboratory, jail intake, and the court 

for more efficient procedures; and with the housing authority, code enforcement agents, schools, juvenile court, 

and the recreation department for prevention initiatives. 

Kcy officials may lose interest in participating in large 

coordinating bodies that do not focus on their immediate 

needs, and they simply may not have the time to participate in a number of special purpose bodies. 

Coordination also has been undercut by competition 

for limitcd funds. Very few of the coordinating bodies 

mandated by the federal government in the 1970s still exist 

bccause most focused too much on obtaining federal grants. 

However, some officials are using the most pressing 

problem in their system to draw players together. Successful efforts typically involve both a forum for debate and 

consensus building among policymakers, as well as a 

mechanism for operational collaboration. Such solutionoriented approaches have produced many different types 

of coordinating bodies, some of which have built on initial 

successes-for example, court case management to relieve jail overcrowding or criminal justice budget revicwto establish ongoing comprehensive priority setting, planning, and coordination. 

Recommendat ions 

Recommendation 1 

Balancing the Criminal Justice System 

The Commission finds that the criminal justice system 

is out of balance. Disproportionate emphasis has been 

placed on law enforcement and tough mandatory sentcnces, compared to appropriations and policies affecting 

the courts, prosecution, public defense, corrections, and 

crime prevention programs. Increasingly, federal statutes 

and court orders are setting the tone, while the costs arc 

being borne overwhelmingly by the state and local governmcnts. State laws, in some cases, also mandate criminal 

justice costs that are difficult for local governments to meet. 

The Commission recommends, therefore, that state legislatures and the Congress reexamine their criminal justice systems to rectifit imbalances among law enforcement, adjudica4 U.S. Advisory Commission on Intergovernmental Relations 
tion, and corrections capabilities, Any additional criminal 

justice mandates proposed in the Congress and state legislatures should be considered for enactment only afler thorough 

ystem impact analyses have been prepared and aired with affected governments, and with affected law enjorcement, pt-osecution, public defense, corrections, and crime prevention interests. Special attention should be given to the foCCowing issues: 

Prevention 

A. Thepriorities andprograms offamily support, health, and 

education agencies are crucial in addressing the reasons 

why some children grow into a life of crime. 

B. Intergovernmental coordination ofthe delivery of we[lare, 

housing, education, employment, drug treatment, health, 

and other human services is essential to the success ofprevention eflorts, 

C. It is particularly important that resources be directed to 

where crime is the highest and that citizens be empowered 

to reclaim their communities. 

Policing 

D. 

E. 

E 

The proactive role ofpolice and sherifli ’ deputies in crime 

prevention and in working with residents of high-crime 

communities should be promoted. 

Police and sheriffs’ deputies should assist with the successjul 

return to the community ofpersons on pretrial releme, probation, and parole. 

To protect the integrity of selection and training, surges in 

the hiring of police and sherifls’ deputies should be 

avoided. 

AGudication 

G. General government oflicials should facilitate improvements in court case management through relevant involvement of executive branch systems-support expertise. 

To the maximum degree appropriate, more use should be 

made of summons in-lieu of arrest, dejerred prosecution, 

pretrial release, video depositions, expedited trials, und 

reminders to appear for trial. 

H. Integrated state court systems, with state assumption of 

financing, should be considered where not in use to improve the functioning of lower courts. 

States should support small prosecutor oflices and courts 

by providing access to legal research, pertinent continuing 

legal education, and multijurisdictional support. 

I. 

Jails 

J. States should develop jail operating and construction 

standards, with particular attention to personnel requirements and training, and should provide technical or jinancial assistance to localities in meeting such standurds. 

Federal and state courts should avoid prescribing detailed 

remedies to jail and prison overcrowding, except in extreme cases. 

K. Counties holding state prisoners should be paid at appropriate rates that are indexed to cost increases in comparable state facilities. 

Separate facilities and services should be provided for 

mentally ill, inebriated, and drug dependent detainees. 

M. Academic, job training, and substance abuse programs 

should be provided for inmates, in close cooperation with 

community agencies, to facilitate continued participation 

upon release. 

L. 

Corrections 

N. Sentencingguidelines should be balanced against realistic 

estimates of incarceration capacities; the program capacities of probation, parole, and alternative community 

sanctions; and the recidivism rates ofpersons in these alternative programs. 

0. Community-based and institutional correctional programs, personnel, and staffing levels should be upgraded. 

Academic, job training, and substance abuse programs 

and mental health services should be provided for inmates. Prison and jail industries, using private contractors, should be authorized as one means ofgiving oflenders marketable skills, where such contractors would not 

create unfair competition with private businesses. 

Q. The distinct functions of supervising probationers and 

gathering pre-sentence information on offenders should 

be separated and supported adequately. 

R. Greater use should be made of community-based alternatives to incarceration -such as community service, restitution, and enhanced supervision; community corrections acts to provide a framework for managing 

intermediate sanctions should be considered. 

P 

Improved Management 

S. Professional administrators should be used to support officials throughout the criminal justice system in implementing needed management improvements. 

When comparing privatization alternatives with public 

operations in criminal justice, full costs and liabilities 

should be considered, on both sides of the equation. 

U Multigovernment (regional) correctional, training, and 

other criminal justice activities should be authorized and 

encouraged by states where they have the potential toproduce cost savings and improved services. 

T 

Intergovernmental Funding 

V State and federal criminal justice grant formulas should 

direct funds to where the money could do the most to reduce crime. 

W Stute and federal grants should encourage community 

corrections for first-time and nonviolent offenders and 

emphasize cooperation between government entities. 

X. State finding assistance to localities should be indexed to 

increases in comparable state criminal justice programs. 

U.S. Advisory Commission on Intergovernmental Relations 5 
I: The federal variable passthrough formula should be administered to ensure that federal money is apportioned 

according to the different degree of state and local criminal justice responsibility in each state. 

Z. Federal grants should avoid earmarking that prevents use 

in efforts that address the range of needs across the states. 

AA. Federal corrections research, training, technical assistance, and information-sharingprograms, wfiich are outstanding, should be continued and emulated in other 

fields of criminal justice. Additional research should be 

encouraged on identifiing career criminals so they can be 

isolated more efsectively from society. 

Constitutional Balance 

BB. Shifting the prosecution of criminal cases from states to 

the federalgovernment and increased federalization of individual criminal activity (not based on multistate access, 

against a federal agency, or a threat to national security) 

should be curtailed. 

Recommendation 2 

Informing and Involving Policymakers 

The Commission finds that the chief elcctcd officials 

of general government -including mayors and mcmbers 

of municipal councils, county chief exccutives and county 

boards, governors and state legislators, and the president 

and members of Congress-play unique and essential 

roles in criminal justice. These roles include (1) legislating 

the definitions of crime; (2) guiding the acceptable range 

of sentences that may be imposed on convicted persons; 

(3) establishing and reorganizing the law enforcement, 

court, and corrections agencies that administer justice; (4) 

funding these activities; and (5) engaging in policy oversight to ensure that criminal justice agencies function cfficiently and effectively in response to the will of the people. 

All of these roles must be played knowledgeably in relation to each other if the system is to work well. 

The Commission finds, however, that some elected 

policymakers are not fully informed about the complexities of the criminal justice system to make decisions that 

foster the intergovernmental, interbranch, and interagency relationships that determine the ultimate success 

or failure of their policies. Their lack of a broad context for 

decisionmaking may expose them to strong public pressure for immediate actions in response to isolated occurrences reported in the press, whether or not such actions 

make sense in the long run. 

nte Commission recommends, therqfore, that the chief 

elected ofJicials of general government (1) insist on being in- formed about the basic characteristics, interrelationships, and 

current facts of the criminal justice system with which they interact; (2) hold criminal justice officials accountable for supporting improved system performance by using budget leverage; and (3) actively engage the other key actors in the system 

and the public in exploring policy options that take into uccount a systemwide perspective. Clear distinctions should be 

maintained between policy setting by general government 

elected ofJicials and detailed administration of programs by 

professional administrators and program officers. It is the responsibility of the generalgovernment elected oflcials to establish 

a cleac balanced, and workable framework for the criminal justice system, but not to micro-mge it so that appropriate administrative and profasiod discretion cannot be exercised. 

Recommendation 3 

Improving Information 

and Decision-Support Systems 

The Commission finds that information technology is 

making possible much more powerful information systems 

and analytical processes for supporting criminal justice 

decisionmaking by elected officials. These systems have 

the potential to assist elected policymakers in forecasting 

future personnel and facilities needs more reliably, based 

on past trends and simulations of proposed sentencing 

changcs or other policy options. They also can assist in 

analyzing the budgetary impacts of mandates from othcr 

govcrnments. In addition, information systems can hclp 

improve the efficiency and effectiveness of criminal justice processes for crime investigations, court case management, and correctional classification and supervision. 

These tools are best used in close cooperation with active 

participants in the system, including close examination by 

the elected officials of the assumptions on which the analyses are based. 

The Commission recommends, therefore, that the chief 

elected oflcials of general government support the development and use of enhanced criminal justice decision support 

and management information systems, the development of 

performance indicators for key activities, and the collection of 

the required data. The Commission recommends, furthec that 

these officials engage general government personnel from budgeting, data ystems technology, and planning offices in the development and use of these information systems so that they 

will serve the needs of state and local decisionmakers realistically and reliably, In particular: 

A. 

B. 

C. 

~riminaljustice planning capacity is needed for (1) individual criminal justice agencies, (2) criminal justice coordinating bodies, (3) the chief executives and budget offices 

of municipal, county, and stategovernments, and (4) legislative committees responsible for criminal justice policies and appropriations. 

Data collection and reporting to meet the needs of criminal justice planning should be independent of and insulated from political influence so that the data will be respected and used by all policymakers and program 

managers. Crime, arrest, conviction, and incarceration 

rates should be collected and correlated. 

Information systems should be developed to support the 

preparation of fiscal impact statements. Such statemenh 

should be required for proposed changes in the criminal 

code and proposed budgets designed to find each part of 

the criminal justice system. These statements should show 

the financial and workload effects of proposals on the 

other parts of the criminal justice system. States should 

develop the analytic capability to detem'ne impacts on indi6 U.S. Advisory Commisslon on Intergovernmental Relations 
vidual local jurisdi&*ons. Localities should develop the capability to Malyte the impact of state proposals on them. 

D. Processes to estimate the need for additional prison and 

jail space should require involvement of all criminal justice agencies to document capacity limits, catalog alternative programs and policies that can reduce space needs, 

present an analysis of the specific types and numbers of 

offenders who can be diverted by these alternative programs, test assumptions against projected law enforcement activities and priorities, and demonstrate proleissional competence in making population projections. 

E. Systems are needed that can reliably estimate the amount 

of general revenue relief that can be achieved from revenues (e.g., fines and program fees) produced within the 

criminal justice system. 

E Information gathered on offenders should be shared more 

readily between criminal justice agencies with the goal of 

improving the accuracy of the information used by each 

agency and eliminating redundant eflorts. 

Recommendation 4 

Establishing and Supporting 

Criminal Justice Coordination 

The Commission finds that the criminal justice system 

needs to be better coordinated. Although some coordination attempts in the past were not successful, others have 

been. Successful coordination brings together the diverse 

actors in the system to get to know each other, develop 

trust, and consider common problems. Participation by the 

chief elected officials of general government is important 

to hold the group together and to cement the essential link 

between the general government and the criminal justice 

community. 

The Commission recommends, therefore, that the chief 

elected officials of state and localgeneralgovernments take the 

lead in establishing and participating in criminal justice coordinating bodies. Where such bodies exist -including, for ex- ample, criminal justice budget review committees, jail orprison planning task forces, community corrections boards, and 

juvenile justice coordinating councils-the Commission rccommends that the chief elected officials ofgeneralgovernment 

do all in theirpower to support and enhance their development 

as useful problem-solving forums, including regularpatticipation of general govemment officials in councils of their peers. 

For example, the mayor and county executive should be part of 

coordination efforts between the sherifi prosecutor, chief 

judge, head ofprobation, and police chiefs, as well as between 

chief criminal justice oficials and treatment agencies, Local 

general government elected officials and state legislators 

should be part of state planning bodies. 

Coordinating bodies should address essential tasks and 

be given authority to perfomz them. The membership should 

include appropriate legislative and executive representatives of 

the municipal, county, state, and federal governments, plus 

representatives of police, sherifl prosecutor, crime lab, public 

delender, judges, clerk of court, prison, parole, probation, and 

treatment provider offices. The membership of each coordinating body should reflect its purposes. 

The charge to these councils should be to coordinate general government and specialized criminal justice goals, to help 

identifjt and realize intergovernmental and interagency operating efficiencies that no single group acting alone could produce, to help balance the system so that bottlenecks do not develop and choke off the effective operation of the system, and 

to help develop community comernus on criminal justice philosophies and implementation policies. 

State andlor local criminal justice commissions are needed and should include adequate attention to community corrections. Criminal justice is and should remain largely a state 

and local responsibility, and a federally mandated structure 

for state or local coordination should be avoided. 

U.S. Advisory Commission on Intergovernmental Relations 7 
8 U.S. Advisory Commission on Intergovernmental Relatlons 
7 -THE CHALLENGE 

E any elected officials of state and local general 

governmentare frustrated by the criminal justice system. 

Criminal justice budgets are perceived to be out of control; indeed, the rate of growth in criminal justice spending 

has outstripped even Medicaid almost every year since the 

mid-1970s.’ Tougher sentencing laws have not reduced 

crime; in fact, violent crime rates have begun to climb. A 

quarter of the counties with jails holding at least 100 inmates and 33 state prison systems are undcr court orders 

to relieve overcrowding. The use of alternatives to prison 

and jail is being undercut by excessive cascloads that compromise probation supervision and indigent defense. Civil 

cases are not being heard because criminal cases are flooding the courts. And the fear of crime remains a perennial 

and potent campaign issue. 

General government elected officials’ who have attempted to alter these trends report that they often are 

brushed aside or intimidated by criminal justice officials, 

overwhelmed by intergovernmental actions beyond their 

control, and/or unable to obtain adequate information for 

sound decisionmaking. For many of these officials, increased efforts to assume responsibility have meant only 

more frustration. 

This report explores the intergovernmental, policy, 

funding, and management issues facing general government elected officials in dealing with the effects of cxplosive growth in criminal justice during the last decade 

and a half and with the challenges of the next dccade. It 

also is intended to serve as a source of information for 

general government officials who have not had cxtensive contact with the criminal justice system, as well as 

providing insight for criminal justice officials on how to 

work with general government officials toward more effective action. 

General government elected officials carry out many 

criminal justice functions: setting penal policy, serving as ombudsmen for the public, overseeing management and budgets, negotiating intergovernmental ardngcments, providTo lay the groundwork for discussing this challenge, 

the remainder of this chapter provides an overview of 

the criminal justice system, tracking the extraordinary 

growth and prospects of future growth. This overview 

also shows how the criminal justice system operates, and 

definitions are introduced as needed. The chapter concludes with a brief review of the challenges related to 

our governmental framework of checks and balances 

and noncentralization that are intertwined with problems driven by criminal justice concerns. 

DIMENSIONS OF THE PROBLEM 

Criminal justice problems in the United States seem 

inexorable and foreboding. Although the dynamic nature 

of crime and society’s response to it produced some signs 

in 1991 that the rate of growth may be lessening, even the 

most optimistic reading of selected trends cannot outweigh other signs of continued pressures on the criminal 

justice system. Furthermore, a decade and a half of unrelenting growth has produced problems that cannot be ignored, even if all growth were to stop tomorrow. 

The following summary of criminal justice trends un- derscores another major fact about the system: it does not 

operate as a system. Criminal justice officials and general 

government elected officials typically operate independently of each other and therefore have no coordinated influence on criminal justice policy. A major theme of this 

report is the challenge to general government elected officials to understand the ramifications of these independent actions and to forge a system approach. 

Historic Trends 

Prison Population Growth Reflects Major Shift 

ing leadership, and defending constitutional imperatives. 

Therefore, meeting the criminal justice challenge will re 

quire full engagement by knowledgeable officials-on the 

general government side and on the criminal justice side. 

Figure 1-1 (page 10) demonstrates the dramatic 

change in criminal justice in the United States, as reflected by the number of persons per 100,OOO population 

serving time in state and federal prisons. 

U.S. Advisory Commission on intergovernmental Relations 9 
Figure 1 -I 

Sentenced Prisoners in State and Federal Institutions, 1925-1990 

250 

I -g 2001 c 

150 

ul 

8 3 100 

-fi 

-0 

8 

2 

50 c 

d 

Y 

0 

1925 1930 5 1940 1945 1950 1955 1960 1965 1970 1975 1980 1985 

Ycars 

Source: U.S. Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statktics, 1990. 

1990 

For 50 years, from 1925 through 1974, the average an- nual increase in the proportion of the U.S. population in 

prison was only 0.5 percent. This suddenly increased to an 

average annual growth of 6.2 percent from 1974 through 

1985, escalating further from 1986 through 1990 to 7.9pcrcent per year. For 1990, the growth dropped to 7.7 percent.3 These unparalleled rates of growth have resultcd in 

the United States having a higher percentage of its population behind bars than any other nation in the 

Further, because the graph is based on the number of 

inmates per 100,OOO population, these rates understate actual growth. The total number of prison inmates has 

climbed even more steeply, 238.2 percent from 1973 

through 1990, even though the incarceration rate increased only 186.3 percent.’ 

While the extraordinary rates of growth apply toboth 

state and federal prison populations, the predominant increases have been in the state systems because criminal 

justice is primarily a state responsibility. State prisons hold 

93 percent of all sentenced felons! Since 1973, state prison populations have grown more than 50 percent faster 

than federal prison populations, mostly because federal 

crimes are largely “white collar,” in contrast to the “street 

crimes” handled by the states. In recent years, however, 

growth rates in the federal system have been similar to 

those in the states.’ 

Why Prison Populations Have Increased 

Prison is the end of line. The factors that have led to the 

large number of people behind bars reflect policies and actions of the criminal justice system as a whole: the decision 

not to parole, the length of the sentence to be served, the 

dccision to sentence to prison rather than probation, the de- termination of guilt, the decision to prosecute, the decision 

to arrest, the ability to arrest, and the commission of crime. 

While subject to the limitations of the FBI and Bureau of Justice Statistics reports on which it is based, Figure 1-2 summarizes the relative effects of general population growth, reported serious crime, felony arrests, 

prosecution and sentencing, and length of stay on the total 

growth in U.S. prison populations.* (Their relative weighting was based on simply taking the reported growth in the 

major criminal justice elements and subtracting the 

growth of any preceding factors.) 

The heavy impact of sentencing legislation and 

court-related sentencing policies is evident; similar sentencing impacts have been documented within state systems and in the federal criminal justice system? This picture of criminal justice trends shifts the traditional debate 

from the impact of more police activityby municipalities to 

the impact of legislative and court-related sentencing policies. Equally important for general government elected 

officials, this analysis provides an important perspective 

on the relatively small contribution of increased crime to 

the criminal justice budget pressures. The following subsections briefly discuss the trends depicted in Figure 1-2. 

Level of Crime. While the nation’s population increased 18.5 percent between 1974 and 1990,’O theNurionul Crime Vicrimizarion Survey (NCVS) reports that the 

10 U.S. Advisory Commission on Intergovernmental Relations 
Figitre 1-2 

Factors Contributing to Criminal Justice Growth, 1974-1990 

,' ,' \a" 

Q0Q6 , .' , 

,' 

Source: ACIR. I 

Prosecution and Sentencing 60.9% 

Reported Crime 19.0% 

number of crimes is about what it was in 1973, having fallen 17.0 percent from a high reached in 1981." By this measure (see Figure 1-3, page 12), increased crime is not rcsponsible for the load on the criminal justice system. 

In significant contrast, the FBI's Uniform CrimeReyort 

(UCR) shows a 66 percent increase in the number of serious crimes reported since 1973, as shown in Figure 1-4 

(page 12).'* 

These conflicting indicators of crime levels are both 

produced by the U.S. Department of Justice. Bolh are 

widely reported. The variation between the two measures 

reflects the difference between how much crime touches 

individuals and how much of it must be dcalt with by the 

criminal justice system. It is particularly important for 

elected officials to know whether or not the crime ratc has 

increased: since 1981, it has not. It is equally important to 

acknowledge that because more citizens are reporting 

crime, the number of crimes handled by police and therefore by the criminal justice system has increased. 

The discrepancy between these two measures of 

crime shows how differing statistical approaches and data 

gathering methods can confuse policymakers. Gcncral 

government officials must sort through four categories of 

crime statistics. Each gives a different and incomplete picture, in part because of the nature of criminal activity. The 

Focus description of these reporting tools (page 13) is intended to provide guidance in approaching crime statistics, 

to explain why the FBI's UCR trend is the best measure to 

relate to criminal justice system growth, and to introducc 

standard terms used in distinguishing types of crime. 

Arrests. So far, this analysis of factors outside the criminal justice system, that is, population growth and increases in 

rcported serious crime, has accounted only for approximately 25 percent of the increase in the number of serious offenders. The rest of the increase is due to policy changes within 

the criminal justice system, some of which have been made 

directly by general government elected officials. 

The first action of the criminal justice system is to 

make an arrest. The number of arrests for serious Part I 

crimes increased 62.7 percent between 1973 and 1989, 

which is almost identical to the 63.5percent increase in the 

total number of Part I crimes reported (see Figure 1-5, 

page 13)." 

Although arrests for Part I1 offenses increased only 

57.9 percent since 1973,'* policies advocated by elected officials were influential in two leading areas-(1) a 117 percent increase in drug arrests, which has had an impact on 

prison populations, courts, and jails, and (2) an 83 percent 

increase in drunk driving arrests, with an impact on courts 

and jails (see Bble 1-1, page 14). 

US. Advisory Commission on Intergovernmental Relations 11 
Fig1rw 1-3 

Victimization Trends, 1973-1990 

(excluding murder and crimes against businesses; including unrcported crimes and some misdemeanors) 

H AllCrimes 

Household Crimes 

d 

10 v 

1973 1975 1977 1979 1981 1983 1985 1987 1989 

Years 

Source: “Criminal Victimization, 1990,” BJS Biilletiri, October 1991. 

Figirre 1-4 

Number of Index Crimes Reported to Police, 1973-1990 

i cnnn 

1973 1975 1977 1979 198 1 ’ 1983 1985 1987 1989 

YCdrS 

Source: U.S. Department of Justice, Bureau of Justice Statistics, Soiircebook of Crimittal Justice Sfafisfics, 1990. 

2 U.S. Advisory Commission on Intergovernmental Relations 
Focrrs 

Definitions of Crime 

me fmt m&r categoty is serious crimes reported to the 

police. This category is listed first because thcsc crimcs have 

the greatest impact on the criminal justice system. Thcy are 

referred to as “Part I” or “index” crimes. Rcports of thcir 

incidence are gathered as part of the FBI’s Unijbrm Crime 

Rqort. Index crimes are divided into two categories: violent 

crimes (murder and non-negligent manslaughter, rape, 

robbely, and aggravated assault) and property crimes (burglary, larceny, motor vehicle theft, and arson). All of thcse 

crimes are “felonies,” which are dcfincd in almost all statcs 

as crimes punishable by more than one ycar in prison. 

Therefore, increases in index crimes would relate most directly to increases in prison populations. 

A second category is crimes reported in the NCVS. ‘The 

survey was instituted in the early 1970s to estimate 

crimes against persons, both felonies and lcsscr crimcs, 

whether or not they have been rcportcd to thc policc. 

Unreported crimes, of course, do not affcct the criminal 

justice system, but they can havc a significant bearing on 

public confidence and the political impact of crime. 

Through repeated random surveys, the NCVS cstimatcs 

that over 35 million crimes against persons wcrc committed in 1989, but only 38 percent wcrc r~p0rtcd.l~ 

Given this estimate of the percentage of unreported 

crime, the fact that the UCR recorded 14.3 million scrious crimes reported to the police in 199014 is not out of 

line with the NCVS estimate of 34.4 million victimization~,~~ especially with sampling difficulties in houscholds located in high-crime areas and the fact that the 

NCVS does not include murder or crimcs against businesses. Thus, the fact that the UCR showcd an incrcase 

in crime while the NCVS did not can be explained by the 

NCVS’s own report that since 1973 there has been an 

incrcasc from 32percent to 38 percent in the percentage 

of crimes reported and confirmation by both the NCVS 

and the UCR that violent crime has not increased, while 

the large number of minor crimes covered by the NCVS 

has dccreased.16 

A third mqor category of crime is drug crime. Crime 

statistics do not include drug offenses because they are 

not committed against people who would report them 

cither to the police or in a survey. Drug crimes can be 

tracked only at the point of arrest. Therefore, govcrnmcnt officials need to be aware that they see only part of 

the picture when they look at crime statistics-rather 

than arrest statistics. The UCR does track arrests scparately, and this arrest report refers to drug crimcs and 

crimcs other than index crimes as “Part 11” crimes. 

A fourth category of crime is minor crimes that have a 

heavy impact on local jails, juvenile detention, and courts. 

Thcse minor crimes are termed “misdemeanors,” which 

are not punishable by a prison sentence. Misdemeanors 

include drunk driving, most domestic violence, and 

some types of gang activity, all of which havc had a hcavy 

impact on local government resources. Howcver, a high 

pcrcentage of these and other misdemeanors are unrcportcd, and, as with drug crimes, this fact nceds to bc 

kept in mind when looking at most crime statistics. Part 

I1 arrest reports do include misdemeanors along with 

non-Part I felonies, and at least 30 percent of the victimizations reported in the NCVS concern misdcmcanors. 

Figitre 1-5 

Estimated Arrests for Index Crimes, 1973-1989 

3500 

Total Crime Index h 

1973 1975 1977 1979 198 1 1983 1985 1987 198‘ 

Ycars 

Source: “Criminal Victimization, 1990,” BJS Biilleliii, October 1991. 

US. Advisory Commission on Intergovernmental Relations 13 
Table 1-1 

Arrests for Ten Most Common Part 11 Crimes in 1989 

and Percentage Change Since 1973 

Part I1 Crimes 

Percent 

1989 Change 

Driving under the Influence 

Drug Abuse Violations 

Simple Assaults 

Drunkenness 

Disorderly Conduct 

Liquor Laws 

Fraud 

Vandalism 

Weapons 

Stolen Property 

1,736,200 

1,361,700 

978,900 

822,500 

776,600 

657,300 

376,600 

307,800 

225,200 

176,800 

83 % 

117 

155 

-49 

8 

142 

164 

82 

45 

96 

Source: U.S. Department of Justice, Bureau of Justice Statistics, 

Sourcebook of Criiniiial Justice Statistics, 1990. 

As a result of the war on drugs in the last half of the 

1980s, 31 percent of 1989 prison admissions were for drug 

0ffen~es.l~ While drug arrests include misdemeanors, the 

same ratio of arrests to prison admissions as for Part I fclonies, all drug arrests must be included to approximate a 31 

percent admissions figure. 

Therefore, combining Part ‘I arrests with a\\ drug ar- rests produces an estimated 76.3 percent growth in arrests 

from 1973 to 1989, although the influence of drug arrests 

on the growth of prison populations has not been constant 

over the full period. The fluctuations in drug arrests is 

shown later in Figure 1-10 (page 18). 

Prosecution and the Decision to Imprison. Just as the 

commission of a crime is not necessarily followed by a report 

of the crime and the report is not necedy followed by an 

arrest, an arrest is not necessarily followed by a charge 

(prosecution), nor is prosecution necessarily followed byconviction, nor is conviction necessarily followed by a prison sentence. However, the decision to imprison has grown substantially faster than either arrests or reported crimes. 

While arrests increased only 76.3 percent from 

1973-1989, the ultimate decision to give a prison sentence 

increased 221.2 percent from 1974-1990, as shown in Figure 1-6.’O This extraordinary increase in court commitments to prison reflects a significantly tougher stance toward imprisonment due to sentencing laws passed 

primarily by state legislatures and to the exercise of court 

discretion, briefly described in the paragraphs that follow. 

Once a person is convicted of a felony, three factors 

determine whether he or she will serve time in prison. 

First, and increasingly important, sentencing laws enacted 

by the state legislature (or Congress for federal prisoners) 

may require imprisonment. Second, within ranges allowed 

by the law, the judge may exercise discretion. Third, the 

judge’s decision may be influenced by recommendations 

from the prosecutor and the defense, and by a pre-sentence 

report from a probation officer. 

400- 

300. 

200 

lo\ 0 

Figure 1-6 

New Court Commitments to State and Federal Prisons, 1974-1990 

Fedcral 

State 

1975 1980 1985 1990‘ 

Years 

federal estimated 

Source: U.S. Department of Justice, Bureau of Justice Statistics, Soirrcebook of Crin~inal Justice Sfutistics, 1991. 

14 U.S. Advisory Commission on Intergovernmental Relations 
Length of Time Served. The steep growth in prison 

populations also has been influenced by the length of time 

an individual spends in prison. This is the result of a chain 

reaction among the following four elements: (1) the 

length of the original sentence, as determined by lcgislators and the court; (2) good time and discretionary release 

policies, also prescribed by legislation; (3) mandatory 

emergency release policies to enforce a cap on the number 

of prisoners that may be held in a state’s prison facilities; 

and (4) the number of released inmates who violate parole 

conditions and are brought back to serve the remainder of 

their original sentences. 

The uneasy balance among these elements has varied 

in each state since the mid-1970s. The more prison space a 

state hasbuilt, in general, the more the balance has moved 

toward longer prison stays. However, on average, the increase has been less than 20 percent. 

This is a modest estimated increase, given that many 

states and the federal government passed numerous bills 

prescribing longer sentences. Typically, however, such legislation resulted in a level of overcrowding that forced 

some type of relief. Relief measures included (1) state legislation to provide more generous good-time credit, (2) 

state legislation placing a cap on the prison population, (3) 

slower intake of state-sentenced inmates from local jails; 

and/or (4) a federal court-ordered cap. To the degree that 

these relief measures led to less discrimination in parole, 

they in turn have contributed to the very significant 691.3 

percent increase in the number of prisoners returned for 

parole and probation violations, as shown in Figure 1-7. 

Admittedly, the sharp increase in the number of offenders being admittedheturned to prison to serve the remainder of their sentences also could reflect tougher enforcement of probation or parole conditions and more 

serious violations being committed by people on probation 

or parole, as well as relatively indiscriminate emergency 

release measures necessitated by overcrowding. Whatever the reasons, the number of probation and parole violators admittedkturned to prison grew from less than 10 

percent of the admissions in 1974 to 28.2 percent in 1990. 

Impacts on Other Elements 

of the Criminal Justice System 

Besides tracing reasons for the growth in the number 

of prison inmates, the foregoing analysis also touched on 

growth affecting other parts of the criminal justice system. 

Increased reporting of crime by citizens, along with more 

police and investigative tools, which led to more arrests, 

incrcascd the caseloads of jails, forensic laboratories, prosecutors, public defenders, and judges. Caseloads grew even 

more dramatically with the increasing proportion of arrests 

being prosecuted. Recent increases in violent crime and drug 

arrests have intensified these post-arrest impacts further 

while also straining police and shenff departments. 

Jails. The growth in jail populations has been even 

greater in some localities than the growth in state prison 

populations. A discussion of local jails warrants special attention because they are affected by, rather than having 

much effect on, the rest of the criminal justice system. A 

jail (or a lock-up where this is a separate municipal facility) 

must receive arrested individuals. If the prosecutor decides to press charges, the county jail must continue to 

I;igLi/E 1-7 

Parole, Probation, or Other Conditional Release Violators Admitted/Returned to Prison, 1974-1990 

1974 1976 1978 1980 1982 1984 1986 1988 199( 

Years 

Source: U.S. Department of Justice, Bureau of Justice Statistics, Sourcebook of CJiininal Justice Statistics, 1991. I 

U.S. Advisory Commission on Intergovernmental Relations 15 
Figure 1-8 

Average Daily Population of Jail Inmates, Selected 

50

Years, 1978-1990 

I 

400- 

300- 

200- 

- 

1978 1983 1988 1990 

Source: US. Department of Justice, Bureau of Justice Statis- tics, “Jail Inmates, 1990,’’ BJS Bulletin, Junc 1991. 

hold those whom the court magistrate will not rclcase bn 

bail until all the court-related officials arc rcady to act. 

The jail, then, keeps those who are Sentenced to prison 

until the official court records are complcted and the state 

accepts the prisoner. In addition, the jail holds misdcmeanor offenders sentenced to jail time. 

Figure 1-8 shows a 158 percent incrcase in thc avcragc 

daily jail population between 1978 and 1990. The avcrage 

annual increase in jail population was the samc as in prison populations during much of the 1980s, although thcre 

were greater swings from year to year. Record growth 

rates of over 15 percent were reported in 1988 and 1989. 

However, jail populations grew only 5.9 percent in 1990 

due in part to the fact that there were 17 percent fewer 

state inmates awaiting transfer.21 

Although the size of both jail and prison populations 

reflects increases in reported crime, general population 

growth, and changes in arrest policies (particularly drug 

arrests), jail populations in particular are affected by court 

backlogs and pretrial release policies. From 1983 to 1989, 

the percentage of those in jail awaiting trial grew from 39.9 

percent to 42.6 percent.22 State prison overcrowding has 

increased the number of prisoners continuing to be held in 

local jails in at least three states by 20 to 30 

Public Expenditures. For many general government 

elected officials, the most crucial aspect of the changes in 

criminal justice is growth in state and local expenditures. 

There are three ways to view this growth: How much has 

criminal justice spending grown relative to other public 

programs? Have all areas of criminal justice spending 

grown equally? Have funding requirements affected some 

governments more than others? 

Table 1-224 indicates that spending on corrections increased faster than any other area of public spending bctween 1970 and 1990. Although per capita expenditurc on 

corrections is a small fraction of state and local expenditurcs 

on education or on welfare and health, many general government elected officials view corrections as eating up discretionary dollars for more constructive-or simply more 

politically popular-initiatives. The 20-year shift in per capita state and local spending also reveals a much greater increase in spending for corrections than for police or courts. 

Figure 1-925 illustrates the significant differenccs in 

the growth of criminal justice own-source funding among 

states, counties, municipalities, and the federal govcrnmcnt. The former dominance of municipal spending for 

police has been overtaken by state funding for criminal 

justice necds. Between 1973 and 1990, total state funding 

(own-source direct expenditures and intergovernmental 

assistance to localities) increased 759 percent, pushing the 

state share of criminal justice funding from 24.2 percent to 

36.5 percent of the total. County own-source funding increased 491 percent, changing its share only slightly from 

20.1 pcrcent to 20.9 percent. In contrast, municipal 

own-source funding increased at half the rate of state spcndTable 1-2 

Per Capita Spending by State and Local Governments on Major Programs, Selected Years, 1970-1990 

Percent 

Governmental in 1985 Constant Dollars Change 

Per Capita Spending 

Functions 1970 1975 1980 1985 1990 1970-1990 

Education $7 10 $807 $824 $807 $934 32 % 

Public Welfare 209 268 292 300 374 79 

Hospital and Health Care 148 182 193 208 253 71 

Police Protection 70 83 82 88 104 49 

Corrections 25 32 38 54 83 232 

Court Related na na na 34 48 na 

Highways 247 204 189 189 207 - 16 

Source: Compiled from US. Department of Comnicrce, Bureau of the Census, Governnrent Finances (various years). 

16 U.S. Advisory Commission on Intergovernmental Relations 
Figirre 1-9 

Own-Source Funding, by Government, as a Percentage of Total Criminal Justice Spending, 1973 and 1990 

50 

40 

30 

20 

10 

0 

Police m Corrections 0 Judicial & Legal Services 

24.2% 

36.5% 

m.196 20.9% 

1973 1990 

State 

I I 

1973 1990 

County 

38.4% 

I II I 

1973 1990 

Municipal 

17.3% 

1973 1990 

Federal 

Source: ACIR computation from U.S. Department of Justice, Bureau of Justice Statistics, Justice Expenditure and Employment 

in the US., 1990. 

spending, 330 percent, causing its share to drop from 38.4 

percent to 29.0 percent. The increase in federal funding 

(345 percent) also was only half the increase in state funding, due in large part to cuts in federal intergovernmental 

assistance, dropping the federal share of total criminal justice spending from 17.3 percent to 12.6 percent. 

In addition to a drop in federal intergovernmental assistance from 27.0 percent of federal expenditures in 1973 

to only 7.2 percent in 1990,26 Figure 1-10 (page 18)” illustrates differences in the growth of criminal justice system 

functions, causing state, county, municipal, and fcdcral 

spending shifts. Growth in prisons and jails funded by 

states and counties exceeded growth in police budgets. 

The high state funding increase also reflects mcrgcr of 

county and municipal courts into some state systems in the 

late 1970s and early 1980s. Finally, although it is not apparent in Figure 1-10 (page 18), by the mid-l980s, growth in the 

number of crimes being tried as federal offenses and fcdcral 

sentencing reform resulted in a 1985-1990 growth in dircct 

federal expenditures almost equal to the continued growth 

in direct state expenditures. 

Expenditures on criminal justice agencies are only part 

of what is spent on fighting crime. This point can be made for 

all governments, but it is especially true for local governments, which bear the costs of targeted prevention mcasures, such as street lights and youth recreation and jobs 

programs, as well as for increasing the effectiveness of 

general education, treatment, and social welfare programs. 

Furthermore, using averages to trace intergovernmental and other shifts in criminal justice spending masks 

two significant factors. First, spending for police in large 

cities increased significantly faster than in other municipalities, although this higher rate of growth is still less than 

growth in corrections, which is funded by states and counties. 

Second, a larger proportion of county budgets than of 

state budgets is consumed by criminal justice costs; therefore, counties may experience greater fiscal stress from 

growth in their criminal justice spending. In 1985, on average, 13.1 percent of county spending was for criminal justice, compared to only 5.4 percent of state spending and 

10.0 percent of municipal spending.28 The drop in the proportion of county budgets needed for education as the 

baby boom passed through school age, and as states have 

played a stronger role in school finance, has been more 

than made up by the growth in criminal justice spendingB 

Furthermore, as with large cities, county averages mask 

the reality that criminal justice spending in urban core 

counties far exceeds that in other counties. Finally, the 

National Association of Counties points out that census 

data often include county spending under city spending in 

reporting on some of the nation’s largest cities. 

The foregoing discussion from the perspective of the 

states, counties, and large cities about who is hit hardest by 

increasing criminal justice costs sets the stage for looking 

at intergovernmental policies and funding in later sections 

U.S. Advisory Commission on Intergovernmental Relations 17 
3 

5 

E 

a 

W 

60- 

50- 

40- 

30- 

20- 

10 - 

0% 

Figlm? 1-1 0 

Comparison of Criminal Justice Direct* Expenditures by Function, 1973 and 1990 

I 

58.9% 

33.7% 

h9 Municipal 

County 

m State 

0 Federal 

1973 1990 

Police - ~~ 

* Includes intergovernmental aid received. 

1973 1990 

Corrections 

11.0% 

uu 

1973 1990 

Prosection, 

Public Defense, Other 

12.1% 12.6% 

1973 1990 

courts 

Source: ACIR computation from U.S. Department of Justice, Bureau of Justice Statistics, Justice Expenditure and Employmeut 

in the US., 1990. 

of this report. It also invokes the adage: crime may not pay, 

but taxpayers sure do. 

Harbingers of Future Trends 

in Criminal Justice 

The criminal justice trends of the last decade and a 

half can be expressed in one word: growth. This growth has 

not been the result of any one factor, but of many com- pounded elements: increased citizen reporting of crime, 

more capable and aggressive law enforcement, tougher 

prosecution, harsher sentencing laws and decisions, and, rccently, increased crime rates. General government elected 

officials have alternatively championed tough policies and 

been appalled at the rising costs and disappointing results. 

More passionate characterizations describe the 

growth in criminal justice in the last 15 years as being of 

crisis proportions (whatever adjectives are used). It is notable that such crisis-type descriptions began appearing a 

decade ago. The concern is that by the end of the 1990s, 

these characterizations may be even more applicable. 

This report discusses initiatives to control the impacts 

of growth through coordination, management, and programming. A realistic view of how much criminal justice 

demands might be reduced, even if these initiatives were 

fully operative, however, requires an assessment of future 

pressures on the criminal justice system. The subsections 

that follow outline major harbingers of continued growth: 

age demographics, the “war on drugs,” increased violent 

crime, use of aiternative sanctions, urban core demographics, and public attitudes. 

Age Demographics 

An almost perennial hope has been that a large part of 

the growth in the criminal justice system was a result of the 

baby boom, and that after this generation (born between 

1945 and 1964) moved through the prime crime age (15 to; 

39, growth would moderate or even decline. By this reasoning, 1980 should have been a peak year for crime rates. 

However, not only have all areas of criminal justice re 

corded unprecedented growth rates each year since 1980 

the rates of growth also grew steeper after 1986. 

The hope that the aging of the baby boom generatio 

would relieve pressure on the criminal justice system has n 

materialized for several reasons. First, the baby boom neve 

ended among residents of the most economically distrcssc 

big-city ghettos.30 For criminal justice, the total size of tk 

prime crime age population is less important than the size I 

the sub-populations in this age group who are most likely ’ 

commit crime and to be arrested and in~ar~erated.~~ 

Second, on average, older criminals commit more s 

rious crimes. Further, the older the criminals, the moi 

likely that they are repeat offenders and will serve long( 

~entences.~~ Half of the U.S. prison population in 1986 wa 

over age 28, two years older than in 1979;33 in 1991,23 pe~ 

cent were aged 35-45, compared to only 14 percent ir 

18 US. Advisory Commission on Intergovernmental Relations 
1979.3' Half of the federal prisoners in 1990 wcrc ovcr age 

35.=Aging also is apparent in local jail populations. Ncarly60percent of jail inmates were between age 25 and 44 in 

1989, compared to only 51 percent in 1983.36 

Third, the traditional definition of thc prime crime 

agecategory, 15 to 35, may have to be extcndcd. Thc common public perception is that the typical arrcstcc is about 

20 years old. In reality, in 1989, the average arrcstec was 

almost 29.37 

Finally, even as the baby boom gencration agcs beyond the prime crime age, the childrcn of early baby 

boomers-referred to as the baby boomlet or echo 

boom-are entering that age group. The beginning of 

baby boomlet criminal activity can be seen in the continuingincrease in arrests of offenders under age 15, whichbegan in 1987, and under age 18, which began in 1989.3s Since 

the 1980s did not produce the lull in criminal justice systcm 

growth that would have been predicted from age dcmographics alone, if other factors leading to that growth are 

not changed, demographically we can expcct new hcights 

in criminal justice activity toward the cnd of the 199Os, 

pushed by the baby boomlet. 

The War on Drugs 

No other area of criminal justice has been as volatile 

as the response to drug offenses. Figure 1-11 shows a dccline in drug arrcsts between 1976 and 1982, followed by 

modest incrcases until drug arrests exploded in 1987,1988, 

and 1989.39 The doubling of the number of drug arrests 

since 1984 was compounded by an almost three-fold 

incrcase in the likelihood of a prison sentence for a drug 

conviction. In 1981, 24 drug offenders were admitted to 

state prisons for every 1,000 arrests; in 1989, the number 

was 70 per 1,000 arrests.40 

Given this volatility, it is too soon to judge whether 

the 14.0 pcrccnt decrease in drug arrests during 1990 is a 

harbinger of relief for the criminal justice system in the 

1990s. At least for the moment, it has produced news reports that some local jail populations and court caseloads 

have dropped sharply because fewer drug arrestees are 

being held for trial.4l 

However, any relief to prison populations will not be 

sccn until inmates serving sentences on drug charges are 

rclcascd. Whclhcr this relief will last depends on whether 

past law cnforccmcnt efforts have dismantled drug rings 

or simply disrupted the trade temporarily. For those serving 

timc on drug charges, future arrests also may depend on the 

efficacy of drug treatment efforts. In 1991, an estimated 22 

pcrccnt of prison inmates were convicted of drug ofcnses, 

compared to 13.2 percent in 1985 and 6 pcrcent in 1979.42 

Optimistic projections that drugs may be less of a 

problem in criminal justice in the 1990s are drawn from recent surveys showing (1) a decline in hospital emergency 

room drug deaths and drug overdose cases, (2) the lowest 

Figwe 1-1 1 

Total Estimated Arrests for Drug Violations, 1976-1990 

1976 1980 1985 

Ycars 

I Source: U.S. Department of Justice, Fcdcral Bureau of Investigation, Unijiotn~ Crime Reports, 1976-90. 

1990 

US. Advisory Commission on Intergovernmental Relations 19 
level of drug use among high school seniors in 15 years, 

and (3) a 44 percent drop in self-reported monthly 

household drug use from 1985 to 1990.43 Many observers 

take exception to an optimistic interpretation of these 

data, at least as far as criminal activity is concerned, because the surveys do not include high school dropouts, 

prisoners, or individuals who are not from established 

 household^.^^ Casual drug use may be decreasing, but 

hardcore drug use is seen as a major continuing problem 

for the criminal justice system. 

If the substantial reduction in drug arrests reported 

in 1990 does not hold, the criminal justice system will have 

to continue to cope with inundated court dockets, jails, 

and prisons. For example, in 1989, one in every five men 

and one in every three women in jail was there for a drug 

offense, compared to only one in ten of all jail inmates in 

1983.45 The situation in state courts parallels that reported 

for the federal court system, in which criminal filingsfueled by a 280 percent growth in drug cases-outpaced 

civil filings in the 1980s.& In 1991, more than one in five 

prison inmates were serving time for a drug offense, compared to approximately one in 20 at the beginning of the 

1980s. Thirty-one percent of new prison admissions in 

1991 were for drug 0ffenses.4~ 

Violent Crime 

Whatever happens with drug arrests in the 1990s, the 

drug trade of the 1980s spawned other sources of 

long-term pressure on the criminal justice system. The 

1980s drug trade was distinguished, first, by its level of violence, fostered in part by the fact that most of the current 

drugs of choice produce an aggressive rather than a passive physiological response, and by the increased firepower of the weapons used. Second, as never before, organized crime has used juveniles in its drug operations. 

Juveniles are recruited as young as age 10 and are often 

using high-powered weapons by their mid-teens. These 

guns and individuals with the inclination to use them will 

be on the streets for years to come. 

Increased juvenile violence is documented in the 

number of murder arrests of suspects under age 18, which 

increased from 1,100 in 1982 to 2,331 in 1990. This pattern 

of increasing violence among the next generation of adult 

criminals is further demonstrated by the shift from burglary (generally defined as breaking into an unoccupied 

premises) to robbery (which involves the use of force or 

threat of force against a person). From 1982 to 1990, while 

juvenile burglary arrests decreased 40 percent, robbery arrests increased 30 percent. Offenders under 18 now account for one-fourth of all robbery arrests!' 

In addition to the prospects of a new generation of 

even tougher criminals operating in the 1990s and beyond, 

significant increases in violent crime are occurring currently. During the 1980s, UCR property crimes increased 

only 4.9 percent, while the growth in violent crime was 

33.7 percent. Contrary to popular perception, increased 

murder rates have contributed to, but have not driven, this 

increase in violent crime.@ The growth in violent crime, 

therefore, is more pervasive than just the fact that higher 

murder rates reflect an increasing number of deaths, as 

opposed to woundings, because of the firepower of the 

guns being used?O 

Finally, most of the increase in violent crime came in 

the last half of the 1980s: in 1986, violent crime increased 

12.1 percent; in 1987, it decreased 0.3 percent, only to rise 

5.5 percent in 1988,S.l percent in 1989, and 10.6 percent in 

1990. This pattern of increasing crime has left elected officials especially frustrated because it has come in the face 

of more than a decade of funding and policy decisions to 

fight crime through unprecedented rates of arrest, prosecution, and incarceration. 

Probation and Parole 

The escalating costs of keeping persons in jail or prison and the signs that more and longer imprisonment have 

produced only limited results in reducing crime have 

caused policymakers to take renewed interest in punishment options. However, although it is as accurate in 1990 

as it was in 1980 to say that three-quarters of the sentenced 

offenders in the United States are under supervision in the 

communifY,s1 a sisruficant shift occurred during the 1980s 

that may portend increased criminal justice problems. 

First, it is important to clarify the difference between probation and parole. Probation is ordered by a 

judge as a sentencing alternative to jail or prison, and, 

generally, is used for offenders who are not judged tobe 

serious criminals. In contrast, parolees have an offense 

record serious enough to warrant at least some prison 

time, and parole refers to the release of an inmate be- fore the end of the maximum prison sentence stipulated 

by the judge. Parole is granted by a state executive 

branch authority, and has been used to encourage ac- ceptable behavior by prison inmates. (Only rarely is a 

parole system established for jail inmates.) 

The status of the more than four million adults under 

the care or custody of a correctional agency on a given day 

in 1990 is showen inTable 1-3.52As noted, the total proportion supervised in the community changed little during the 

1980s, but this is because there were more emergency prison releases, triggered by overcrowding in several state systems, rather than because of the use of probation as a sentencing option. 

Not surprisingly, as the use of probation began falling 

off by the end of the 1980s, the use of prison and jail sentences increased (see nble 1-4).53 

Table 1-3 

Status of Adults under Correctional Control, 1990 

1990 

Supervised in the Community 73.6% 

Probation 61.4 

Parole 12.2 

Jail 9.3 

Prison 17.1 

Incarcerated 26.4% 

20 U.S. Advisory Commission on Intergovernmental Relations 
Table 1-4 

Probation, Jail, Prison, and Parole, 

Average Annual Percentage Increase, 

1983-1978 and 1987.1990 

Average Average 

Annual Increase Annual Increase 

1983-1987 1987-1990 

Robation 

Jail 

Prison 

Parole 

9.2% 

7.4 

7.4 

10.1 

5.9% 

11.4 

9.8 

14.4 

It is possible that heavy use of probation during most 

of the 1980s-especially without general government 

funding for commensurate increases in staffing for supcrvision%-led more offenders to continue their criminal 

activity. As the offender’s record grows, at some point the 

court is forced to impose a prison sentence. In fact, 93 pcrcent of state prison inmates are either repeat offenders or 

convicted violent offender^.^' Judges and prosecutors also 

may have become disillusioned with the efficacy of probation, leading to a decline in its use beginning in 1987. 

Between 1977 and 1985, state governments raised the 

proportion of their total corrections spending for institutions from 76 to 84 percent, thereby lowering the percentage for probation. County governments raised thcir 

spending for institutions from 70 percent to 80 percent.56 

If, indeed, this lagging rate of funding increases for 

probation created a cycle of relatively less dependence on 

alternatives to incarceration, state and county governments face a double funding hit to reverse this cycle in the 

1990s. At the same time that more funds must be found for 

prisons and jails because alternatives are used less frcquently, the alternatives also must be funded at levels that 

will produce confidence in their effectiveness before general government officials can hope to see any commensurate reductions in incarceration costs. 

The Demographics of Crime 

A key to intergovernmental issues in criminal justice 

is recognition of the fact that crime is Concentrated in core 

urban areas. (’The phrase “core urban area” is used to underscore the fact that counties as well as cities provide 

criminal justice services to people in the inner cities.) Not 

only has this concentration of criminal activity has been 

true historically, but crime ratesare increasing more in urban cores than in the rest of the nation. This is a crucial 

trend. Overall criminal justice growth will not be reduced 

in the 1990s unless crime is reduced in the jurisdictions 

where it is concentrated. 

There are ample statistics to document the concentration and growth of crime in core urban areas. These statistics demonstrate that the impact of crime on citizens depends on where they live and that it is the concentration of 

poverty rather than of racial minorities in urban cores that 

produces the correlation to crime. In 1989, one in 59 urban 

households had a member who was the victim of a robbery, 

compared with one in 133 suburban households, and only 

one in 280 rural households. However, while black household victimization has increased sharply since 1985, led by violent crimes of robbery and aggravated assault,5’ poor whites 

have about the same homicide rate as poor blacks, and 

wealthy blacks about the same rate as wealthy 

Figure 1-12 (page 22)59 further demonstrates the significant differences in reported crime, particularly violent 

crime, between urban, suburban, and rural jurisdictions. 

The graph also indicates income differences between jurisdictions. 

To appreciate the relationship of crime to urban poverty, it is important to look at the income disparity that lies 

behind the average income figure for major cities. This income disparity has been the focus of research on “impacted ghettos,” which are defined as census tract groupings that have high rates of male unemployment, welfare 

dependency, female-headed households, and school dropouts. Using this uniform definition, it was discovered that between 1970 and 1980 the number of impacted ghettos in Philadelphia, Chicago, Baltimore, Los Angeles, and other large 

metropolitan areas increased by 100 percent or more.M’ 

It is highly probable that an extension of this research 

would show that the proportion of core urban areas covered by impacted ghettos continued to grow between 1980 

and 1990, since the 1990 U.S. Census showed that income 

disparity continued to increase. The fact that income disparity continued to widen in the 1980s may be particularly 

forcboding for the 1990s because the number of people in 

poverty should have fallen during the 1983-1989 cycle of 

economic recovery.61 

Impacted ghettos account for an extraordinary 

amount of criminal justice activity and costs. For example, 

in 1980, an estimated 6 percent of the residents of Chicago’s impacted ghettos were under some form of corrcctional supervision.62 In 1989, Baltimore residents made up 

over half the state prison population and 70 percent of its 

juvenile even though the city comprised only 15 pcrcent of the state’s population. Urban cores nationwide have 

this same disproportional impact on state, county, city, and 

federal criminal justice agencies and government budgcts. 

The intergovernmental challenge of this disproportionate criminal activity is further underscored by the diffcrence in the response of local governments to crime depending on their size. Comparisons of the 3,123 counties 

and county equivalents reveals that the 75 largest countics 

with populations over 600,OOO accounted for 54 percent of 

reported crime but only 47 percent of all state felony convictions in 1988, while the 2,650 counties with less than 

100,000 population accounted for just 16 percent of reported crime but 38 percent of state felony convictions.6J 

These differences in the response to crime between 

urban and non-urban areas can lead to a chicken-or-egg 

discussion: Has the lack of response produced increased 

U.S. Advisory Commission on Intergovernmental Relations 21 
Figure 1-12 

Comparisons of Reported Major (UCR) Crimes, Violent Crime Index, and Median Family Income 

Relative to National Averages for Major Cities, Suburban Counties and Small Cities, and Rural Counties, 1989 

Major Cities Cities Small Cities Rural 

1 million + 50,000 + Suburban CouRties Counties 

Source: ACIR compilation from U.S. Department of Justice, Federal Bureau of Investigation, Uniform Cri177e Repom, 1976-90; 

and US. Department of Commerce, Bureau of the Census, Money Iticoriie of Households, 1988 and 1989, 

crime, or has criminal activity had such an impact on urban 

criminal justice systems and depleted their fiscal resources that they cannot respond as effectively as less impacted non-urban systems? Wherever the answer lies, the 

intergovernmental import is in the fact that at the cnd of 

the 1980s, the growth in crime in the 75 largest countics 

was twice that of the nation as a 

Finally, it would be hard to overstate the govcrnmcntal and societal challenge of the concentration of criminal 

activity in core urban areas. The fact that 5 pcrcent of the 

total population of many major cities is currently under 

some form of correctional control under-estimates the 

problem. This statistic does not include thosc who have 

previously been convicted of a felony. Even more significant, if the proportion under correctional control is cxpressed as a percentage of males in the prime crime age 

rather than as a percentage of total population, a much 

starker picture emerges: The challenge of crime in our 

core urban areas in the 1990s means dealing with at least 

one in every three males between the ages of 15 and 35." 

Public Opinion 

Finally, public opinion influences the magnitude of 

the criminal justice challenge. Although education can 

modify public opinion, general government officials must 

balance their ability to lead the public with their need to 

represent the public. 

The climate of public opinion defines the starting 

point for general government elected officials to influence change. There were several notable shifts in public 

opinion on the criminal justice system during the 1980s. 

Some of these shifts can be regarded as harbingers of reduced pressure on the criminal justice system: 

The view that harsherpunishment is the most important way to help reduce crime was held by only 

24 percent of Americans in 1989, compared to 38 

percent in 1981.67 

Givcn two options in a 1989 survey, only 32 perccnt 

agreed that improved law enforcement is the way to 

lower crime, compared to 61 perccnt who rcspondcd that additional moncy and effort should 

go to attacking the social and economic problems 

that lead to crime.a 

A majority still believes that crime is increasing, 

although the proportion has dropped from 68 

percent in 1981 to 55 percent in 1991. There also 

has been a drop from 48 percent to 38 percent in 

those who report they personally feel more uneasy 

on the street than they did the previous year.69 

There are at least equal indications that the public 

still retains a strong determination that crime must be 

dcalt with forcefully: 

Different polls from the one cited above report 

that 84 percent believe there is more crime than 

there was a year ago,70 and 62percent believe that 

crime will get worse in the next 10 years.71 

B 

22 U.S. Advisory Commission on Intergovernmental Relations 
In a 1989 survey, only 25 percent expressed confidence in the ability of the courts to convict and 

properly sentence criminals.72 

Tougher criminal penalties for juveniles were favored by 79 percent in another 1989 survey, with 

72 percent agreeing that lenient treatment of juvenile offenders by the courts was to blame for 

teenage violence. These views on the responsibility of the criminal justice system were only slightly 

behind views on the responsibility of the home.73 

The public is willing to continue spending in order to reduce crime. There was no shift from 1981 

to 1990 in the belief of a large majority of the public (70 percent) that too little is being spent on 

halting the rising crime rate. However, the percentage who also believed too little is being spent 

on dealing with drug addiction did increase from 

59 percent to 64 percent, and there was a significant increase from 52 percent to 71 percent in 

those who thought too little was being spent on 

improving the nation’s education 

The age, racial, and regional differences evident in publicopinion polls on crime help explain some of the variations 

between state Criminal justice systems and the divergcnce 

that emerges in local and national public policy dcbates. 

People over age 55 have more confidence in the police 

and less confidence in the courts. Also, they arc slightly 

more apt to favor harsher penalties, but they are not as 

convinced as younger respondents that crime will get 

worse in the next 10 years. While these trends are consistent, older citizens’ opinions differ only about 5 percentage points from national averages.75 

Racial attitudes about crime as shown in the polls are 

more divergent. Blacks rated reducing unemployment as approximately twice as important in reducing crime as did 

whites (20 percent versus 9 percent), while whites wcre twice 

as apt as blacks to cite harsher punishment (26 percent versus 13 percent).76 Blacks gave significantly more weight to 

drugs as the most important problem facing the country and 

to cutting the drug supply as a way to reduce crime.77 As reported in 1989, blacks’ confidence in the police to protect 

them from crime was only slightly less than for 

Regionally, the polls show citizens in the South as being (1) most concerned about crime and drugs, (2) more 

afraid to walk alone at night, (3) more pessimistic about 

crime rates in the next 10 years, and (4) more inclined to 

spend money on law enforcement than on attacking social 

problems to fight crime. In 1989 polls, more citizens in the 

South and West than in the Midwest or Northeast believed crime had gotten worse that year.79 

Finally, public perception does not reflect the difference between crime rates in urban core areas versus suburban and rural areas. In June 1989,57 percent of largecity respondents said there was more crime compared to 

the previous year; however, 52 percent of suburban residents and 48 percent of rural residents responded in the 

same way. This stands in contrast to the fact that, between 

1986and 1989, the percentage of urban householdsvictimized by crime of any kind rose from 28 percent to 31 percent, while that for rural households fell from 20 percent 

to 17 pcrcent. All participants in the 1989 poll were sure that 

the growth in crime in the U.S. as a whole was greater than 

in their area, but rural and suburban residents have a stronger feeling of increasing crime than do large-city residents 

(89 percent, 82 percent, and 81 percent, 

Public perceptions can change. Attitudes about drugs 

are the prime example. Those citing drugs as the biggest 

factor in crime has grown from only 13 percent in 

1981-when unemployment was cited most often by 37 

percent-to 58 percent in 1989.81 The danger is that if the 

public dialogue does not encompass broader knowledge of 

criminal justice issues, public support will readily turn to 

more popular issues, leaving a residue of reactive opinion 

about crime. Again, the issue of drugs provides a prime ex- ample: The number of people citing drug abuse as the most 

important problem facing the country rose from 2 percent in 

1985 to 38 percent in 1989 only to drop rapidly to 11 percent 

in 1991.82 The challenge to government officials is to exert 

leadership in maintaining informed public opinion. 

Summary 

There is not one chain reaction in the criminal justice 

system, but multiple chain reactions. Law enforcement is 

affected by citizen willingness to report crime as well as by 

the incidence of crime; the court system and local jails are 

affected by prosecution rates, as well as by arrest and 

crime rates; and prisons and jails are affected by conviction 

rates, length of sentences, and use of probation and parole, as well as by the crime, arrest, and prosecution rates. 

The execution of policies within each component of the 

system can be affected by the weight of public opinion. Finally, decisions made by general government elected officials regarding funding, program direction, and sentenc- ing both spur and arc driven by these multiple responses. 

Since the mid-l970s, these multiple reactions have resulted in unprecedented rates of growth, perhaps to crisis 

proportions. In the 199Os, the issue is: Will there be any 

downturn? The most hopeful sign is that in 1991 the 

United States experienced the lowest annual percentage 

increase in prison population since 1984. Nevertheless, 

this growth still represented a 6.2 percent annual increase, 

and in 20 states growth was equal to or higher than in 1990. 

The budget impact of this growth alone translated into the 

need for 900 new prison beds every week nationwide, in 

addition to costs generated by commensurate growth in 

jail, probation, parole, court, and police activitie~.~~ 

Therefore, we cannot ignore recent harbingers of 

even greater pressure on the criminal justice system in the 

1990s. The passage of the baby boom through the prime 

crime age has not provided relief. Increasing numbers of 

juveniles are committing serious crimes. Violent crime 

has risen significantly in all offense categories, not just 

homicides. The use of probation as a sentencing option is 

no longer keeping pace with the growth in incarceration. 

The criminal justice challenge of America’s core urban areas continues to expand its demands on city, county, and 

state budgets. And the public’s willingness to consider using non-criminal justice means to fight crime is heavily 

U.S. Advisory Commission on Intergovernmental Relations 23 
tempered by strong expectations that the criminal justice 

system also will be adequately financed and perform effectively to deter criminal activity. 

FUNDAMENTAL 

INTERGOVERNMENTAL ISSUES 

The criminal justice system occupies a unique position 

compared to functions that are within the usual day-to-day 

purview of general government elected officials. First, it 

rests on the constitutional separation of powers between the 

judicial, legislative, and executive branches, each with its 

separate authority to establish and carry out criminal sanctions. Second, in determining individual guilt, criminal justice is grounded on the checks of an independently selected 

judge, prosecutor, sheriff, and clerk of court. Third, in most 

jurisdictions, these criminal justice officials interact with po- lice departments, the public defender, forensic services, pretrial services, a parole board, probation department, and 

prison system, which are separately authorized by municipal, 

county, state, or federal governments or by the judiciary. Finally, criminal sanctions and prevention efforts need to involve education, substance abuse, employment, and other 

general government agencies. 

Therefore, intergovernmental considerations go beyond simple analysis of the roles and responsibilities of 

state, county, municipal, and federal governments. Interbranch and interagency relations are equally important to 

achieve the coordination and interaction required for a 

more productive criminal justice system. 

Bridging Disparate Sources of Authority 

As repeatedly affirmed by the more than 100 criminal 

justice and general government officials who participated 

in interviews and focus group discussions for this report, 

the traditional isolation of the criminal justice system and 

of officials within the system is a major obstacle. The following admonition to a conference of legislators and 

judges bluntly states the need to challenge that isolation: 

I don’t lie awake at night wonying about the separation of powers. . . . I do worry about government 

that can’t cope, about government that wastes time 

and energy and basic human intelligence when its 

various agencies operate more as competitors than 

as colleagues. I don’t worry about a judge giving a 

legislator the benefit of his judicial experience in 

suggesting refinements in a law-or amendments 

to a pending one. That may bother the legislator, 

but it doesn’t bother me. After all, the executive 

branch in most states isn’t at all shy about telling the 

legislature how things should be d0ne.8~ 

While the preceding quote uses an example of how 

criminal justice officials should work to bridge the gap, it is 

equally critical for general government officials take the initiative. A particularly cogent expression of the role that mus 

be played by chief executives was made on behalf of the Na 

tional Governors’ Association by the governor of Nevad: 

who also had the perspective of a criminal justice official: 

As a former eight-year district attorney and now as 

a sitting Governor, I can tell you that the criminal 

justice system remains relatively autonomous. They 

operate much like an island, separate from normal 

governmental controls. Someone has to ensure that 

the major elements of state government work together. . . even the criminal justice system. Governors are in the best position to assume the initiative. 

But we need [local] help and cooperation. Strong 

leadership at all levels of government is a must. . . . [Tlhe only way to go is one of an overall wellbalanced intergovernmental eff0rt.8~ 

State legislators, county commissioners, city counc 

members, and members of Congress do not have the Sam 

personal command of resources as their government’ 

chief executive. However, they often have the advantag 

in long-term service. Particularly, if they specialize in on 

area of criminal justice, lawmakers can initiate comprc 

hensive efforts and can hold agencies responsible in fL 

ture years for explaining how they are carrying out th 

goals of legislative policy. 

The focus study summarizes additional factors that ir 

fluence the relationship among criminal justice and ger 

era1 government officials. It tends to confirm that const 

tutional concerns about separation of powers are less of 

problem than each player’s source and use of authorii 

and power. Differences in authority, responsibility, pe 

sonal autonomy, and the personalities that these diffe 

ences sometimes foster can be overcome. The key is fc 

government leaders to recognize the roots of the resi 

tance, make necessary accommodations, and not be dc 

terred by traditional reasons for isolation. 

State-Local Relations: 

Defining Responsibility 

The division of state and local criminal justice rl 

sponsibility varies widely, and in many states, budgc 

pressures have created controversy over how it is dctc 

mined. The state legislature, often backed by the gove 

nor, defines criminal acts punishable by a prison sei 

tence. These same elected officials raise the taxcs I 

fund the prison system, but often they play only a mini 

role in funding the costs of trying the case, supervisir 

those awaiting trial, or making arrests. 

County and city officials have used the constitution 

basis that criminal eases are brought in the name of ti 

State v. (Defendant) to challenge their state to play 

greater role in supporting criminal justice functions. Sta 

elected officials, in turn, may not only feel constrained1 

lack of funds, but point to effectiveness of communit 

based programs for many classes of offenders. It also m8 

be pointed out that level of law enforcement reflects in( 

vidual community standards and that local taxpaye 

should fund increased police presence and prosecutior 

24 U.S. Advisory Commission on intergovernmental Relations 
Focus 

Empowerment of Officials to Address Criminal Justice Problems 

Efforts to shape criminal justice policy and deal with 

system impacts should take into account that not all participants are able to participate in policy discussions on 

an equal footing and that their incentives for change will 

dEer. The following brief sketches stress how differently each official in the typical state-local criminal justice 

system came to the respective position, the degree of independence, and the source of power. 

General government elected oflcials must be consciousof thewill of 51 percent of the voters. Chief executives represent a singular focus to command media attention and develop public understanding. In contrast, 

state legislators, county commissioners, members of city 

councils, and members of Congress may be constrained 

by the need to translate the benefits of the time they 

spend on wide-ranging criminal justice problems to the 

voters in their relatively small districts. While all general 

government elected officials have more opportunities to 

change public opinion than criminal justice officials, if 

they go too far beyond the electorate and are unable to 

exert the leadership to bring the electorate along, not 

only will they be defeated, but more importantly, the 

controversial program will be reversed along with their 

defeat. Of great significance, general government officials have the ultimate power of the budget to use in leveraging criminal justice players to act, along with hire/ 

fire power over some. Criminal justice options also may 

be defined by sentencing legislation. 

Judges typically are shielded from many of the political forces faced by general government officials. Their 

terms are longer. In many states, their continuance in office depends on an uncontested retention vote; in others, 

they are appointed. (In six states-Alabama, Arkansas, 

Indiana, Mississippi, Missouri, and Texas-some or all 

judges are elected for four to six years in partisan elections.) Their independence in carrying out their professional responsibilities is checked only on rare occasions 

by higher court review, but they do operate as part of an 

extensive court system, which is equally concerned about 

a noncriminal docket. In criminal cases, judges are significantly restrained by being able to act only on what the 

prosecutor brings before them. Court budgets may be 

subjected to the same budget review as executive agencies, although typically they are not singled out and in 

some states the judicial budget is sent to the legislature 

without executive revision. 

Theprosecutor usually is elected on a partisan ballot; 

however, the term typically is longer than for general 

government officials. While operating in an arena of 

constant negotiation with defense lawyers and ultimately 

with judges, this official substantially controls what will be 

prosecuted and can influence the degree of punishment through plea and charge bargaining. The prosecutor, 

who has sole authority for the office and is not constrained by impartiality or by being part of a larger system, is more apt to be publicly visible than are judges. 

Typically, prosecutor’s offices have lagged behind court 

reforms that led to employing administrative expertise 

for budget development. 

The sherin shares many of the advantages of the 

prosecutor as far as length of term, independence, and 

the political advantage of canying out duties that punish 

criminals. However, having little control over the size of 

the jail population and limited administrative choices, 

budget battles with general government officials are far 

more significant for the sheriff. They also are significant 

to general government officials because jail budgets involve very large dollar amounts. 

A clerk of court, elected in almost all judicial sys- tems, shares the advantage of administrative autonomy 

with the other criminal justice players and frequently 

has the added advantage of significant budgetary independence derived from fees collected. The clerk of 

court may not be focused on the needs of the criminal 

justice system because the office handles at least an 

equal amount of noncriminal work, such as maintaining 

real estate records, issuing marriage licenses, etc. 

In addition to all of these officials, the criminal justice system depends equally on the participation of the 

chief of police, the public defender, the chief probation lparole oficer, the court administrator, the head of pretrial services, the director of the department of corrections, and/or 

the administrator(s) of juvenile programs. The difference 

is that these players typically serve at the pleasure of an 

elected official(s). Therefore, they may not be able to sit 

with equal authority or freedom to commit to policy 

changes. Cooperative efforts are complicated further by 

the fact that each of these administrators typically is appointed by a different unit of governmknt: city police, 

state or county public defender, state or court probation 

officer, state corrections officer, and county or court juvenile authorities. Further, these administrators sometimes operate one step removed from the budget authority. For example, one official may be limited in the 

pursuit of local initiatives by being part of a division of a 

state bureaucracy, while another’s advocacy to the general government budget authority is limited by being 

part of a total court budget. 

Finally, if prevention and alternative sanctions are 

pursued, non-criminal justice agency heads need to be involved in collaborative efforts. School district superintendents, city drug treatment program heads, state employment agency heads, and county welfare department administrators need to be directed and supported by general 

government officials, to whom they are accountable, to address the problems of the criminal justice system. 

U.S. Advisory Commission on Intergovernmental Relations 25 
Counties, in particular, feel caught in the middle. Municipal funding responsibility usually stops when the arrestee isbrought into the county jailldetention center and, 

typically, state funding responsibilities do not start until 

the sentenced offender is transferred into the prison system. 

Many county commissioners and chief executives are left 

frustrated over the costs they must absorb that result from 

state political decisions and municipal arrest priorities. 

State-municipal conflicts focus more on need than on 

constitutional responsibility. As discussed in the section 

on the demographics of crime, cities feel the greatest impact 

of criminal activity. Mayors and council members argue that 

police are the first line of defense, that if efforts to fight 

crime are not focused where crime is the heaviest, the state’s 

as well as the city’s economic tax base will be undercut while 

criminal justice and human service costs wdl increase. 

Because each state has a unique criminal justice struc- ture, there are almost as many different responses to 

state-local conflicts as there are states. This report includes 

discussion of a number of ways in which state-local responsibility is being redefined through intergovernmental funding, 

court reorganization, indigent defense, Community Corrections Acts, state-run community facilities, jail construction, 

shared costs, redefinition of state felonies, sentencing guidelines, and court suits. These concerns raise basic questions 

about where supervision and treatment programs are located, how funding formulas are developed, the ability of 

criminal justice agencies to respond to increased prosecutions, improving police effectiveness, preserving local and 

agency autonomy, and controlling system impacts. 

Controlling System Impacts 

Not long ago, when many criminal justice officials 

heard a phrase such as “controlling system impacts,’’ 

they would have rejected it as another esoteric planning 

exercise. This attitude appears to be changing rapidly, as 

judges, sheriffs, prison administrators, prosecutors, 

public defenders, forensic laboratories, and probation 

and parole administrators have become overwhelmed 

by caseloads they can neither manage nor control. Their 

frustration in seeing their efforts wasted by lack of 

carry-through also is shared by the police. Even general 

government officials, who find their discretionary 

spending siphoned off into criminal justice agencies, are 

recognizing that “identifying and controlling system impacts” is not an academic exercise. 

The number of comprehensive studies released recently demonstrates a growing recognition that answers to 

the challenges in criminal justice are multifaceted. For example, this report has drawn on system-wide analyses released in 1989 and 1990 by several states, including California, Colorado, Florida, Michigan, New Jersey, Ohio, 

Tennessee, and Virginia, and on local studies from Maryland, Minnesota, and Texas. Whether initiated by the governor, legislature, local general government body, or in 

one instance by the Bar Association, all of these studies were 

broad-based looks at the impact of the disparate processes of 

criminal justice decisionmaking, even though most were initiated because of prison and jail overcrowding. 

Corrections system overloads have not been the on11 

trigger to spur officials. Court system overload also ha! 

launched comprehensive systems studies, including thc 

1990 Report of the Federal Courts Study Committee, self 

described as the “most comprehensive examination of thc 

federal court system in the last half century”; the 1989 re 

port of the first national conference on legislative-judicia 

relations; and the American Bar Association’s 1988 repor 

Criminal Justice in Crisis, updated in 1990. 

Police concerns about systems impacts resulted i~ 

congressional support of a study of law enforcement in thc 

1991 anticrime legislation. Subsequently, the Nationa 

Governors’ Association, National Association of Coun 

ties, and National Conference of State Legislatures joinec 

in calling for a more broadly focused national crime com 

mission “to give the people of this country a comprehen 

sive agenda that will provide this nation with a systematil 

approach to combatting crime.”86 

The Federalist Concept 

of Noncentralized Criminal Justice 

While it is important to recognize intergovernmenta 

system impacts, the 1991 debate over the breadth of a fed 

eral study might well have started with the basic issue o 

why there needs to be a federal study at all. Virtually with 

out exception, the state and local studies cited do not ref 

erence any federal role. At least in part, this reflects thl 

fact that 87 percent of criminal justice funding is state an1 

local. Therefore, what does creating a comprehensive fed 

eral agenda connote? 

The U.S. Constitution is quite limited with respect tl 

criminal jurisdiction. Treason is defined and the Congres 

is authorized to provide for the punishment of counteI 

feiting. Otherwise, criminal jurisdiction is left to th 

states. State delegation of police protection to local gob 

ernments and independent selection of local judges 

prosecutors, and sheriffs further reflected a fear of cen 

tralized law enforcement. This noncentralized structur 

also encompassed acceptance that community standard 

should define criminal behavior. 

However, beginning with Reconstruction and accelei 

ating with Prohibition, the federal government began tl 

play a larger role in criminal justice. Today, more tha 

3,000 acts are defined as federal crimes. Whether it i 

tracking a violent criminal across state lines, interdictin 

sophisticated international and/or interstate drug opera 

tions, enforcing child support orders, or unraveling intn 

cate financial fraud, the emphasis increasingly has been o 

attempting to develop more effective law enforcemen 

rather than on checking centralized power. 

Furthermore, it appears that our federalist system c 

criminal justice may be entering another phase: a shil 

from community-based, noncentralized law enforcemen 

to an emphasis on a greater federal role insetting the stan 

dard for criminal sanctions. During the 1980s, the Con 

gress enacted five major anticrime bills, with another mz 

jor bill being hotly debated by the 102nd Congress. ”hi 

activity, in part, reflects the fact that crime became a pre! 

idential campaign issue beginning in 1964. Such feden 

26 U.S. Advisory Commission on Intergovernmental Relations 
-tionhas pressured many state and local elected of& 

to be equally tough on crime. 

‘Lhe fact that this degree of federal government activw.runsmunter to the constitutional concept of a nonccn- 

*criminal justice system has been little debated unncently. Because of a proposal to extend the death 

WQ into the 14 states that now prohibit it, congressioId debate on the 1991 anticrime bill brought forth some 

wy felt statements about making more than 50 federfl aimes capital offenses. In addition, there has been a 

mgreaction from federal judges about having to han- 

’& types of cases, particularly minor drug offenses, that 

‘thq have not handled in the 

Previously, most intergovernmental tension was 

aeatedby the publicity surrounding federal anticrime legislation compared with the very small federal role in 

ptwecuting only 6 percent of all felony cases. Local officials point out that members of Congress and the president get political credit for being tough on crime, even if 

the new laws seldom are enforced through the federal 

criminal justice system and little impact is felt on the federal budget. Instead, it is the states and localities that have 

toincrease their criminal justice expenditures to meet federally heightened public expectations. 

The results of the federal war on drugs may be changing the intergovernmental debate, however. Tough fcderal penalties enacted by the Congress always have been a 

potentially attractive alternative to local police and prosecutors, who can petition for an arrest to bc prosecuted as a 

federal crime if they feel that the state law is too weak or 

local judges too lenient. However, federal prosecutors 

have to be willing to accept the case. With the federal war 

on drugs, U.S. attorneys began pursuing more cases, which 

had been prosecuted in the state courts, in response to an 

aggressive executive branch agenda as articulated by the 

president and the attorney general. This resulted in a heavy 

impact on federal court caseloads and a 119 percent growth 

in the number of federal prisoners from 1985-1991, compared to a 68 percent growth in state prison populations.ss 

The combined results of the active anticrime stances 

of the federal executive and legislative branches is drawing increasing comment from the federal judiciary. Speaking out against the “federalization of crimes . . . for essentially political reasons,”89 Chief Justice William H. 

Rehnquist echoed positions taken by The Judicial Conference, the Conference of Chief Justices, The Federal Judicial Council, The Federal Courts Study Committee, and 

the American Bar Association. 

Although the major concern of the federal judiciary is 

the overload created by large numbers of drug offenses 

and the resulting impact on the often complex civil and 

criminal cases that are traditionally handled by federal 

courts, their arguments raise other basic concerns about 

federal decisions compromising state action, shifting 

prosecution from elected to executive-appointed prosecutors, and having criminal cases decided by judges who are 

appointed for life. In addition, concerns are expressed 

about whether federal involvement will cause state and local governments to pull back their efforts and whether 

federal law enforcement is able to handle the criminal 

cases that have traditionally been their responsibility, such 

as social security fraud, civil rights, and tax evasion. 

As members of the state and federal judiciary grapple 

with these questions, many of their concerns will not be 

able to be addressed without change within the legislative 

and executive branches, among both criminal justice and 

general government elected officials. All three branches 

will need to join in a response to the chief justice’s call in 

his 1991 year-end report to reexamine the growing role of 

the federal government in criminal justice: 

The time has come to reexamine the role of the 

federal courts. In conducting that reexamination, 

as Chief Justice Earl Warren stated, “It is essential that we achieve a proper jurisdictional balancebetween the federal and state court systems, 

assigning to each system those cases most appropriate in light of the basic principles of federalism.” In attaining a balance, we cannot ovcrlook 

the constitution’s intent to have state and federal 

systems share the administration of justice, with 

the federal court’s limited role reserved for issues 

where important national interests predominate?O 

Throughout this report, basic considerations about the 

proper role of the federal government in all aspects of criminal justice will surface, whether it is federal court overload, 

joint law enforcement efforts, national research, establishing 

uniform data bases, the effect of federal sentencing legklation, bill of rights protections, or funding crime-impacted jurisdictions. The challenge is to forge a partnership for greater effectiveness-which, if it is to be achieved, must be 

accompanied by intergovernmental political accountability-while still honoring both the concepts of noncentralized 

authority and of equal justice under the law. 

SUMMARY 

Criminal justice spending has been the fastest grow- ing area of state and local expenditures since the 

mid-1970s. This significant commitment of resources has 

not produced a downturn in crime, however, and juvenile 

crime trends, violence spawned in part by the conduct of 

the drug trade, and a falloff in the use of probation all indicate that the pressure to devote even more resources to 

criminal justice will be unabated. 

State and local lawmakers, chief executives, and criminal justice officials are showing heightened recognition of 

the need to control system impacts through collaboration 

and opening lines of communication. In contrast, federal efforts continue to carve out an increased federal policy role 

with little debate on the ramifications of shifting away from 

our traditional noncentralized criminal justice system. 

General government elected officials play a crucial 

role in every aspect of these criminal justice concerns: 

from shaping philosophic direction under the Constitution to holding an administrator accountable for the cost 

of a new building; from listening to a grieving relative 

U.S. Advisory Commission on Intergovernmental Relations 27 
plead for tougher sentencing laws to sorting out the statistical claims of program performance; and from using political leverage to force a collaborative systems approach to 

making hard budget decisions. The key issue is whether 

the role played by lawmakers and chief executives will be 

based on conscious, informed decisions or whether their 

actions produce policy by default. 

Too often, general government elected officials have 

felt intimidated by the criminal justice system. The intent 

of this report is to provide a base of knowledge and a context for decisionmaking to dispel this sense of intimidation. 

As comprehensive as it is, in order to cover the breadth of 

roles just outlined, the report is limited in its depth. 

First, the report is limited to information necessaly so 

that general government elected officials will know what 

questions to ask of program managers. It is assumed that 

these elected officials do not have to know how to set-up 

or run programs; their responsibility is to hold program man- agers accountable and to operate from a base of knowlcdge 

adequate to judge the need for support or change. 

Second, the report is limited to those legal procedures 

that have an impact on criminal justice system growth and 

costs, and does not contain details about determining an 

individual’s guilt or innocence. 

Third, while this report raises many criminal justice issues, the intent is not to resolve philosophical debatcs 

about such matters as punishment versus rehabilitation or 

any of the related concepts of deterrence, selective inca- pacitation, treatment, restitution, just dcsserts, and risk 

control. The intent is to help guide the resolution of the 

balance of philosophies within each criminal justice com- munity and the political structure of which it is a part, so 

that resources can be marshalled to achieve the bcst re- sults possible from the approaches used. 

However, it is hoped that the report will help general 

government elected officials, as representatives of the full 

range of public interests, assume their rightful role as a 

constructive force, enabling criminal justice authorities to 

carry out their disparate missions within a smoothly functioning system. It also is hoped that criminal justice officials will respond readily, out of recognition that it will be 

the general government elected officials who take on the 

intergovernmental funding battles, who are at the front 

line in answering citizen concerns, and who must balance 

the resources of the community against total nceds. 

NOTES 

US. Department of Commerce, Bureau of the Census (CcnSUS), Government Finances: 1989-90 (Washington, DC, 199 1). 

’The term “general government elected officials’’ is used 

throughout to refer to the chief executives and lawmakers in 

state and local government: governors and state Icgislators, 

county executives and commissioners, and mayors and mcmbers of city councils. “General government officials” also is 

used and includes both appointed and electcd officials, while 

“elected officials” includes both criminal justice and general 

government officials who are elected. The broad term “gov- ernment officials” includes all general government and criminal justice officials, both appointed and electcd. 

’ACIR computation from U.S. Department of Justice, Bureau 

of Justice Statistics (BJS), Soirrcebook of Ciimiiial Justice Statis- tics, 1991 (Washington, DC, 1992), p. 637. 

Marc Mauer, Americans Beliind Bars: A Comparisori ofIiitenia 

tiorial Rates oflncarceratiori (Washington, DC The Sentcncini 

Project, 1991). 

Soirrcebook of Crinririal Justice Statistics, 1991, p. 636. 

ACIR computation from Sourcebook of Criminal histice Statis. 

tics, 1991, p. 637. 

’ Ibid. 

‘The percentages wre derived by (1) determining the ratio of the 

percentage increase in state and federal prison populations from 

1974 through 1990 to the percentage growth in population, re- ported UCR Index crime, the sum of drug arrcsts and ams& for 

UCR Index crimes for 1973 through 1989, and the percentage 

growlh in new court commitments to state and federal prisons 

from 1974 through 1990, and (2) subtracting each pcrcentage ratio 

from the preceding ratio. The relative contribution on increase in 

time served to the growth in prison populations was assumcd to 

be the proportion not accounted for by the other factors. 

’See BJS, BJS Data Report, 1989 (Washington, DC, Dcccnibcr 

1990); Commission on the Future of Virginia’s Judicial Systcm, Courts in Transition (Richmond, Deccnibcr 1989); Ohio 

Governor’s Committee on Prison and Jail Crowding, FiiialReporf, by David Diroll, Candace Peters, and Stevcn Van Dinc 

(Columbus: Governor’s Office of Criminal Justice Services, 

1990); (California) Blue Ribbon Commission on Inmatc Population Management, Final Repot? (Sacramento, January 1990); 

Warren C. Gregory, The Crisis in the Michigan Crimiiialhistice 

Systeni: Caiises, Consequences, and Options (Lansing: Michigan 

House of Rcpresentatives, Fiscal Agency, 1989); State of Ncw 

Jemy County and Municipal Government Study Cornmission, 

Corrections Policy for tlie 90s, Vrenton, 1989); Colorado Legislative Council, Committee on Criminal Justice, Legislative Colrricil 

Report to the Colomdo Geneml Assembly (Dcnver, 1989). 

lo Soirrcebook of Criminal Justice Statistics, 1991, p. 372. 

“Criminal Victimization, 1990,” BJS Bulletill, October 1991. 

”ACIR cornputation from Sourcebook of Criminal JiisticeStatistics, 1991, p. 312. 

l3 “Criminal Victimization, 199O.” 

l4 US. Department of Justice, Federal Bureau of Investigation 

(FBI), Uiiifonn Crinie Reports, 19S9 (Washington, DC, 1990), 

l5 “CriminaI Victimization, 1990.” 

l61bid. 

l7 ACIR computation from Sourcebook of Criniilial Justice Statistics, 1991, p. 372. 

“ACIR cornputation from FBI, Unifonn Crime Reports, 1990, 

1991. 

191nterview with Lawrence Greenfeld, associate director, Bureau of Justice Statistics, May 5, 1992. 

’O ACIR computation from Sourcebook of Crimirial Justice Statistics, 1976, p. 698, and Sourcebook of Crimirial Jiistice Statisiics, 

1991, p. 638. 

“Jail Inmates, 1990,” BJS Bulletin, June 1991. 

’’ BJS, “Profile of Jail Inmates, 1989,” BJS Special Report (’Wash- ington, DC, April 1991). 

23 BJS, Census of Local Jails (Washington, DC, May 1990); and 

Sourcebook of Criminal Justice Statistics, 19S9. 

24 BJS, Report to tlie Nation on Crime and histice (Washington, 

DC, 1988), p. 120; and Census, Government Firiances: 1959-90. 

25 ACIR computation from BJS, Justice Erpendifirre arid Employ- ment in the US., 1971-1979(Washington, DC, 1984), and Justice 

Eyenditiire and Employment, 1990 (Washington, DC, 1992). Intergovernmental expenditures were apportioned as follows: all 

federal intergovernmental expenditures and net local intergovp. 48. 

28 U.S. Advisory Commission on Intergovernmental Relations 
(mmartal apenditures (those not between municipalities and 

-)mere subtracted from state total expenditures; state in- vtal expenditures were subtracted from county and 

IIpnicipal eqjenditures in proportion to the total expenditures of 

Qlontics and municipalities for each criminal justice activity; and 

Qlonty and municipal intergovernmental expenditures (minus 

plaportionate shares of total local intergovernmental expenditpn) - tmted as payment for seMm and added back to re- lpective municipal and county expenditures. 

SMIR computation from BJS, Justice Erpenditure and Employ- ment, 1971-1979 and Justice Expenditure and Employment, 

1990. 

~Xbjd. 

to the Nation on Crime and Justice, p. 115. 

~Xnkqpemmental Perspective 17 (Winter 1991). 

SCensus, Changes in American Family Life (Washington, DC, 

August 1989); and John J. DiIulio, Jr., “Punishing Smarter: Pe- nal Reforms for the 199o’s,” The Bmkings Review 7 (Summer 

”Hennepin County Board of Commissioners, Hcnncpin 

County Sheriff, Hennepin County Attorney, Fourth Judicial 

District Court, and Minneapolis Police Department, Hennepin’s Criminal Justice System and the New Public Safety Facility 

(h4inneapolis, January 1990), p. 35. 

1989r: 3-12 

=€@H to the Nation on Crime mid Justice, p. 42. 

uSomebook of Criminal Justice Statistics, 1987, p. 495. 

”BJS, P~ons and Prisoners in the United States (Washington, 

sSourcebook of Criminal Justice Statistics, 1990, p, 645. 

”“Profile of Jail Inmates, 1989.” 

”U.S. Department of Justice, National Institute of Justice (NIJ), 

“Drugs and Crime, 1989,” Drug Use Forecasting Aiinual Report, 

1989 (Washington, DC, June 1990). 

Unifom Crime Reports, 1987-1 990. 

DC, April 1992). 

”ACIR computation from Unifomi Crinie Reports, 1976-1990. 

4uPrisoners in 1991,” BJS Bulletin, May 1992. 

“Pierre Thomas, “Population of Area Jails Drops Sharply,” 

4’P~0ns and Prisoners in the United States. 

43 W. John Moore, “Rethinking Drugs,” National Journal, FebruuNews conference held by Sen. Joseph Biden of the Senate Ju45“Profile of Jail Inmates, 1989.” 

&Federal Courts Study Committee, Report (Philadelphia, 1990). 

47“Prisoners in 1991,” BJS Bulletin, May 1992. 

Uniform Crime Reports, 1990, p. 178. 

49 Unifomi Crime Reports, 1986 and 1990. 

Michael DeCourcy Hinds, “Number of Killings Soars in Big 

Cities across U.S.,” New Yo& Times, July 18, 1990. 

51 “Probation and Parole, 1989,” BJS Bulletin, November 1990. 

52 “Probation and Parole, 1990,” BJS Bulletin, November 1991. 

53ACIR computation from ibid. 

54 ACIR computation from Justice Expenditure and Employrnent 

in the US., 1985 and 1988; and “Probation and Parole 1989.” 

55 Prisons and Prisoners in the United States. 

56BJS, Bureau of Justice Statistics Annual Report: Fiscal 1988 

Wdington Post, February 11, 1991. 

ary 2, 1991, pp. 267-271. 

diciary Committee, December 19, 1990. 

(Washington, DC, 1989). 

57 “Crime and the Nation’s Households, 1989,”BJS Bulletin, September 1990. 

58 “Homicide among Young Black Males-United States, 

1978-1987,” Morbidity and Mortality Weekly Report, December 

7, 1990. 

=ACIR computation from Uniform Crime Reports, 1990, and 

Census, Money Income of Houselioldr, Families, and Persons in 

the United States: 1990 (Washington, DC, August 1991). 

M, Mark Alan Hughes, Poverty in Cities (Washington, DC National League of Cities, 1989). 

“Interview with David Greenstein, director, Center on Budget 

and Policy Priorities, 1990. 

62 Dilulio, “Punishing Smarter: Penal Reforms for the 1990s.’’ 

63 Russell Committee, Bar Association of Baltimore City, The 

Drug Crisis and Underfunding of the Justice System in Baltimore 

City (Baltimore, December 1990). 

64 BJS Data Report, 1989. 

65 “Felony Defendants in Large Urban Counties, 1988,” BJSBirlletin, April 1990. 

66 ACIR computation from Census, Projections oftlie Population 

of the United States, by Age, Sex, and Race: 1955 to 2050 (Washington, DC, February 1989). 

67 The Gallup Report 285 (June 1989): 26 

681bid., p. 190. 

Ibid., p. 184. 

70 Ibid., p. 172. 

71 Sourcebook of Cntninal Justice Statistics, 1990, p. 173. 

721bid., p. 161. 

73 Ibid., p. 157. 

74 Ibid., p. 181. 

751bid., pp. 159, 161, 173, and 191. 

76 mile GalIiip Report, pp. 25-21. 

77 Ibid., p. 24. 

78 Ibid. 

79 Sourcebook of Criminal Justice Statistics, 1990, p. 269; and 1957, 

8o The Gallup Report, p. 25. 

” Sourcebook of Criminal Justice Statistics, 1990, p. 152. 

82 Ibid. 

83 “Prisoners in 191,” BJS Bulletin, May 1992. 

84Elder Witt, in Nancy C. Maron, Linda K. Ridge, John Martin, 

and Carol Friesen, Legislative-Judicial Relatioris: Seekirig A 

New Partnenhip (Williamsburg, Virginia: National Center for 

State Courts, 1989), p. 100. 

85 Governor Bob Miller of Nevada, before the National Association of Counties Conference, January 11, 1991. 

86National Association of Counties, “Resolution on the Formation of a National Crime Commission,” The American Courity 

Platfomi and Resolutions, 1991-1992 (Washington, DC, 1991), 

p. 154. 

p. 249. 

87Federal Courts Study Committee, Report. 

88 ACIR computation from Sourcebook of Criniirial Justice Statistics, 1987, p. 187; and “Prisoners in 1991.” 

89 Welcoming remarks of Chief Justice William H. Rehnquist, 

Conference on State-Federal Judicial Relationships, Orlando, 

Florida, April 8, 1992. 

9o “Chief Justice’s 1991 Year-End Report on the Federal Judiciary, The Third Bmnch 24 (January 1992). 

U.S. Advisory Commission on Intergovernmental Relations 29 


THE POLITICAL CONTEXT 

Crime Is Whatever Elected Officials 

Legislate as Crime 

No act is a crime unless elected officials have voted to 

make it one. Additionally, legislatures have an “inherent 

power” to prescribe punishment for acts it has defined as 

criminal.2 Therefore, instead of saying, “State law requires,” it might be more revealing if we always said, “Our 

state legislature requires.” Within constitutional limits, 

there is nothing sacrosanct about a criminal statute. What 

one legislative session has passed, another can change. 

Since the mid-l970s, state legislatures, county 

boards, city councils, and the Congress have been active 

in exercising their authority to toughen criminal penalties. These elected representatives did not act out of the 

blue. Contemporary social concerns fostered vocal constituencies advocating tougher sentences. Drugs and 

gun control received the most attention in the 1980s; 

however, a number of new criminal penalties also resulted from rape and domestic violence counseling, 

which stemmed from the women’s movement in the late 

1970s, as well as grass roots efforts to fight drunk driving 

in the 1980s. 

Of equal significance with the legislative changes 

championed by these movements is the change in focus 

they produced. The women’s movement and the drunk 

driving movement directed more attention to the victim 

and to the personal and economic impacts of criminal acts. 

Between 1974 and 1988,48 states passed legislation allowing input by crime victims at sentencing. This focus on the 

victim has influenced legislators to pass tougher laws and 

the justice system to mete out tougher sentences within 

the ranges defined by the legislature. 

A sampling of the crime legislation passed by general 

government elected officials includes: 

State legislatures passed statutes giving additional 

mandatory prison time for conviction on a second 

felony offense, over and above the sentence for 

the actual crime committed. Three-time offenders 

can now draw a true life term in some states. In 

1983, California law provided that all residential 

burglaries be punished by a prison sentence. 

During the 198Os, opponents and supporters of 

gun control joined together in many states to pass 

mandatory sentences for the possession and/or use 

of a gun in the commission of a felony. 

Child abuse, domestic violence, and rape laws have 

been expanded and clarified in many states, leading 

to more arrests, convictions, and longer sentences. 

Longer sentences for drug offenses and new categories of offenses have been added to criminal 

statutes. For example, drug free school zones 

have defined several new categories of offense. 

Legislation that makes possession of cocaine in 

any amount a felony has moved these cases into 

the state correctional system. Michigan made cocaine possession the equivalent of murder, carrying a mandatory sentence of life without parole. 

Congress made possession with intent to distribute 5 grams of crack cocaine punishable by a fiveyear mandatory minimum sentence in 1986, only 

to follow this in 1988 by legislating the same penalty for mere possession. 

Influenced by direct citizen lobbying and by the 

fact that these same lobbying efforts had convinced Congress to threaten states with loss of 

highway funds if they did not tighten their drunk 

driving laws, the Pennsylvania legislature passed 

a mandatory sentencing statute for Driving under 

the Influence (DUI) in 1983. In 1980, there were 

635 DUI offenders in the county jails and prisons 

of Pennsylvania. By 1987, the number had increased to 9,287, and the average length of stay 

had steadily in~reased.~ 

Between 1984 and 1988, the number of “gross” 

misdemeanor charges by the Minneapolis city attorney increased from 784 to 1,579 as a result of 

state legislation on DUI and domestic violence. 

By 1989, the net effect on the local county jail was 

about 20 to 30 beds a day. In addition, state legislation toughening some felony sentences resulted in higher bail amounts and more people 

being held awaiting trial.4 

Even for petty offenses, there has been a tendency to enact criminal rather than civil penalties. 

During an interview, a local county board member noted that the board had just passed legislation giving 30 days in jail for illegal camping and 

30 days for a loose dog. 

Expansion of federal RICO (Racketeer Influenced 

and Corrupt Organization Act) provisions to cover 

the drug trade and passage of the Sentencing Reform Act were among the federal initiatives to increase criminal penalties. 

The effect of these and many other criminal code changes 

has put considerable pressure on the criminal justice system. The responsibility of elected officials is to ensure that 

the whole system can and will respond appropriately. 

Swings of Philosophy 

The merits presented by advocates of any criminal 

code change have been less important at times than the 

climate of the debate. Perhaps because few policymakers 

have had an ongoing involvement with criminal justice, 

ideological extremes seem to have more than normal influence. Everyone has gone to school, needed health care, 

and driven a car, for example, and debate on these issues is 

often tempered by direct experience. This is rarely true for 

criminal justice. 

The 1960s have been referred to as the “Rehabilitation Era” in criminal justice. At the beginning of the 

32 U.S. Advisory Commission on Intergovernmental Relations 
1970s, a noted scholar in the field could even observe, 

“Except for. . . some political, law enforccment, judicial, and correctional officials, almost no responsible 

person isadvocating avery austere or retributive stance 

in dealing with offenders. . . .”5 

By the 1970s, opponents were able to point to the fact 

that crime rates had risen during the 1960s as proof that 

rehabilitation did not work. Political campaigns emphasizing law and order began moving criminal issues to the 

forefront of the political arena. Increasingly, public attention was focused on the dangers of street crime and on 

stronger law enforcement and more imprisonment as primary crime-control strategies. Less was said about the 

causes of criminal behavior? This shift in philosophy was 

underscored by the national attention given to a controversial 1987 study concluding that, while costly, incarceration saves the public money because a criminal behind bars 

is not committing new crimes.’ 

The 1980s swing in philosophy also was influenced 

by the same drive present in medical care and national 

defense, two other areas of rapid increascs-you can’t 

be safe enough. 

Politically, . . . a program that fails to get x percent 

of poor citizens off the welfare rolls by a given 

time is one thing, and aprogram that fails to keep 

even one convicted criminal under correctional 

supervision from harming even one innocent citizen is quite another? 

No matter how strong the merits behind a criminal justice policy deckion, the fear factor is typically brought forth 

to try to assure Victory. For example, in 1990, Hennepin 

County (Minneapolis) produced a comprehensive, welldocumented report to the Minnesota legislature on the need 

for a new loml detention center. Nevertheless, its next-tolast sentence sounded the warning: “If the wrong person is 

released to relieve ADC [Adult Detention Center] crowding, the costs might be measured in human lives.’@ 

The elected officials interviewed for this project were 

generally active in the field of criminal justice and more 

aware than most of the nature of the system’s problems. 

Nevertheless, they readily pointed out that they were constantly aware that they must not be labeled “soft on crime” 

or they would be extremely vulnerable in the next elec- tion. Any leadership role they might play was constrained 

by this reality. This dilemma was appreciated, although re- gretfully, by at least one state prison system administrator: 

We have what I consider very enlightened legislative committees. Chairs of our judiciary committees are smart guys. So it has been a nice environment, but it is changing. The Willy Horton 

syndrome has been seared into peoples’ memories. They know they can push a button. They 

know fear is a big thing with the public and there 

is nothing like exploited fear.’’ 

Diffused Responsibility 

“ ‘Fragmented,’ ‘divided,’ ‘splintered,’ and ‘decentralized’ are the adjectives most commonly used to describe the American system of criminal justice. . . . Words 

such as fragmented and divided, however, refer not only to 

demarcations in authority, but to differences in states of 

mind, and not only to physical distances, but to distances in 

philosophy and outlook.”” These words were contained in A 

National Stralw to Reduce Crime, the 1971 landmark report 

on the National Advisory Commission on Criminal Justice’s 

standards and goals. They remain an apt description today. 

Our constitutional system contains many legal safeguards to ensure substantial independence of each component in carrying out its mission. The goal is to ensure 

impartial justice as well as to check abuse. Those who 

shaped our governmental institutions were wary of a 

strong government with broad police powers. They apportioned narrowly defined criminal justice responsibilities 

among separate authorities. Each authority was further 

checked by having to stand for election and depend on separately elected general government officials for funding. 

Almost all states have maintained an independently selected judiciary, parole board, and public defender and a 

separately elected prosecutor, sheriff, and clerk of court. 

Law enforcement, probation and parole supervision, and 

prisons are generally executive branch functions. 

As noted, the power to define criminal acts and prescribe punishment was reserved to the legislative branch. 

Increasingly, however, this power is being exercised as if it 

should be absolute, rather than balanced by the actions of 

judges, prosecutors, or correctional authorities. Enacting 

mandated sentences and narrowly defined sentencing 

guidelines has become an outlet for legislative frustration 

with what is seen as an unresponsive criminal justice sys- tem. For some legislators, however, such mandatory legislation is simply an expedient reaction to perceived public 

dissatisfaction and legal processes that are little understood or appreciated. 

The chief judge of the Maryland Court of Appeals expressed his frustration over the effect of tough sentencing 

legislation on the court system in testimony before a Baltimore Bar Association committee: 

The legislature for reasons that we have heard 

over and over again is unwilling to reduce these 

crimes, and I am thinking of DUI first offense, 

theft, first time possession of narcotics, unwilling 

to put them under the six-month or three-month 

limit to keep them in the District Court. . . . [Tlhey say it sends the wrong message to the public, we are being soft on criminals. . . . The Bar’s report concluded: 

While it might well serve individual political ambition to give lip service to being tough on crime, 

the result is merely to allow an already overburdened Circuit Court to be deluged further with 

cases never intended for it. An elected representative being thus tough on crime simply forces the 

Circuit Court to deal with petty offenses when 

dangerous felonies could and should be its focus.12 

Intergovernmentally, “distances in philosophy and 

outlook’’ are also driven as much by money as by mission. 

With the cost of criminal justice continuing its 15-year 

climb, tension has mounted. A major source of this tension 

U.S. Advisory Commission on Intergovernmental Relations 33 
stems from the fact that the general govcrnmcnt body that 

must pay the bills has not necessarily set the tougher policy. 

Some of the fragmentation of criminal justice funding 

between units of general government has its roots in the 

historic desire to establish checks on the criminal justice 

system. For example, the tradition of municipal funding of 

police links program accountability with the constituency 

receiving the service. In contrast, state funding of local 

court systems grew out of a need to address underfunding 

in some localities that limited equal access to justice. 

However, such separation of responsibilities creates significant intergovernmental tensions. 

County officials point out that it is relatively easy for 

municipalities to get tough on crime because they have only 

law enforcement. They do not have to support the costs of 

the jail, prosecutor, public defender, court, or probatiodparole borne by the county. While the state usually pays a portion of these court and correctional expenses, criminal justice costs represent a much smaller portion of the state 

budget than of a county budget. Increases in county responsibility, therefore, are more difficult to absorb. A city council 

passing an ordinance mandating the maximum sentence (30 

days in jail) allowed under state law for a drug-related offense, obviously, creates an impact for the county jail. Even a 

speeding crackdown can overwhelm the county clerk’s office 

and strain available courtroom space. 

Furthermore, in a focus group discussion for this project, county elected officials stated their belief that state 

legislators have no concept of what it costs when “they legislate tough sanctions to support their reelection’’ and that 

few have an appreciation of the effcct on the total system 

of the rate at which people arc arrested. Even when a fiscal impact process on proposed changes in the criminal 

code or operational mandates exists, these county officials 

believe that many legislatures do not adhere to the policy 

or do not take fiscal statements seriously. 

The federal legislative process is equally criticized. 

Some counties and state officials fault the federal war on 

drugs for concentrating funds on law enforcement and ignoring the impact on the courts and correctional systems 

or the need for treatment services. Many city officials are 

equally vocal in their criticism that federal drug money is 

being diverted in the state allocation processes and is not 

reaching the cities whose law enforcement efforts are the 

first line of defense. 

The first report on the administration’s drug strategy 

called for a balanced approach to inchdc punishment, 

education, and treatment. But in a February 1990 appcarance before the Senate Judiciary Committee, Office of 

National Drug Control Director William J. Bcnnett observed, “Should we have drug education programs or 

should we have tough policy? If I have the choice of only 

one, I will take policy every time.”13 Limited funding almost always makes choice necessary. 

In the most positive light, the concerns of our founding fathers are well served by such intergovernmental 

funding debates. Programmatic extremes will be avoided 

as each unit of government advocatcs that greater attention be given to the responsibilities it carries. Whether this 

is a constructive debate depends on whether the respectivc government officials arc attempting to better shoul- der or to shed program responsibility. 

Difficulties in Understanding 

the Criminal Justice System 

As noted, few electcd officials have had direct contact 

with the criminal justice system. Only 16 percent of the 

more than 7,000 state legislators are attorneys, and not all 

of them have practiced criminal law.14 A 1976 U.S. Gener- al Accounting Office (GAO) report, System in Crisis, 

picked up on an Orcgon planner’s comment, “Perhaps the 

most important thing that the criminal justice planner has 

to say about the [trial-sentencing] sector is that we know 

very little about it.”15 Such lack of knowledge, at least on 

the part of general government officials, has not changed. 

One problem is system complexity. The constitutional 

checks discussed previously contribute to this complexity. 

An elected official must sort through the impacts of many 

separate professional responsibilities and procedures in 

trying to decide what he or she actually needs to know. In 

addition, while an offender may proceed in a preciselyprescribed way through legal steps that define the “system,” 

tying to trace governmental administrative accountability 

for whcre the offcnder may be at any given point is daunting. 

This complexity will be addressed throughout this 

study. One administrative example, as illustrated in Figure 2-1, will suffice at this point: The offender is arrested 

by a city-funded police department and booked at a county-funded jail. Throughout, the official records will be the 

responsibility of a state-funded clerk‘s office. The offender is tried by a state-paid judge in a county-funded building 

by a city-funded prosecutor’s office who may depend on a 

state-funded laboratory for analysis of evidence. If indigent, the offender will be defended by a state-funded public defender’s office. The offender may be placed under 

the supervision of a county-funded probation officer with 

the directive to participate in a city-funded education program. If the offender fails probation, the county-funded 

probation department will try to get the state-funded 

court to rule that he or she be placed in the county-funded 

jail or the state-funded prison system. 

Differences from one system to another, even withir 

the same state, further complicate efforts by general gov. 

ernment officials to understand the concurrent and frag 

mented responsibilities depicted in Figure 2-1. Basic 

sources of information-including this report-cannot 

speak to the specifics of each jurisdictionbecause the com- binations are almost endless. For example, one locality 

may have court-appointed probation officers, another 

state employed, and in still another probation may be a local responsibility. Criminal courts will be referred to by 

different names, as are prosecutors. Indigent defense may 

be provided by the county, state, private bar, or some combination of these sources. The county sheriff may be the 

chief policing authority and jail administrator, and provide 

court security, or may serve only ‘in the last capacity. 

Another problem is political avoidance. When asked 

whether his governor, whom he had descnied as supportive, 

had any background in criminal justice, a prison administrator replied, “He is too smart for that. . . too clever.. . . 

34 U.S. Advisory Commission on Intergovernmental Relations 
CITY 

Investigation 

Figure 2-1 

Overlapping Governmental Responsibility for a Case in a Representative Criminal Justice System 

ri 

0 

E;; I ZQ 4 

I - .... I . Arrest 

Booking 

Treatment 

COUNTY 

Detention' 

ll 

Public Defense 

Forensic Lab 

Courthouse 

Court Staff 

Jail' 

STATE 

Clerk of Court 

Criminal Databank 

u State 

Prosecutor 

Judge 

Pretrial Supervision' 

Health Department Lab 

I 

I 

Pre-Sentence Report 

Probation' 

Prison' 

Parole 

I 

............................ - 

..................---Z 

Individual either detained or under pretrial supervision in community. 

ZNot used simultaneously, but an offender may serve part of a sentence in more than one facility (i.e., most felons are held in jail until transferred to a state prison). 
He knows enough governors to know that corrections is 

something that can only hurt you.” A senior state legislator doubted that even half his fellow legislators have ever 

spoken with a judge about criminal justice. County elected 

officials indicated that they talk to other elected officials 

about criminal justice only at budget time or when there is 

an inescapable crisis. State legislators who might regularly 

show up at a local day-care or education discussion “don’t 

want to be associated with negative issues like alternatives 

to incarceration.”’6 

A final problem is the tendency of criminal justice officials to isolate themselves. Most state and local correctional officials would agree with a recent comment by the 

director of the federal Bureau of Prisons, “My greatest 

disappointment-which is probably one my predecessors 

would share-is the total misunderstanding by the public 

of what we do.””The roots of such a lack of understanding 

were well articulated in the following observation made 

two decades ago: “Correctional managers generally fail to 

make their values explicit either because they are not sure 

what the goals of correction should be or because they fear 

that if these values are enunciated, they may be rejected 

by superiors, colleagues, or subordinates. Since he is neither elected nor appointed as political leaders are, he 

tends to act more as a functional bureaucrat. . . . [H]e 

avoids setting goals or enunciating values that might 

create such controversy.”18 

From an entirely different perspective, of institutional strength rather than weakness, some court officials believe they need to isolate themselves to preserve separation of powers. A judge who has testified against a 

particular law in a legislative hearing may be perceived as 

having prejudged the issue. Furthermore, distrust may be 

operative. For example, although the report of the 1989 

“landmark” conference on the legislative-judicial relationships noted that increased communication was desirable, the report also noted that “a lack of respect for the 

separation of powers” could give judicial-legislative councils “the potential disadvantage of increasing legislative 

dominance over the judicial branch.”lg 

Prosecutors, sheriffs, and judges may try to isolate 

themselves rather than deal with general government 

budget scrutiny. They feel protected by their constitutional authority and mission. In addition, the fact that they do 

not serve at the pleasure of the budget authority, as do 

other agency heads, further reduces their need to compromise. In fact, under the separation of powers in 20 states, 

judicial budget requests must be sent to the legislature 

without any executive branch revision.*” 

Finally, in criminal justice, the fear factor can be summoned by almost all criminal justice officials in an attempt 

to close out unwelcome inquiry. Local electcd officials interviewed said that they did not have a problem with criminal justice technical language. The “jargon” that does get 

in the way of open debate is the language of fear that is 

sometimes used strategically against them: “How can you 

not arm law enforcement officers as well as the criminals 

are?” “YOU just don’t understand the life and death world 

we’re dealing with.” 

Summary 

America’s criminal justice system is complex and not 

well understood. It is based, first, on a balance of powers 

that reserves to the legislative branch the power to define 

what actsare crimesand the degree to which they are tobe 

sanctioned. In the last few decades, the public, legislators, 

chief executives, members of the judiciary, and criminal 

justice officials have embraced a range of preferred sanctions. Rehabilitation and reduced rates of incarceration in 

the 1960s were followed by more active arrest, prosecution, 

and sentencing legislation beginning in the mid-197Os. This 

swing was spurred by shortcomings in rehabilitation and by 

victim rights movements that magnified the debate about 

whether the criminal justice system was dealing adequately with criminals. By the mid-l980s, incapacitation became 

the dominant response to the public’s personal fear of 

crime, with state, local, and federal general government 

elected officials in the forefront of legislative change to 

toughen criminal penalties. 

America’s criminal justice system is grounded, further, 

on administrative checks and balances. Disparate authority 

between independently elected officials and units of government was established to prevent dictatorial abuse of ‘’police 

power” and to assure impartiality in determining the guilt 

and sanctioning of individuals. However, the fragmentation of the criminal justice system contributes to lack of 

knowledge and/or lack of acceptance of responsibility 

among elected officials and criminal justice authorities. 

Finally, much of the general public, as well as the majority of general government elected officials, has had 

minimal contact with the criminal justice system. This isolation, combined with elements of fear, leads to pressure 

for expedient solutions. However, the complexity of the 

criminal justice structure creates the potential for expedient solutions to have exponential effects, both within the 

criminal justice system and on other units of government. 

THE CRIMINAL JUSTICE 

SENTENCING SYSTEM 

A number of components go into deciding if an offender is to be punished, how, and for how long. General 

government elected officials need to understand the basic 

dynamics of these decision processes in their pursuit of the 

most effective responses to crime. Such an understanding 

will help distinguish when their responsibility is best carried out through sentencing laws, which is the focus of this 

chapter, or through allocation of budget resources, oversight of services, policy coordination, or increased public 

awareness and involvement, which will be explored in the 

following chapters. 

This section describes those criminal justice procedures that carry out the finding of guilt and the time 

served. It will look at bill of rights protections and court 

36 U.S. Advisory Commission on Intergovernmental Relations 
management, as well as the role of the prosecutor, public 

defender, judge, and parole board. While this overview 

provides basic information for those not familiar with 

criminal justice processes, more importantly, it presents 

all readers with a discussion of issues that need to be addressed by those who would dictate that turnstile justice 

must stop through sentencing law changes, rather than 

through focusing on what contributes to the perception of 

turnstile justice. 

Is The Criminal Justice System Sound? 

The perceived unresponsiveness of the criminal justice system is expressed in numerous public pronounce- ments: Criminals are being let off too easy. They’re back on 

the street before the cops are. Arrests aren’t prosccuted. Offenders are given no or minimal time. If they are locked up, 

they seme only a small fraction of their sentences. 

Gallup Poll results in 1989,1985, and 1981 have bcen 

consistent. Half the people surveyed have confidence in 

the police to protect them from violcnt crime. But, only 

slightly more than 25 percent have confidence in the ability 

of the courts to convict and sentence criminals properly.” 

Elected officials have reacted to this dissatisfaction. “DO 

something about crime” has been translated as “counter 

weak judicial processes by legislating tougher sentences.” 

This lack of confidence in the courts stems from both 

a lack of understanding of the sentencing system and the 

extraordinary growth in incarceration discussed in Chapter 1. Before looking at the sentencing process and its constitutional framework, it is important also to have an idea 

of how a decade of continual growth has affected the functioning of the court system. 

When the Los Angeles Times asked more than 2,000 

criminal justice officials, “Is Los Angeles’ criminal justice 

system basically sound?“ 71-81 percent of the judges and 

prosecutors said it was. However, only 50-55 percent of police, probation officers, and public defenders agreed. “The 

further removed from the street, it would seem, the more 

optimistic the view.” While only one-third of the judges 

saw deterioration, 45-55 percent of the police, prosecutors, and probation officers and 70 percent of the public 

defenders believed that the quality of justice had deteriorated over the decade of the 1980~.~~ 

This type of response is not limited to one city. In 

1988, the American Bar Association (-A) produced a 

major report entitled Criminal Justice in Crisis. The original purpose of the report was to “examine the extent, if 

any, to which constitutionally guaranteed protections 

were creating problems in the criminal justice system as 

some critics contended. [Instead, the] Committee found a 

system struggling to survive. The crisis resulted from a 

lack of resources rather than from the preservation of constitutional protections as alleged.”23 

The ABA committee conducted hearings in three cities and surveyed more than 1,OOO persons involved in the 

justice system-judges, prosecutors, defense attorneys 

and law enforcement professionals-throughout the nation. They “found a system suffering from not one, but two 

crises. Furthermore, they found that these crises extended 

to every part of the justice system, from investigation to 

the courts and through the corrections system. The first 

crisis is that the entire system is starved for resources. The 

second crisis is the drug crisis.” A follow-up report, released in August 1990, observed that “[iln the months 

since the report was made public, this situation has dramatically det eri~rated.”~~ 

The drug crisis and increasing rates of reported crime 

began in the mid-1980s. As noted in Chapter 1, total arrests began increasing during the 1970s, even though the 

crime rate was not increasing, due to better police training, sophisticated technology, adjustments to restrictive 

Supreme Court rulings, and increased willingness of citizens to report crime. 

The staffing of most heavily impacted judicial systems 

was not increased to reflect the increased arrest activity 

within the court’s jurisdiction. For example, between 1980 

and 1989, there was a 149 percent increase in the number 

of criminal cases in Los Angeles Superior Court, but only 

a 21 percent increase in the number of judges and a 40 percent increase in the number of public defenders.2s Therefore, the ability of judicial systems to absorb the increases 

caused by increased drug arrests and crime rates since 

1985 has been severely strained by low staffing. 

The pressure on the judicial system from the increased criminal caseloads also affects civil cases. According to a local bar association study, while Baltimore City’s 

backlog of criminal cases has increased from 1,400 to 

2,300, the time to trial for civil jury cases has slipped from 

13 months to two years since 1988. The association concludes that “even if funding to maintain the current level 

of expenditures is found, since criminal cases must take 

priority, the Circuit Court may be unable to try civil cases 

altogether in three to five years.”26 

In fact, the civil docket is an endangered species 

in many jurisdictions. Chief Justice Malcolm Lucas of the California Supreme Court accurately 

described the situation when he said that “drug 

cases are swamping the courts. The system has 

begun to take on so much water we are close to 

foundering. Too often, civil cases get drowned.” . . . Vermont recently declared a six-month moratorium of civil jury trials because it lacked sufficient 

resources to support both criminal and civil trials. 

In the Federal District Court for the Northern 

District of Florida, criminal filings have inundated the courts, and now outpace civil filings by a 

four to one margin, exactly the reverse of the ratio just five years 

The ABAreport emphasized that, “These are not isolated 

examples. The gradual ‘shutdown’ of the civil justice system is spreading throughout the nation. . . . The closing of 

the civil docket threatens to disenfranchise all citizens.”2g 

The backlog in state courts was echoed by the Federal 

Courts Study Committee: “The deterioration in the indices of federal judicial performance has been gradual, 

but the expanded federal effort to reduce drug trafficking 

has led to a recent surge in federal criminal trials that is 

preventing federal judges in major metropolitan areas 

from scheduling civil trials, especially civil jury 

U.S. Advisory Commission on Intergovernmental Relations 37 
Court backlog also has a direct effect on county jails 

and other detention facilities. The Minnesota legislature 

ordered Hennepin County to reexamine further changes 

in court procedures before the legislature would approve 

funding a new detention facility. The Hennepin report 

summarized the effect of increased arrests and court backlog on jails well: 

[Tlhe number of people in [jail] on any given day 

is the result of two primary influences. The first is 

. . . police agencies, which decide who among the 

people arrested will be brought to the [jail]. The 

second is the court, prosecuting attorncys, and 

defense attorneys, whose actions determine how 

long people are detained. . . . As a processing facility between the police and the courts, the [jail] 

functions much like a pipeline for the criminal 

justice system. . . . The people and systems adjust 

as much as possible to the added load until it becomes too much. At that point, the pipeline clogs 

and cases start backing up on the court’s calendar 

and, more visibly, in the [jail].30 

As will be discussed more fully in Chapter 5, numerous 

county jails are under court-ordered population caps in 

part because of court backlog, as well as new legislative 

criminal sanctions, increased arrests, and prison backlog. 

The extraordinary growth, which has affected timely 

xesponse ofthe wufis to Civil as w ell as crim‘inal cases and 

has overloaded jails, also has reduced the amount of professional time spent on each case. This has diluted the 

meting out of justice. The California Senate Judiciary 

Committee’s vice chairman was highly critical of the Los Angeles district attorney on learning that three-quarters of the 

“special allegations,” intended by legislators to prevent repeat offcndcrs from bcing granted probation or to increase 

their sentences, were dropped under plea agreements: 

If he really did what the law told him to do, these 

guys wouldn’t be circulating out on the street and 

back through the courts all the time, the state 

senator charged. That’s exactly what we should 

be doing, District Attorney Ira Riener agreed, 

but, if roughly more than 5% [of cases] go to trial, 

everything shuts down. The system is functioning-and I suppose you could put quotes around 

‘functioning’-bccausc only 5% of the cases are 

going to trial.31 

Why Do “Criminals” Go Free? 

Although we are taught that a person is innocent 

until proven guilty, the fact that 45percent ofarrestsare 

not prosecuted is a source of public frustration and, at 

times, anger that “criminals have gotten off on a technicality.” Figure 2-2 outlines the principal decision points that 

may result in an “arrestee” not being prosecuted. 

Prosecutors control the case outcome at more decision points than any other officiaL3* Indeed, the prosecutor may be the most powerful criminal justice actor in the 

system. In almost all states, cases will not be initiated without the prosecutor’s dccision or concurrence to press 

charges against the defendant. Typically, the prosecutor 

controls how serious a charge will be brought. At any 

point, the prosecutor has the sole power to decide that the 

charge@) will be dropped (nolle prosequi). The prosecutor 

also may move to enhance or to reduce the charge, which 

frequently affects the defendant’s decision to plead guilty.” 

The judge or jury can act only on the charges brought. 

Figure 2-2 

Qpical Outcome of 100 Felony Arrests Brought by the Police for Prosecution, 1988 

6 

Diverted 

or Referred 

Arrests 

by the Carried - 

Police Forward 

Brought 55 

for 

Prosecution 

18 21 

Rejected Dismissed 

at Screening in Court 

1 

Acquitted 

18 

Sentenced 

+ to Incarceration 

of 1 Year or Less 

(Jail) 

-

Disposed 1 

by Guilty Plea 

14 

Sentenced 

of 1 Year or More 

(Prison) 

+ to Incarceration 

22 - Sentenced 

to Probation 

or Other 

Conditions 

(Community) 

Source: U.S. Department of Justice, Bureau of Justice Statistics, The Ptvsecirlion of Felony Am& 1988. 

38 U.S. Advisory Commission on Intergovernmental Relations 
The mission of the prosecutor is not just to prosecute, 

but to successfully prosecute guilty parties. “I don’t believe in filing a case just because the cop thinks that the 

guy’s going to plead guilty. If we can’t make the case, I 

don’t file it. It means I’m doing my job, that I’m not a rubber stamp for the cops.”34 The prosecutor is looking for evidence that there is probable cause that the person is 

guilty. For example, if everyone present in a household 

during a drug bust is arrested, the prosecutor may have to 

refuse to file charges against several who may have been 

bystanders, or else file a lesser charge, diverting the case 

to misdemeanor court. 

Although the judiciary makes the ultimate decision 

on constitutional issues, the prosecutor’s office is a key 

place where constitutional protections must be recognized 

if prosecution is to be successful. In criminal cases, the 

most crucial court rulingsare interpretations of thefedera1 Bill of Rights, cited below (emphasis added), or parallel provisions of state constitutions: 

me &urth Amendment-The right of the people to be 

secure in their persons, houses, papers, and cffccts, 

against unreasonable searches and seizures, shall not be 

violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the 

persons or things to be seized. 

The Fifth Amendmed-No person shall be held to answer for a capital, or otherwise infamous crime, unless 

on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in 

the Militia, when in actual service in time of War or 

public danger; nor shall any person be subject for the 

same offence to be twiceput in jeopardy of life or limb; 

nor shall be compelled in any criminal case to be a witness against Me& nor be deprived of lqe, libee, orpmperty, wtlhoutduepmess of law; nor shall private property 

be taken for public use, without just compensation. 

lk Sxfh Amendment-In all criminal prosecutions, the 

accused shall enjoy the right to a speedy and public triul, 

by an impartial jury of the State and district wherein the 

crime shall have been committed, which district shall 

have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be 

confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and 

to have the Assistance @ Counsel for his defence. 

llae Eighth Amendment--Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 

lk Meenth Amendment-(in part) . . . No Slate shall 

make or enforce any law which shaU abridge the privileges 

orimmuwl ‘ ‘es @citizens of the United Slates; nor shall any 

State deprive any person of life, liberty, or property, 

without &u?pmess @law; nor deny to any person within 

its jurisdiction the equal protection of the laws. . . . 

In this review of intergovernmental relations, there is 

no need to examine the many specific court rulings that 

have applied these provisions to check the police power of 

the state. It is necessary only to emphasize that this is the 

proper role of the judicial branch. Individuals elected to 

the executive branch and to the legislative branch may feel 

that they cannot carry out what they perceive to be the 

popular will of the people because of these court rulings. 

However, this same struggle was at the heart of the original constitutional debates. Those who insisted on adoption of the first ten amendments as a condition of their 

support for the constitution prevailed in enshrining the 

principle that the will of the majority will be constrained to 

protect the rights of the individual. 

In a discussion of the politics of criminal justice, however, it is relevant to note that there is a strong movement 

to limit the challenges (habeas corpus petitions) that a 

prisoner can make to state conviction in the federal courts 

based on federal constitutional grounds. (Habeas corpus is 

literally translated “produce the body”and is a petition to 

a court to review the legality of a person being detained.) 

A major element of the 1991 presidential crime package was to severely limit federal court review of state criminal convictions. In calling for a limit on federal habeas 

corpus petitions, the 1990 report of the Federal Courts 

Study Committee pointed out that the 537 habeas corpus 

petitions filed in federal court in 1945 had grown to 10,521 

in 1989.35 While this 20-fold increase is far in excess of the 

four-fold growth in the prisoner population since 1945, it 

should be noted that in the last 15 years habeas petitions 

have increased onlyat half the rate of prisoner population 

increases. The fact that an offender is only half as likely to 

appeal as 15 years ago may be attributable to changes in 

the makeup of the federal bench, making a successful appeal less likely, or it may reflect the accommodation 

throughout the criminal justice system to earlier constitutional decisions, making such suits less necessary. 

Retired Associate Justice Lewis Powell headed an Ad 

Hoc Committee on Federal Habeas Corpus in Capital 

Cases. Its 1989 report concluded that capital cases “should 

be subject to one fair and complete course of collateral review in the state and federal system, free from time pressure of impending execution and with the assistance of 

competent counsel.” Chief Justice William H. Rehnquist, 

in reaffirming his endorsement of the Powell committee’s 

report in 1992, observed that: 

[Clapital habeas presents essentially a question of 

federalism-striking the proper balance between 

the lawful authority of the states and the role of 

the federal courts in protecting the capital defendant. The present system accomplishes neither 

purpose very well . . . [collateral review] will go a 

long way towards removing one major source of 

friction between the state and federal 

The collateral review proposal would compensate for differences in state laws governing capital cases. Some states 

do not provide counsel for indigents during the appeal 

process, some do not fund the cost of investigations or expert witnesses, and some do not permit new evidence to be 

entered on appeal even for someone facing a death senU.S. Advisory Commission on Intergovernmental Relations 39 
tence. In contrast, proposals to achieve finality in dcath 

sentence decisions by enacting shorter time limits or 

otherwise limiting federal habeas appeals are based on the 

assumption that all defendants have had the same chance 

to make their case. 

Sharp restrictions on federal writs of habeas corpus 

from state court convictions would place greater importance on state laws. In some states, this could lead to 

greater protection of defendants’ rights, as noted in the 

1989 ACIR study State Constitutions in the Federal System.37 

Many state constitutions have spelled out greater restrictions in such areas as obtaining evidence and determining 

probable cause. These greater protections can prevail 

even now. If a state court has included a “plain statement” 

that it is basing its decision on “independent and adequate” state grounds, the US. Supreme Court held in 

Michigan v. Lon$* that it should not hear an appeal of such 

a state ruling. However, recent rulings by the New Jersey 

Supreme Court-State v. Molli~a~~ (1989) and Srate v. 

MintepO (1989)-held that evidence obtained by FBI 

agents under less restrictive federal requirements can be 

used in a state criminal proceeding as long as it cannot be 

proven that state/local officials and federal agents had 

acted in concert to circumvent more exacting state laws regarding wire taps, search warrants, and the like. 

Even when state laws prevail, defense advocates 

worry that while some states may choose to move further 

than the federal government, there needs to be a floor to 

pressure law enforcement systems in other states to observe the basic protections of the federal Constitution. 

Given the heavy reliance on the U.S. Constitution in this 

century to assert defendant rights, it also will take considerable time for states to build a body of case law interpreting state constitutional provisions that are adequate to 

guide law enforcement activities. Finally, the opportunity to 

have a state conviction reviewed in a federal court after the 

appeal of the original finding of guilt has been exhausted is 

particularly important to the poor. If an offender was not 

well represented oripally and relevant constitutional challenges were not raised, they may not be raised in appealthey may only be raised under a writ of habeas corpus. 

In the daiiy functioning of the criminal justice system, 

the prosecutor’s office is the critical focus for constitutional 

rights decisions. Was the evidence obtained properly? Is it 

sufficient to indicate probable cause? The degree of case 

screening done by the prosecutor’s office before the charges 

are filed varies. Jurisdictions with high rejection rates of arrests through screening by the prosecutor’s office prior to 

court filing have lower rates of court dismissals. Those with 

low arrest rejection rates have higher dismissal rates.4l 

Case screening has a major impact on the entire local 

criminal justice system. Jail or other detention facilities 

may hold people needlessly. Staff and professional time 

throughout the system is wasted just in processing the required paperwork. The earlier the case can be knowledgeably screened, the less waste there will be of system resources. Nevertheless, the number of prosecutor’s offices 

that review cases before a preliminary court hearing has 

dropped to only half. Early screening was most prevalent 

in the West and Midwest, and used least in the 

The first and most productive way to improve cas 

screening is at the point of arrest. Some prosecutor’s 01 

fices have set up regular communication and training wit 

law enforcement agencies to heighten the officers’ aware 

ness of where arrests are weak. This is particularly impor 

tant in fast-growing or high turnover departments becaw 

younger officers tend to make arrests at a higher rate thal 

older officers.43 

It is not always possible to train all officers on the bea 

adequately, however. Faced with severe overcrowding 

the Hennepin County sheriff requested the Minneapoli 

police department to require that a watch command su 

pervisor approve all “probable cause” arrests. (Althougl 

not referred to as “probable cause” arrests in other juris 

dictions, these are the type of arrests in the earlier exam 

ple, where everyone in the room is arrested in a drug bust. 

These types of bookings in Hennepin County resulted ir 

people being held in the detention center 25 percent long 

er before they were released or charged than persons whc 

were formally charged.44 

Even with improved communication and training 

the philosophic push behind increased arrests simp11 

may be transferred to produce an impact on anothei 

part of the system. “Police officers have become so fa. 

miliar with what felonies the district attorney will and 

will not accept, that they routinely bypass the D.A.’sof. 

fice submitting to the city attorney hundreds of cases 

each week that are then prosecuted as misdemeanors in 

Municipal Court.’’45 

Shorter time limits between arrest and filing 

charges is another way to reduce the number of person! 

held in jail who may not be charged. This actually may 

also improve investigative work, according to the Naq 

tional Center for State Courts: 

In most criminal cases, the evidence that police 

have at the time of arrest is the evidence that 

the prosecution will have to rely on at trial. 

Cases rarely get stronger with the passage of 

time. Forcing the police department to focus its 

energies and its investigative resources within 

that 36 hours after arrest may, in fact, result in 

better cases being presented for prosecution. 

The luxury of having 50 or 60 hours afterbooking to present a case can result in an indifferent 

“let the detectives handle it tomorrowattitude” 

which does not enhance the resolution of criminal investigations.& 

Such examples of improved communication and coordination between elements of the criminal justice system 

may create greater efficiency, but they will not necessarily 

reduce all sources of tension between the prosecutor, who 

is independently elected in all but five states, and the multiple law enforcement agencies within his or her jurisdiction. Different philosophies may be represented. In addition, if the staffing of the prosecutor’s office has not kep! 

pace with increased arrests, the priorities of the prosecul 

tor may grow even more distant from the activities of lad 

enforcement officers. According to a 1989 seven-part sel 

ries in the Los Angeles limes, 

40 U.S. Advisory Commission on Intergovernmental Relations 
[only] four in every ten adult suspects arrested by 

the Los Angeles Police Department for the most 

serious crimes had either felony or misdemeanor 

charges filed against them. A decade ago, the filing rate was double that. . . . In 1970,30% of all 

adult suspects arrested in Los Angeles for Part I 

crimes-homicide, rape, robbery, aggravated assault, burglary, larceny and vehicle thcft-had 

felony charges filed against them. By 1980, the 

rate dropped to 21%. By 1989, it was 17%.47 

The drop between 1980 and 1989 is explained in part by a 

1986 law requiring officers to make arrests in domesticviolence situations, even when prosecution is unlikely. Nevertheless, high increases in arrests have not been translated into equally high increases in prosecutions, even 

though-and in part because-the caseload of the prosecutor’s office doubled during the decade of the 1980s. 

The series went on to report that, “Like their counterparts in local law enforcement, federal authorities say many 

crimes that once were vigorously investigated are now tossed 

aside, largely because prosecutors are too busy with more serious offenses.” FBI spokesman Fred Reagan said that: 

[I]n the spirit of accommodation, the FBI and the 

U.S. attorney’s office agreed upon filing standards so neither agency would waste time or effort pursuing insignificant or probably unprovable cases. We found in recent years that our 

people were running around and spreading themselves too thin on cases that didn’t have a lot of 

‘quality’ to them.48 

Quality seemed to be a fighting word in this look at police/ 

prosecutor relations. Local prosecutors were quoted as 

saying that “with arrests increasing, the quality of many 

Police Department investigations has declined, leaving 

them little choice but to reject outright or try to scttle by 

pleabargain a growing number of cases that cannot be won 

in court.” A police detective was reported to have 

“snapped,” “Prosecutorial discretion is the biggest problem in the system today. . . . They will only file cases that 

my 10-year-old son could successfully pro~ecute.”~~ 

Thus, unrelenting growth can exacerbate the tension 

inherent in the checks and balances of the criminal justice 

system. When increased law enforcement resources are 

not matched by an increased capability to process these ar- rests and a case is dropped, law enforcement officials feel 

ill-served, whether the case was dropped for valid consti- tutional concerns or not. With significantly greater public 

trust in the police than in the “court,” police complaints 

about the criminal justice system carry political weight. 

General government elected officials find themselves 

caught in the middle in trying to address the public’s con- cern: “Why do ‘criminals’ go free?” An important starting 

point for the discussion that must be fostered is that it is 

not as simple as saying “the court” is too lenient. 

Right to Counsel 

For those who believe that the judicial system is letting criminals off too easy, the fact that tax dollars may be 

paying for their defense is, at the least, politicallyunpopular. This attitude was exemplified in administrative interpretations that federal war on drugs money would not be 

used to fund the “enemy,” which made it necessary for 

Congress to insert specific support for public defenders in 

intergovernmental grant legislation. 

A constitutional right to be represented by a lawyer 

has been established through U.S. Supreme Court rulings 

over the last 60 years. Initially, the Sixth Amendment 

“right to counsel” was applied only to federal prosecutions 

and, usually, was interpreted to mean that the accused 

only had the right to retain an attorney, not to have one 

provided. In 1932, Powell v. Alabama extended this protection to the states through the due process clause of the 

Fourteenth Amendment. “The volume of indigent representation remained relatively modest, largely subject to 

judicial discretion and highly varied between jurisdictions 

until 1963. That year, in the landmark case of Gideon v. 

Wainwright, the Supreme Court ruled that a lawyer must 

be provided for a person without funds who is tried for a 

felony offense.”5o 

The Bureau of Justice Statistics (BJS) estimates that 

over 40 percent of felony defendants are classified as indigent. However, in many large cities where poverty is most 

prevalent, the number is far higher. For example, according 

to the local Bar Association, most defendants in Baltimore 

City are represented by the Office of Public Defender. 

Therefore, it is important that only 10 states rely solely on 

local funding for public defender offices, while 20 states have 

state-supported systems, and in eight other states more than 

half of public defender funding is provided by the state.51 

The remaining states use systems of private counsel. 

In 60 percent of all counties, predominantly in the 

South, judges assign counsel from a list of available private 

attorneys. This is down from 72 percent of the counties in 

1973, as more public defender offices have been established. 

In fact, 43 of the 50 largest counties, with over two-thirds of 

the nation’s population, use public defender offi~es.’~ 

Assignment of counsel can be made at initial booking, 

but it is often made at the first appearance before a judge. 

One-third of all counties responding to a national survey 

reported that they provide a lawyer within 24 hours of arrest. In 42percent of the counties, however, it took longer 

than 48 hours, increasing the need for jail beds. Early 

representation is more likely to occur in counties with 

public defender offices.53 

Early and adequate representation has become not 

simply a constitutional question. Just like early case 

screening by the prosecutor, it can also reduce system 

overload. Indigent persons who are not represented-or 

who are represented by a lawyer who is not preparedmay have more serious charges brought against them. 

They will be more apt to remain in jail because of higher 

bail, reflecting the more serious charge, or because no alternatives to bail are negotiated. More serious charges 

also will reduce the defendants’ negotiating position in plea 

bargaining, making them more apt to receive longer sentences and to actually serve time than nonindigent persons 

committing the same criminal act. Each of these outcomes of 

inadequate counsel increases public expenditures. 

U.S. Advisory Commission on Intergovernmental Relations 41 
In March 1990, St. Louis City sued thc state of Missouri in federal court to fund more public defender positions. This followed the federal court having found the city 

in contempt for exceeding the court-imposed cap on its jail 

and workhouse populations. Ninety percent of the inmates in the workhouse were awaiting trial. According to 

the city’s director of human services: 

Crowding at the workhouse and understdfing of 

public defenders are directly related. When the 

inmate population became a problem early this 

year, . . . she talked to a dozen officials whose 

agencies influence inmate population. “When I 

went around and said, ‘What went wrong? What 

is it?’, one thing everyone said was: ‘We need 

more public defenders.’ Adding public defenders 

is a sensible and cost-effective way to eliminate 

overcrowding. The alternative, which is to construct additional prison space, would be much 

more costly and would do nothing to improve the 

inmates’ rights to a speedy 

Each attorney in the felony section of the state Public 

Defender’s Office in Baltimore City handles more than 

400 felony cases a year. This is more than two and a half 

times the ABA standard of 150 felony cases. “Without 

Public Defender or other adequate representation for indigents, the cases cannot be prosecuted no matter how 

much funding is available to the Police Department, the 

jail, or other components of the criminal justice system.” 

The office has ceased to employ experts because of budget 

cuts. The head of the Maryland Public Defender Office 

“suggested that the situation may not improve unless 

someone at the State level understands the significance of 

the Sixth Amendment right to counsel.”55 

The challenge to general government elected officials is 

to balance the political unpopularity of funding public defenders with pragmatic considerations of avoiding costly system impacts. For many, finding the balance will cany out 

their oath “to uphold the constitution” by assuring that individual rights are not overwhelmed in dealing with growth. 

Speedy Rial 

Because the criminal justice systcm is essentially 

closed, it reacts like a giant water balloon. If one area is 

restrained, it will pressure another. As was noted on the 

civil side, the more cases that come in and are not heard, 

the longer it will take for any given case. On the criminal 

side, the Constitution provides for a speedy trial for cach 

case. Because of this restraint, the system cannot “respond” by taking longer. For the elected official who is 

concerned about the cost of supervising offenders awaiting trial, this is a welcome restraint. For the electedofficial 

concerned about criminals receiving proper punishment 

and/or justice, it may not be. 

Most states and the federal government have adopted specific time standards, although 15 states and the District 

of Columbia either simply prohibit “unreasonable delay” 

or have no statutory ~equirement.~~ There are many variations of these speedy trial acts. But, no matter what the 

spccificd time limit for each stage or for the process as a 

whole, most speedy trial acts set shorter time limits if the 

person is detained. Continuances requested by the defense are not included. If any time limit is exceeded, the 

case may be dismissed. 

According to a 1987 Bureau of Justice Assistance 

(BJA) survey, courts processed 1 percent of all cases immediately following arrest. It took less than 3.5 months to 

process half the cases. Within six months of arrest, courts 

had disposed of 73 percent of the misdemeanor cases and 

68 percent of the felony cases. For felonies, the average 

time from arrest to sentencing was seven months in 1988. 

This is two weeks longer than in 1986, which has exacerbated jail overcrowding in many jurisdictions. Although if 

takes slightly longer in large urban courts (75 largest mum 

ties), the delay between arrest and sentencing has not in. 

creased since 1986.57 

Speedy trial acts set maximum trial limits. There is thc 

further consideration, however, that most cases shoulc 

not take that long. Such concern may stem from: 

Practical attempts to cut system costs; 

The penology tenet that swift and sure punishment is more effective than lengthy punishment; and/or 

The philosophic belief that “Justice delayed 

is justice denied.” 

In an attempt to reduce delay for most cases, whiled 

lowing for extraordinary circumstances, some state legis 

latures or court systems have set overall standards. For ex 

ample, the Minnesota legislature has required thc 

judicial districts meet the following standards by July 1 

1994: 90 percent of criminal cases to be disposed within 12 

days, 97 percent within 180 days, and 99 percent within 36 

These requirements reflect the ABAs recon 

mended standards. 

Moving more criminal cases within speedy trial con 

stitutional restraints has been achieved in most systemsb 

compressed decision processes and, secondarily, by id 

creased administrative efficiency. For reasons discussed b 

Chapter 7, it seldom has been achieved by proportioq 

across-the-board personnel increases. 

Case Management 

“Compressed decision processes” can mean chang’ 

procedural requirements for more effective case manaq 

ment. Too often, however, it is simply a euphemism for 

ing forced to spend less time on each case in order to h 

dle more cases. Forced “compression” has senten ’ 

ramifications. However, before considering these effe 

a brief review of improved case management as a co 

structive alternative will shed some light on how far and 1 

what means any given court system’s capacity might M 

stretched to accommodate growth without resorting tc 

“compression.” 

During the year ending June 30,1989, there were a 

estimated 19 million admissions and releases from loca 

jails.59 In the 75 largest counties that handle two-thirds 0: 

all felony prosecutions, this translates into hundreds t( 

42 U.S. Advisory Commission on Intergovernmental Relations 
thousands of offenders on any given day who should move 

from one step to another in thc criminal justice proccss. 

Each day of delay imposes an avcragc of over $50 pcr pcrson in jail costs alone. A minor loss of efficicncy-5 pcrcent of the people awaiting trial in a 300-pcrson jail bcing 

delayed just four days-will cqual ovcr $500,000 a ycar. 

The Federal Courts Study Committcc assertcd, 

“Case management and thc better utilization of modern 

science and technology are areas in which the burdcn of 

reform falls squarely on the judgcs thcmsclvcs.’’60 This 

statement underestimates the general government budget problems of funding improved technology at the same 

time that costs resulting from lack of such improvements 

still have to be met. Nevertheless, it is true, first, that judicial officers must be willing to change time-honored ways 

of doing business. Depositions can be videotaped; oral arguments can be made over a speakerphone; plcadings, 

court orders, and other court papers can bc filed elcctronically; and closed-circuit television can rcduce the necd to 

transport prisoners to and from the jail. 

While police and courts aren’t anywhcrc near 

taking full advantage of the technology that’s out 

there, some jurisdictions are putting thesc tools 

to dazzling uses, [including] optical scanning and 

digital storage of court briefs for rapid cross-town 

or cross-state transmission. . . . New Jersey’s suspects become bytes the second they’re booked, 

and are then electronically tracked throughout 

their time in the legal systcm, from arrest 

through probation. . . . In the most advanced circuit courts in Florida, sheriff’s dcpartmcnt staffers punch in (or optically scan) all such information, and the county court has instant access to 

it, . . . the sheriff’s department has access to the 

whole court proceeding, including final disposition of the case. The state attorney’s and public 

defender’s offices are tied into the system, too.. . . New Jersey is actually close to the paperless criminal justice System6’ 

Case management not only involves technology, it 

also involves procedural changes. Minnesota’s Fourth Judicial District revised its Judicial Assignment Plan to provide for “single judge” continuity in criminal cases. In 

1987, felony trial continuances averaged 6.8 pcr day. That 

figure dropped to 4.5 in 1988 and to only 1.1 per day during 

the first half of 1989, at least in part bccausc continuanccs 

could no longer be used to shop for a judgp6* This kind of 

success underscores the position of thc National Center 

for State Courts that case management rests on the willingness of judges to take control of thc calcndar away from 

the 

The American University Adjudication Tcchnical Assistance Project’s “Differentiated Case Managemcnt-Expedited Drug Case Management Program” rcprcscnts an 

even larger procedural change. It is based on early evaluation of each case by the defense and prosecutor that puts 

the case on one of three tracks: expedited, standard, or 

complex. “The main point of this approach is that whatevcr thc outcome of a case is going to be, determine it and 

have it occur sooner.”M Preliminary findings from the nine 

major projccts currently being funded showed an increase 

from only 11 percent of drug cases being disposed of in 90 

days to 88 percent. For example, Philadelphia’s use of differential case management in 1990 reduced its average 

case processing time by 70 days and freed 400 jail beds per 

day. Philadelphia’s approach allows no plea bargaining for 

cases placed on the expedited track, and the court administration keeps close track of these cases to assure that 

they are not dela~ed.6~ 

Moving cases more expeditiously also requires looking at the supporting network, for example, forensic laboratory capacity. “It seems to take forever to get murder 

weapons and fingerprints tested by the police lab,” according to one 26-year police veteran in Los AngekS In Virginia, the backlog in the state forensic lab serving local 

prosecutors typically resulted in a two-month wait for 

analyses of crime scene evidence for the presence of 

drugs. The time was reduced to 10 working days for 90 percent of the cases through staffing increases and local cooperation in paring down the tendency to request analysis of 

every potential item at a crime scene, rather than what was 

needcd to make the case.6’ 

Reality also points to concerns about whether justice 

is compromised. In Baltimore City, a cooperative effort to 

move sclected cases to expedited trial was launched be- tween the state’s attorney’s office, the public defender’s 

office, the district court, and the city jail. However, in the 

view of the public defender, 

[It] threatens certain constitutional rights. In 

drug cases, the analysis of the substance found is 

often not available and there is no time for independent defense investigation. [Tlhe State’s Attorney picks the people who are eligible, hands us 

the police report and tells us it is true. The client 

is told if he pleads guilty he will be released from 

jail immediately, if not, the average wait in jail is 

47.3 days.68 

Nonetheless, the public defender-who has a strong interest 

in reducing his office’s caseload-provides three attorneys 

and support staff and admits that the program works 85 percent of the time. 

Concerns about the balance between efficiency and 

justice come from advocates of widely differing criminal 

justice positions. “They’re not dispensing justice in Los 

Angclcs,” said a retircd California Highway Patrol officer, 

“they’re dispcnsing cases.”69 Similarly, the ABA, speaking 

for prosecutors, judgcs, and defense attorneys, warned: 

“Surcly our nation-and the AEiAas the national voice of 

the legal profession-recognizes that ‘quantity’ justice 

must not displace ‘quality’ j~stice.”’~ 

There are other case management considerations, 

which will be discussed under budgeting. For purposes of 

understanding the procedures and pressures surrounding 

the sentencing decision, it is adequate to underscore that 

in order to keep individual case decisions from being 

swamped by numbers, it takes proactive comprehensive 

analysis, cooperation with all players accepting accountU.S. Advisory Commission on Intergovernmental Relations 43 
ability for reducing delay, professionalism in court administration, and funds. 

Plea Bargaining 

A decidedly negative view of what reactive case 

management has come to represent was found in an 

otherwise straightforward glossary of criminal justice 

termsappearing in the LosAngeles Times. It defined case 

management as, “A euphemism by judges and attorneys 

to describe plea bargaining.”71 

Plea bargaining does not have a good reputation. It is 

conducted out of the public eye and, assuming the offender 

could have been found guilty, its most visible result is a reduced sentence. Prohibitions against plea bargaining have 

been adopted by Alaska and six of its local jurisdiction^.^^ 

While courtroom drama is a staple on television and 

in the movies, actually, less than 10 percent of cases go to 

trial nationwide. In high-crime cities, even fewer do, with the 

number decreasing since 1986 in every offense category except rape. Nevertheless, even in these cities, the more serious the offense, the more likely the case will go to trial. Forty-four percent of murder cases go to trial, 23 percent of rape 

cases, 15 percent of aggravated assault, 13 percent of robbery, 8 percent of drug trafficking, 7 percent of burglary, 5 

percent of larceny, and 6 percent of all other felonies.73 

Criminal cases do not go to trial for two reasons: the offender pleads guilty (1) as charged initially or (2) to a lesser 

charge through a process of plea bargaining. Approximately 

two-thirds of all felony defendants in the 75 largest urban 

counties who plead guilty do so within 24 hours of being arrested.74 For the remaining one-third of the defendants who 

plead guilty, plea bargaining achieves some degree of individual justice while saving the expense of a full trial. 

Because over 90 percent of criminal cases are settled 

without going to trial, any shift has the potential to produce little relative impact on the 90 percent side but a very 

significant impact on the 10 percent side. For example, requiring “settlement conferences” in pretrial calendars was 

one of a number of changes made in Hennepin County 

(Minneapolis) to relieve jail overcrowding. “Settlement 

rates have been very high, and since the hearings are held 

in advance of the trial date, lengths of stay in the jail are 

reduced.”75 However, because this measure is dealing with 

an already high percentage of cases that are plea bargained (the 90 percent side), there is only a reduction of 

two or three a day in the need for jail beds. 

On the other hand, legislative changes to try to block the 

possibility of a person receiving a reduced sentence can have 

great impact. As the Federal Courts Study Committee observed, ‘Tiaditionally, 85 to 90 percent of federal convictions 

are the result of guilty pleas, generally as part of a plea bargain. Hence, even a 5 percent reduction in guilty pleas 

means a 33 to 50 percent increase in In addition, a 

reduction in plea bargaining will increase the need for jail 

beds for those awaiting trial. Nationally, for 1988, a guilty 

plea case took an average of nearly seven months to complete, compared to 10 months for a jury or bench trial. 

Heavy caseloads also can have a perverse effect on the 

number of cases settled pretrial, thus creating a spiral of 

even more backlog to both the jail and courts. The Baltimore Bar Association study noted that, historically, up to 

20 percent of cases were settled very early in the process, 

at arraignment (the point when the specific charges that 

will be filed against an offender are determined). The 

number of guilty pleas at arraignment has declined to less 

than 5 percent. Lack of early familiarity with the case by 

both the defense and prosecutor because of heavy caseloads was cited as a major 

On the other hand, the use of plea bargaining in some 

jurisdictions may have little relation to crowding. It may be 

a matter of prosecuting style. The prosecutor’s office may 

in fact have overcharged in some cases to improve its negotiating position. If more serious charges or multiple 

charges are filed just to use as bargaining chips, an outsider will have a skewed picture of the incidence of various 

types of criminal activity and the effectiveness of the court 

system in dealing with such crimes. 

Another style is represented by the district attorney of 

Ventura County, California, who has declared a “no plea 

bargain”po1icy. This does not mean that all criminal cases 

in Ventura County are settled by juries. 

It means that prosecutors are more selective in 

choosing the charges they file in each case. Once 

a charge is filed, a defendant is told that he must 

plead guilty to that charge or go to trial. Ventura 

County prosecutors then leave it up to the judge 

to decide the appropriate sentence, rather than 

agreeing upon a sentence and having the judge, in 

effect, rubber stamp the agreement-the way virtually all Superior Court cases are settled in Los 

Angeles. . . . The median prison sentence imposed in Ventura County for all crimes is 48 

months, compared to 28 months in Los Angele~.~~ 

This discussion would seem to indicate that the process is totally in control of the prosecutor. The off-setting 

leverage for the defense is the constitutional protection01 

a speedy trial and the right to a trial. If the offender refuses to plead guilty to the charges presented by the prosecutor, the case must go to trial within the legal time limits 

or be dismissed. A prosecutor may not feel that the 

warrants that much staff time, that there is only a 

able chance of winning on the charge filed, or 

judge will not accept a tougher recommended 

Therefore, the prosecutor is willing to negotiate a lesse 

charge and/or sentence. 

Judicial Discretion 

During a recent speech on judicial-legislative relatio 

a veteran legislator and lawyer pointedly quoted Aristotle: 

“It would be most admirably adapted to the purposes o 

justice, if laws properly enacted were to abandon as fed 

[cases] as possible to the discretion of thejudge.”79 In con7 

trast, a quote more frequently heard during legislative debates cautions that “bad cases make bad laws.” The desk 

able judicial/legislative balance in sentencing may lie 

somewhere between these two perspectives. 

As the Gallup Poll reported, three-quarters of the 

public do not trust the “court” to protect them from crime 

I 

44 U.S. Advisory Commission on Intergovernmental Relations 
Too often in this shorthand reference, “court” comes to 

mean “judge.” The focus of public frustration should not 

be on the “court” but on everything that happens after the 

police make an arrest. It is the system, with its constitutional protections, its procedural traditions, and, incrcasingly, its accommodations to overload, that should be the 

concern of officials elected to represent the public.s0 

Nevertheless, one reaction of general government 

elected officials has been to legislatively mandate sentences. If someone has gotten off too easy, or someone 

might, there is a legislative desire to make sure it never 

happens again. These laws take away the discretion of the 

judge in all similar cases. One hundred offenders areautomatically incarcerated for a longer time, because it is appropriate punishment for the flagrant case. This is in the 

tradition of “bad cases make bad laws.” 

On the other hand, wide-ranging judicial discretion 

can undercut equal justice. Certain judges may consistcntlygive tougherorlightersentences than otherjudges. Studies of the sentencing patterns of judges in Virginia found, 

for example, that for identical charges and criminal histories, six out of 34 judges always gave straight prison terms 

with no probation while seven judges always gave onlyprobation. In another set of matched cases, the average 

length of the prison sentences imposed by different judges 

ranged between one and 14 years.81 Such wide-ranging discrepancies are not superficial statistical happenstance. In 

a recent discussion among judges from jurisdictions surrounding Washington, DC, each judge had distinctly different priorities in dealing with the drug problem: treatment of the drug-dependent offender, punishment for the 

crime committed, or public safety. Not surprisingly, “No 

consensus was reached.”82 

The public’s perception of “soft-hearted” judges has 

been confirmed in recent studies. In a national survey of 

79,000 persons placed on probation in 1986,21 percent had 

not been recommended for supervision in the community 

in the pre-sentence rep0rt.8~ In a one-year survey of serious cases in an Iowa judicial district, while probation officers and judges tended to agree on the sentencing of the 

first-time offenders, probation officers recommended incarceration for repeat offenders almost twice as often as 

judges imposed In a Los Angeles Times survey of 1,800 

superior court cases, probation officers recommended 

that defendants be denied probation and sent to state prison 

52 percent of the time. Yet in 25 percent of those instances, judges granted defendants probation on condition that they first go to county jail, where inmates serve 

far less time than in prison.85 

Nevertheless, because of judicial independence, 

“tough” judges have frustrated general government officials trying to reduce the time served in overcrowded prisons and jails as much, or more, than “soft hearted” judges 

have frustrated officials championing tougher penalties. 

For example, both of the Oregon legislature’s initial cfforts to establish capacity-restrained sentencing guidelines and the Virginia legislature’s 1982 increase of “good 

time” applied only to felonies. Each resulted in major unforeseen impacts on jail populations. Judges and prosecutors countered the legislative intent by changing felony 

charges-which carry the reduced time to be served as a 

state prisoner-to misdemeanor charges because more 

time would actually be served, even though it was “only” in 

the local jail. 

Following an unfavorable ruling by a state district 

court that the state owed $40 a day for state felons backed 

up in local jails because of prison overcrowding, Texas officials placed the blame for overcrowding “squarely on the 

shoulders of the judiciary.. . . You can’t lock everyone up.” 

Of course, to the degree that sentencing decisions have 

added to overcrowding, the prosecutors also are responsible. Judges typically rubber stamp 90 percent of the sentences that are plea bargained. However, the 10 percent of 

the cases that the judge will hear are generally more serious, as noted earlier, and have the potential of significantly longer sentences and, therefore, proportionately greater system impact. 

In fact, some judges want to be tougheryet, by elimi- nating parole. “[Tlhe public’s proper concern with sentencing disparity is primarily a result of the disparity between the sentence imposed and the sentence actually 

served.”86 The 1990 conference of judges from Maryland, 

Virginia, and the District of Columbia, previously referred 

to, produced this exchange: 

A judge wanted to know if judges were sentencing 

solely for punishment or whether they were sentencing for punishment and rehabilitation goals. 

His question was related to “whether release on 

parole sooner than the judge had intended meant 

that the judge was not carrying out the punishment objective effectively. [Another] judge 

shared his concern that the sentencing power of 

the judge was being undermined in the eyes of the 

public who may believe that the judge is responsible for the short period of time that an offender 

may serve in prison?’ 

Before looking at the role played by parole in sentencing, however, a summary comment on the judicial role is in 

order. There is no single focus for the effect that judges have 

on the criminal justice system. Judicial discretion raises con- flicting reasons for concern, admonition, and frustration. 

Concern is growing because judges are playing a reduced role in crowded court systems, as more and more 

cases are being decided through plea bargaining. In its best 

light, plea bargaining allows judges and juries to focus on 

serious cases and difficult factual situations. In its worst 

light, plea bargaining is inappropriately taking the place of 

impartial judicial review. 

Concern also has surfaced that mandatory sentences 

remove the possibility of dealing with individuals, even in an 

overloaded system. Removing judicial discretion also removes an important avenue to reduce the number of offenders who should not be clogging the correctional system. 

But these concerns about the reduced role of judges in 

sentencing are balanced by the admonition of many elected 

officials that “judges are the most difficult to get involved.” 

A county official, who doubted that judges even know that 

jails are overcrowded, observed, “They have tunnel vision or 

‘black robe disease’.” They believe that under the separation 

US. Advisory Commission on Intergovernmental Relations 45 
of powers they should not be involved in operational issues. 

Therefore, judges do not know, or refuse to realize, the impact of their actions on the system.Ss 

Finally, frustration is the direct result of a conflict between perception and reality. A public perception that 

judges are responsible for arrestees being dealt with ineffectively may lead to legislative “solutions” that create 

greater problems. 

Parole and Determinate Sentencing 

In a 1990 gubernatorial campaign, the successful candidate vowed no parole for violent criminals or major drug 

dealers. State Legislatures carried an estimate that this noparole plan would require more than $1 billion in prison 

space over the next 10 years for the state in In 

most cases, cost alone is enough to end serious consideration of abolishing parole. Only Maine has abolishcd parole, but nine other states have abolished parole board discretion by adopting determinate sentencing?O 

The dissatisfaction remains, however. Undoubtedly, 

some legislators voting on mandatory sentencing bills bclieve that they are denying parole because the legislative 

language may state that the sentence is “to be served without probation.” Such a reference only prohibits a judge 

from suspending the sentence; the offender must serve 

time behind bars. However, as the chief patron of a mandatory two-year weapons bill fumed on finding out that offenders sentenced under his bill were out on parole, “Probation. Parole. I didn’t know there was a diffcr~nce.”~~ 

By the turn of the century, almost all state legislatures 

and the Congress had adopted systems of parole based on 

indeterminate sentencing. This movement was an outgrowth of a “medical model” of corrections, which assumes that the purpose of incarceration is to change the 

offender’s behavior rather than simply to punish. Sentencesare not indeterminate in that there is no limit to the 

length of time an inmate may serve. The court sets the limit when it pronounces sentence (e.g., three to five years). 

What is indeterminate is how much of that time thc offender will actually serve. 

Determining Eligibility for Parole 

The role of the parole board is to review an inmate’s 

record at intervals specified in the state code and todccide 

whether he or she should be released. This decision is 

based on several considerations, such as the nature of the 

crime, previous criminal behavior, thc inmate’s record 

while incarcerated, victim statements, statements on the 

inmate’s behalf, and the inmate’s parole plan for employment and living arrangements on release. 

Parole is not automatic, and how readily it is granted 

varies considerably from state to state. Prior to 1976, when 

Maine became the first state to abolish parole, 77 perccnt 

of that state’s eligible inmates were paroled?’ Whereas, in 

Virginia, throughout the 1980s, only 35 percent of the inmates typically were released on their first eligibility date. 

That first eligibility date has been determined by the legislature to be no sooner than one-quarter of the sentence 

for first offenders, one-third for second offenders, and 

half for those convicted for a third time or more. Annual 

parole board reviews are conducted for those not released. On their second eligibility date, 45 percent of the 

inmates in Virginia are granted parole; 35 percent on their 

third; 29 percent on their fourth; and only 17 percent on 

their fifth eligibility date or m0re.9~ 

As in most states, the computation of eligibility dates is 

not based on the sentence given by the court but on the sentence as reduced by legislatively determined rates of good 

time. Good time may be automatic if there are no infractions. Additional good time may be earned by participation in 

rehabilitation or extraordinary service, such as fighting forest 

fires. While good time may have been adopted originally to 

encourage constructive prisoner behavior, in reality, legislatures have increased good time allowances recently almost 

exclusively as a way to reduce prison population growth. It is 

common for good time credits to reduce the sentence originally imposcd by one-third to one-half. 

The combination of parole and good time means that 

most offenders scrve considerably less than half of their imposed sentences. As distressing as this may be to some, it 

must be balanced with America’s already high rate of imprisonment and the costs if the rate is substantially changed. 

Nevertheless, the federal government may have 

started a trend in the opposite direction. The 1984 SentencingReform Act not only abolished parole for federal crimes 

committed after October 1987, it also sharply curtailed 

any good time reductions. Federal prisoners will receive 

good time credit for no more than 15 percent of the original sentence, whereas in the past, they served an average 

of 33 percent of their original ~entences.9~ 

Goals of Parole 

As part of a system of checks and balances, two goals 

can be served by parole. First, sentencing disparities from 

one judge to another may be tempered. The parole board 

sces many more cases than any given judge and, potentially, can play a significant role in achieving equal justice. FOI 

example, someone receiving 10 years on a marijuana dis. 

tribution charge may be paroled on first eligibility, where. 

as someone given only five years may not. 

Secondly, parole can serve to individualize justice 

Too often, the focus of public discussion is on how early an 

inmate can be released, as if all were. Parole not only allows for early release of individuals who seem to have responded constructively to having been incarcerated, it also 

allows for holding other individuals for the maximum time. 

Just as judicial discretion means sentencing according 

to the individual and the circumstances of the crime, parole is based on looking at how each individual has responded to a period of incarceration. Eliminating parole 

would make the judge’s decision at a given time absolute, 

by eliminating discretion at a subsequent point in the systembascd on the fact sat that later date. Some judges have 

even argued that granting parole (an action taken by the 

executivebranch of government) is a violation of the separation of powers in that it is the legislative role to make the 

law and the judicial role to carry it out. It is ironic when 

judges who want to abolish the discretion of parole are 

among the advocates of judicial discretion when legislators discuss mandatory sentencing laws. 

46 U.S. Advisory Commission on Intergovernmental Relations 
1 

3 

g 

1- 

be 

-7 

ire 

le 

le 

:n 

re 

aaMost judicial advocates for abolishing parole are not 

simply speaking to truth-in-sentencing, under which the 

bench conveys to the public information on legislative 

statutes governing good time and parole eligibility. Rather, this view-which was also reflected in the Federal Sentencing Commission that abolished parole-is that the 

public wants everyone to serve the full 10years. This is the 

“just desserts” model that punishes the crime rather than 

the criminal. The “just desserts” model grew out of the belief that the “medical model” was, indeed, an apt reference to describe the rehabilitative philosophy of corrections because curing an individual’s criminal behavior 

through criminal sanctions was no more certain than curing the common cold. 

Two opposite reactions to the failure of the medicall 

rehabilitative model have converged toward the same end: 

abolish parole. The push for harsher penalties, which 

could be achieved by abolishing parole, has already been 

discussed. Opposition to parole also has becn based on the 

argument that, as practiced, parole does not serve equal 

justice. “Some were spending years behind bars for minor 

offenses because they failed to make a satisfactory showing of a cure, while others were able to con parole boards 

with shows of sincerity, then go out and commit new 

crimes.’ws In fact, it was prisoners’ advocates in California 

who lobbied to make it the first of nine states to drop indeterminate sentencing. 

By the beginning of the 1980s, the National Academy 

of Sciences noted that the replacement of the indeterminate sentence and the rehabilitation ideology with a “just 

desserts” philosophy and fixed sentences has been widely 

hailed by persons of diverse political ideology, either: 

rn To end coerced treatment and protect offenders rights, 

As justification for more severe punishments, or 

As a “utilitarian stance” emphasizing social defense and incapacitation as the primary goal?6 

Such legislation has resulted in a decline in discretionary release of state prisoners on parole from almost 72 

percent of all releases in 1977 to 39percent in 1989. It must 

be noted, however, that the proportion of inmates serving 

their full sentences has not increased (Figure 2-3) due in 

part to mandatory releases forced by population caps that 

have been triggered by overcrowding?’ 

rn 

Summary 

Guaranteeing basic rights to all individuals was a major issue in the adoption of the U.S. Constitution, and fear 

of unbridled police power in the Crown gave particular importance to the rights of those accused of crime. As a result, state and federal bills of rights and the noncentralized structure of America’s criminal justice system were 

shaped to check the dictates of any one official and to preserve the rights of the accused, even against the will of the 

1 oa 

3 

I¶ 

0 

a 

E 

.!i 

W 

I 

Figure 2-3 

Change in npe of Release from State Prisons, 1977-1989 

Supervised ’ in Community 

Source: Derived from US. Department of Justice, Bureau of Justice Statistics, Probatiorl mid Parole 1989. 

U.S. Advisory Commission on Intergovernmental Relations 47 
majority as represented by elected officials in the legislative and executive branches. 

The arresting officer, prosecutor, defense attorney, 

the court officer charged with determining the criminal 

and personal history of the accused, the sentencing judge, 

probation or institutional corrections officials, and parole 

authorities are all charged with independently weighing 

the actions of an individual brought into the criminal justice system. Restraints on anyone element of review affect 

the power of the others. 

The extraordinary growth in the number of people be- ing handled by all aspects of the criminal justice system has 

strained these checks and balances and the functioning of 

the system. When increased law enforcement resources 

are not matched by an increased ability to process these 

arrests, police and/or sheriffs’ deputies feel ill-served. 

When large caseloads reduce the time to consider evidence and relevant sentencing factors, typically, the role 

of the prosecutor is strengthened and longer periods of in- carceration may result. When court management does not 

keep pace with growth, detention facilities become overcrowded and plea bargaining becomes more of a necessity 

than an option. Finally, when correctional space is not 

increased commensurate with increased arrests, prosecutions, and sentences to prison, then the ability to review 

each offender’s response to the correctional sanction before making a decision to release is lost. 

These and other consequences within the criminal 

justice system affect the ability of elected legislators and 

chief executives to change criminal justice outcomes 

through sentencing laws. Legislative removal of discretion 

from one may increase the discretionary power of another. 

Almost two decades of unrelenting growth may mean the 

intent of enhanced sentencing laws can be realized in 

many systems only through budget support of administrative improvements, manageable caseloads, and/or expanded 

capacity. Finally, pressures for new sentencing legislation 

may need to be tempered by an increased appreciation for 

the constitutionally based reasons that persons are diverted 

through arrest screening, plea bargaining, sentencing, parole 

review, and bill of rights protections. 

The issues that are involved in legislative sentencing 

reform can be more clearly appreciated within the context 

of these dynamics in the criminal justice system. Concerns 

raised by ongoing efforts of general government elected 

officials to change the sentencing outcomes will in turn 

shed further light on the interaction of legislative change 

with the constraints of the criminal justice system and the 

potential for system impacts. 

when it became the first state in recent history to abolish’ 

indeterminate sentencing and parole. Although establishing determinate sentencing was a legislative initiative, the 

legislature left the judges with a wide range of penalties 

from which to choose (e.g., 0-5 years or 0-20 years). Recently, Virginia took another hybrid approach that could 

still be classified as a judicial model. Rather than allowing 

empirical guidelines developed by the judiciary to be volSENTENCING REFORM 

Sentencing Reform Commissions 

There are as many reasons for a state to establish a 

sentencing reform commission as there are commissions. 

While hardliners push for longer sentences, social acti48 U.S. Advisory Commission on Intergovernmental Relations 
corporated sentencing alternatives and mandated correctional impact statements for sentencing proposals. 

The approach taken in Oregon, at least in its inception, was an attempt to balance all elements: judicial, legislative, and commission. 

The 1987 Oregon legislature found that the decision to imprison offenders, and decisions as to the 

period of imprisonment, must be made on a sys- tematic basis that maintains institutional population within a level that the legislature and the citizens of the state are prepared to provide. The 

legislature also found that we must allow for the 

judicial discretion necessary for appropriate sentencing in individual cases.w 

Inadequate prison space prevented Florida’s guidelines, 

enacted in 1983, from taking full effect. In 1985, guideline 

proposals were rejected by the legislatures in New York and 

South Carolina. Louisiana, New Mexico, and fhe District of 

Columbia have proposals under development.loO 

Perhaps the most significant influence on the future 

course of state sentencing reform may be federal reform 

efforts. Congressional legislation providing for federal 

sentencing guidelines was first passed by the Senate in 

1978. The federal sentencing commission ultimately was 

authorized by Congress as a provision of the Comprehen- sive Crime Control Act of 1984. Congress acceded to the 

commission’s recommendations in 1987, and all federal 

judges have been sentencing under these guidelines since 

November 1989. 

In the discussion that follows of the issues involved in 

comprehensive sentencing reform, the federal approach is 

amply represented for two reasons. First, many of these 

concerns will arise in any comprehensive effort; there is no 

difference in state or federal dynamics in the points discussed. State officials, therefore, can learn from the federal experience as to whether they want to initiate a sentencing commission approach and how it should be 

structured. Second, the U.S. Justice Department, believing that replication of federal sentencing guidelines by the 

states “will directly benefit states,” transferred $300,000 

from state and local anti-drug grant funds to the US. Sentencing Commission during 1990 for this purpose.’O’ State 

criminal justice officials and general government officials 

need to be aware of what their state may be encouraged to 

undertake under this federal initiative. 

Who Will Be in Charge of Reform? 

By late 1988,140 federal district judges had ruled that 

the U.S. Sentencing Guidelines were unconstitutional 

and 104 had found them to be constitutional. Ultimately, 

in January 1989, the U.S. Supreme Court upheld the constitutionality of the guidelines in an 8-to-1 opinion.’O* 

Guideline development by a commission appointed by the 

executive that included members of the judiciary, and ratification by the legislative branch were held not to be in violation of the separation of powers. 

Nevertheless, a new round of challenges to the federal sentencing guidelines-which are indicative of the reaction to state sentencing guidelines, as well-has been 

filed. The new challenges stem from the fact that the sentencing outcome has been put in the prosecutor’s hands 

based on the charges filed. These and the original challenges would appear to be driven as much by judicial reactions to having their power constrained, as by differences 

in constitutional interpretation. At least one U.S. district 

judge quit, citing the stress from handling scores of drug 

cases and the lack of discretion he had in sentencing.lu3 

Sentencing commissions are usually comprised of 

members of more than one branch of government. The 

legislature usually has initiated the commission. Members 

of the judiciary have been asked to participate to provide 

knowledgable guidance on sentencing practices; for example, the Ohio commission is chaired by the state’s chief 

justice. Executive agency representatives often are included to provide the most direct assessment of capacity 

restraints. Some state commissions have had their members appointed by the governor. The U.S. Sentencing 

Commission has seven voting members and two nonvoting 

members appointed by the president and confirmed the 

Senate. It was created as an ongoing, independent judicial 

body in the federal criminal justice system.lo4 

In contrast to Congress, states have avoided a major 

element of a separation-of-powers challenge by having 

the legislature enact the guidelines into law. Congress 

took the stance of simply not objecting to the guidelines becoming effective. In fact, the Senate JudiciaIy Committee 

held only one day of hearings. The principal focus of the 

House Criminal Justice Subcommittee’s action was not on 

the substance of the guidelines but simply on whether there 

should be a nine-month delay to pennit field testing.loS 

The Ohio Governor’s Committee on Prison and Jail 

Crowding sounded the typical, all-encompassing call in its 

1990 recommendations: 

Goals of the Sentencing Commission would include “frugal use of correctional resources,” as 

well as just punishment proportionate to the seriousness of the crime; similar punishment of similar offenses; offer the offender an opportunity to 

improve him or her self; tie each sentencing decision more directly to the crime, offender, and victim; and protection of the public.’06 

However, the Ohio governor’s committee also acknowledged that taking popular politics out of sentencing was an 

important goal. “A sentencing commission could provide 

the General Assembly with a response to public pressure 

for changing ~entences.”’~’ Therefore, as a shield against 

legislators reacting to the possibility of being labeled soft 

on crime if they reduce any sentences, sentencing recommendations would be considered as a total package by the 

legislature, with opportunity for the commission to respond to any legislative changes before the package is enacted. Political input was recognized as an important ingredient, nevertheless, and the committee recommended 

that commission members be selected from among 

elected officials for the most part. Thereby, political sensitivity would be part of the development of whatever was 

brought before the legislature.lo8 

U.S. Advisory Commission on Intergovernmental Relations 49 
This Ohio attempt amply demonstrates one major pitfall of sentencing commissions: the political vulnerability 

of dealing with the reality of sentencing. As briefly outlined in the discussion of parole and good time, prisoners 

typically serve only a small portion of their sentences. Yet, 

almost all prisons and large jails still are overcrowded. If the 

goal of a sentencing commission is truth-in-sentencing, then 

the sentences given will have to be reduced-significantly. 

Sentencing commission recommendations are, therefore, typically developed as a package. This is basic to 

viewing parity across criminal offenses. More importantly, 

it is essential to the legislature adopting change without 

further impact on the need for prisons and jails. The package can be sold as reducing the sentencesfor “less serious” 

offenders so that “serious” offenders are fully punished. 

Unfortunately, the public may accept this in theory until it 

gets applied to the reality that an estimated 95 percent of 

state prison inmates have either been convicted of a violent offense or have a history of prior convictions.lW At 

that point, distinguishing between “serious” and “less serious” becomes politically volatile. Legislators are not going 

to like being asked to reduce the statutory sentence of 5 to 

10 years for a third burglary conviction to a flat 18 months. 

Minnesota and Oregon have had the most success in 

dgaling with this challenge by tying it clearly to the issue that 

the public cannot afford to build more prisons. Other state 

legislatures and the Congress have chosen instead to include 

building more prison space, at the onset, as part of the package to achieve sure, equitable, and appropriate sentencing. 

Projecting the Effects of Sentencing Changes 

But, how does the legislature know what effect the 

sentencing guidelines will have on prison and jail populations? The difficulties of criminal justice forecasting will 

be discussed at length in Chapter 8. It should suffice for the 

moment to equate its difficulty with economic forecasting, 

with the added observation that “Economists state their 

GNP growth projections to the nearest tenth of a percentage 

point to prove that they have a sense of humor.” 

No matter what the legislative intent, projections of 

the effect of sentencing changes are not possible with the 

same degree of certainty that legislators are accustomed 

to in other fields, such as education or even Medicaid. All 

5-year-olds will enter kindergarten, but not all 18-yearolds will enter prison. 

Not only is it difficult to make prison and jail projections, but any projection has added potential for being disregarded in a politicized debate because, unlike most social legislation, changes in the criminal justice code apply 

only to new offenders. If aid-to-dependent children eligibility is extended through high school graduation rather 

than terminated at age 18, the additional cost will occur in 

the first year. Adding two years to a 5-year term will only 

be felt after five years. The expense will be the problem of 

another legislature. 

To the degree that it is openly recognized that any objective projections are based on multiple subjective assumptions, legislative action may be duly tempered. Unfortunately, tacit political agreement to accept optimistic 

projections, rather than to consider worst-case scenarios, 

is not uncommon. If future costs are not debated and/or 

multifarious data not even developed, the short-term 

political gain from passing truth-in-sentencing reforms 

will result in longer net sentences. 

Thus, how the impact of sentencing changes is deter 

mined and conveyed can make a major difference in legis 

lative action. Therefore, while this discussion started witt. 

the controversy over whether the judicial branch, the legislative branch, or the executive branch should wield the 

greatest power in sentencing reform, there is reason to 

question whether it is, in fact, the appointed individuals 

who control the data, rather than the legislature, who are 

determining sentencing policy. 

Problems with Sentencing Commissions 

While a commissiop may shield a comprehensive revision from political pressures to increase sentences, a commission also may develop its own agenda, penal philosophy, 

and/or pride in seeing its product adopted. This may be especially true if the executive makes the appointments and has 

adopted truth-in-sentencing as part of a tough-on-crime 

platform. Several state legislatures, alert to this problem, 

have stipulated that the bulk of sentencing commission 

members will serve by virtue of their position (such as chief 

justice, Senate judiciary chair, or state attorney general) or 

will be designees of criminal justice interest groups (such as 

local prosecuting attorneys, defense attorneys, or sheriff.4 

Even if it has the desire, a commission may not have 

association), rather than be appointed by the governor. 

been given the technical resources or the charge necessa 

to fully address impact projections. For example, in 1991, 

the U.S. Sentencing Commission still was answering in. 

quiries as to the effect of the sentencing guidelines on 

prison populations by citing figures speculatively genet. 

ated in 1986. Further, the Congress did not call for a GAO 

evaluation of the impact of the guidelines until four years 

after they were in effect. Finally, even though thecommk 

sion was to have surveycd prison capacity and projected 

whether implementation would result in exceeding such 

capacity, there has been no systematic or ongoing survey.’“ 

Most state sentencing commissions have been given 

the role of monitoring the effects of the policy once it ha 

been enacted. Such outside oversight can be very impor, 

tant for the federal prison system or any state system in 

presenting its budgetary needs to the executive and hen4 

to the legislature. Prison (or jail) administrators may nd 

be taken seriously, at least by some general governmed 

officials, without direct validation from the commissio# 

staff who, in the process of adopting the sentencingguide) 

lines, will have assumed the stature of experts. 

~ 

As noted, this credibility may or may not be 

placed, depending on how the commission is selected 

staffed. The Federal Courts Study Committee surfa 

this concern by calling for continued analysis 

not confined to the Commission or to a few 

groups or government agencies. Rather, bar association, prosecution and defense groups, public 

policy organizations, public and private research 

institutes, foundations and other funding sources 

and, of course, individual scholars, should all join 

50 U.S. Advisory Commission on Intergovernmental Relations 
in this research effort that, heretofore, has been 

largely the sole province of the Sentencing Commission.”’ 

Substantive Complexity 

Simple justice was a goal of Camelot. In modem times, 

as populations grew and became increasingly mobile, judges 

came to know less and less about the offender, the crime, or 

the victim. With population growth, individual judges also 

came to represent an ever smaller part of the totality of decisions that define justice. Sentencing guidelines are a mechanical means to try to cope with this evolution. They are an 

attempt to comprehensively define justice and the facts that 

should be known before sentencing. 

Elected officials are used to having big numbers 

thrown at them. But even they would be daunted by being 

asked to rank 500-or is it a thousand? or two? or 

three?-separate criminal offenses, multiplied by six-or 

should it be 12?-levels of past criminal history, multiplied by how many degrees of victim impact, multiplied by 

what relevant facts about the offender and the severity of 

his or her actions. Such a task is rightly delegated to staff. 

However, tough policy decisions, such as equating a barroom brawl with child abuse, eventually come back to the 

elected representatives. 

The task is complicated further by the disarray in some 

Qiminal codes. This is particulariy true of the federal code, 

as described by the Federal Courts Study Committee: 

There are more than 3,000 separate federal statutory offenses. Important offenses such as murder 

and kidnapping are co-mingled (sic) with trivial 

offenses like reproducing the image of “Smokey 

the Bear” without permission and taking false 

teeth into a state without the approval of a local 

dentist. The current statutes use 78 different 

terms to describe the mens rea that must accompany the various offenses. Many offenses overlap. For example, 446 statutory offenses deal with 

just four offense areas-theft, fraud, forgery, and 

counterfeiting. The resulting confusion and inefficiency seriously impede the operation of an effective criminal justice system.”* 

The Federal Courts Study Committee commented 

that “a number of criticisms of the U.S. Sentencing Guidelines mayactuallybe criticisms of the arbitrary structure of 

federal criminal laws, a structure made transparent by the 

guidelines. There are thousands of separate federal criminal prohibitions, enacted at different times, reflecting different penal attitudes and full of gaps and overlaps.”113 

Most states are a step ahead of the Congress. Beginning more than 25 years ago, states began revising their 

criminal codes in line with the Model Penal Code, which 

was published by the American Law Institute in 1962. By 

1985, three-fourths of the states had done so.ll‘ The Federal Courts Study Committee urged the Congress to “resume the task, formidable as it is, of recodifying federal 

criminal law in order to bring about a simplified, rationalized, and coherent system of prohibition^.""^ 

I 

I 

I 

However, even though states that have recodified 

their criminal law based on the Model Penal Code have a 

more structured base, this structure does not translate 

well into a uniform sentencing matrix. The Model Penal 

Code classifies offenses based on the worst case, not the 

usual case. It is based on the assumption that the legislature sets the maximum for the worst case but-importantly-with enough of a range below it to allow the court to 

set sentences appropriate for the usual case.l16 

This focus on the worst case may translate satisfactorily into sentencing guidelines in the case of aggravated 

sexual assault because the type of behavior in such crimes 

is relatively narrow. The usual case and the worst case are 

within the same range. However, possession of even a 

large quantity of drugs may result from a wide range of involvements in the drug trade. “Intent” would be very important, as would individual factors, such as age, income, and 

family status, to distinguish between a mainline lawyer engaged in a lucrative drug trade “on the side” and a poor Mexican father enticed to take a drug run over the border. 

As noted, criminal assault can include a barroom 

brawl or child abuse, and each can encompass a wide range 

of severity. It is true that an offense category can be subdivided repeatedly into other categories to encompass 

meaningful distinctions. However, the Federal Sentencing Guidelines, based on only 43 offense categories and six 

levels of criminal history, results in a 258-cell matrix. Even 

at this simple level, one assistant U.S. attorney observed, 

“The guidelines are not fun to deal with. Most people who 

become attorneys didn’t do so to perform calculation^."^^^ 

Most state commissions have made distinctions, such 

as monetary amounts, frequency of behavior or harm, age 

of victim, and extent of injury, in setting sentencing guideline ranges and reasons for departure.”* The federal 

guidelines also make allowances for each of the 258 cells to 

be adjusted upward for factors such as degree of bodily injury, weapon use, or the vulnerability of the victim. Downward 

adjustments are indicated primarily for a guilty plea (“defendant’s acceptance of responsibility for the offense”). 

Critics note that the United States Sentencing Commission Guidelines manual states, “Congress sought uniformity in sentencing by narrowing the wide disparity on 

sentences imposed by different federal courts for similar 

criminal conduct by similar offenders.” However, these 

critics point out that “[Gluideline sentencing actually 

does a disservice to these notions of uniformity, as key factors about the ‘offender’ are eliminated.”llg The guidelines do not indicate that downward adjustments also may 

be made for the offender’s age, employment history, or family status and whether the defendant was an instigator and 

leader or a follower. The Fcderal Courts Study Committee 

has urged that the Sentencing Reform Act be amended to per- mit consideration of an offender’s age and personal history. 

However, some civil rights advocates do not support 

mitigating sentences by trying to individualize justice. 

They prefer to equalize justice through the “just desserts” 

approach, which seeks to punish all convicted offenders in 

direct relation to the seriousness of the offense or harm 

done, because guidelines that specify sentencing reductions for offenders who are employed and/or married will 

U.S. Advisory Commission on Intergovernmental Relations 51 
let white middle-class offenders off easy compared to inner-city blacks.lW Interestingly, Congress’ charge to the 

commission, to ensure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders, serves 

both hardliners and those who believe that being poor 

should not be a reason to lock someone up. 

Who Will Ultimately Decide 

Actual Time Served? 

A simple law of physics, “For every action there is an 

equal and opposite reaction,” may be at work in trying to 

set uniform sentencing standards. The more the sentenc- ing options are limited, the more the description of individual circumstances may be massaged to meet the guide- lines. This will mask the reality that human behavior is not 

easily pigeonholed, and the legislative goal of uniformity 

may be served more in appearance than in fact. 

Sentencing commissions attempt to spell out “how 

much each of the relevant factors is worth in a simple cal- culation whereby one arrives at ‘the’ appropriate sen- tence.” Should the amount taken in a robbery be weighted 

the same as that taken in an embezzlement or larceny? 

What should be the penalty enhancement for “brandishing” a weapon as opposed to simply “possessing” it? Should 

the weight given to threatening the victim be able to be canceled out by pleading guilty?12’ Each distinction made by a 

sentencing commisSion creates additional incentive for the 

defense or the prosecution to argue that the facts of the case 

fall on one side or the other of a cut-off. 

By statute, judges can depart from the federal guide- lines for “aggravating or mitigating circumstance . . . not 

adequately taken into consideration by the Sentencing 

Commission.”’22 Of the U.S. district court judges surveyed, 72 percent felt that the guidelines did not offer sufficient flexibility to permit them to give an appropriate 

sentence in each case. Nevertheless, the U.S. Sentencing 

Commission found that, in 1989, judges did administer 

sentences within the guidelines in 82 percent of the cases 

before them. The courts departed downward in 5.8 percent of the cases because the defendant rendered substantial assistance in the investigation or prosecution of others. In 8.7 percent of the cases, courts adjusted downward 

for such reasons as the defendant’s age, family ties, and 

physical condition. In 3.5 percent of the cases, courts departed upward and sentenced above the guideline range. 

Reasons given included the defendant’s criminal history 

and the amount of drugs involved.123 

Such judicial departures can be appealed by the 

prosecution or the defense. Even without such formal appeals, defense/prosecution bargaining has additional fodder under sentencing guidelines: Plea bargaining and 

charge bargaining have been joined by fact bargaining. 

In gathering the “facts” of a case, the Federal Courts 

Study Committee observed that the role of the probation 

officer who is writing the pre-sentence report has been 

changed significantly. “The probation officer, in develop- ing recommendations for the judge about proposed findings, is thus thrust into the middle of a highly contentious 

situation. . . . They may be required to make significant decisions regarding enhancement, credits, and perhaps reasons for departure^."'^^ “Challenges to the officers’ factual findings and the evidentiary hearings held to resolva 

them reportedly have prompted some judges to ad* 

probation officers to secure counsel.”’= , 

varied greatly according to the circumstances of the in4 

vidual court. In theory, the report is to provide the sen 

tencing judge with a view of the facts that is independen 

presented by the defense. At a minimum, the report is th 

judge’s source of information about prior criminal activi + of either the case presented by the prosecutor or the 

that could not be brought forth in assessing guilt. The pr 

bation officer serves as a fact-finding extension of th 1 

judge. In 13 states and the federal system, probation offi 

cers are employees of the court. 

In reality, the heavier the court caseload, the lowe 

the importance given to pre-sentence reports. They taki 

time to prepare. The judge may prefer to move direct11 

into sentencing if the defense and prosecutor present a 

plea-bargain agreement. If the probation officers’ caseloads have grown with court overload, the reports may sel. 

dom provide any information not already before the judge, 

Although all but five states require pre-sentence repod 

by state law, nevertheless, some judges have stopped ask 

bargained: “So, who’s going to sue?” 

This same reality may prevail under sentencing guide 

lines. As long as defense, prosecutor, and judge are 

overloaded, no one may challenge whether the sentencin 

guidelines were administered properly. However, f 

balances, there is concern that sentencing guidelines ma+ 

produce an undesirable shift in who ultimately will decid] 

the punishment. If the judge is constrained in sentencin) 

to a narrow range of 5 to 10 percent difference betweq 

the minimum and maximum sentence, how much will tha 

increase the power of the prosecutor in deciding thd 

charge? If the criminal history or the value of the stolef 

property can move the punishment to a different level 

who will control this finding of facts? 

The impending dilemma was described in a paper by’ 

senior U.S. probation officer: 

Some probation officers expressed the feeling 

that defense attorneys, prosecutors, and judges 

would “tear them apart” in court over minor mistakes made in PSI report preparations or other 

challenges of their authenticity and accuracy. 

One very capable defense attorney confronted 

me one afternoon in mid-1987 on an elevator in 

the federal courthouse. “How do you like the new 

guidelines?” he asked. I replied that I wasn’l 

“thrilled” by them and expressed the concern thal 

the U.S. Probation Officer role would become 

considerably more visible than at present. He re- marked, “Don’t worry about that, because over 

the years, defense lawyers, judges, and prosecu- tors have been unable to determine what justice 

is. And so now it’s your turn. You can’t do any 

worse than we have done.”126 

The traditional role of the pre-sentence report h 

ing for them for the 90 percent of the cases that are pl ei 

! 

court systems still able to exert the traditional checks an f 

52 U.S. Advisory Commlssion on Intergovernmental Relations 
At least initially, U.S. probation officers, who are “relatively low status members of the courtroom work group,” 

have nonetheless been regarded as experts in the federal 

guidelines because they have received the most training. 

As prosecutors, defense lawyers, and judges become more 

familiar with the guidelines, their traditional bargaining 

positions may be resumed. 

In addition, there is concern that sentencing guidelines may further overload the courts. “Because the results of any particular finding allowed under the guidelies significantly impact the sentence imposed, judgesare 

spending an enormous amount of time making findings at 

sentencing hearings before a sentence can be imposed.”127 

Three-fourths of the 365 US. district court judges surveyed by the Federal Courts Study Committee said sentencing hearings have become more time consuming. Fifty-six judges said that the time required had increased 25 

to 100 percent. However, over one-third agreed that, 

“Given the goals of eliminating disparity between defendants and making sentencing more rational, the additional 

procedures associated with the Sentencing Guidelines are 

not more burdensome than needed.”128 

Another source of overload, predicted by critics, is an 

increase in the number of defendants who will choose to 

go to trial because mandatory minimum sentences give defendants no incentive to plea bargain. “We’re trying more 

cases than we used to,” said Chief Federal Judge Francis J. 

Boyle in Rhode Island. “YOU get more defendants who 

want to just take a shot at it and hope the jury makes a mistake.”lg Notwithstanding such isolated reports, a 1989 

survey by the U.S. Sentencing Commission found that the 

rate at which defendants plead guilty has remained constant 

Since nationwide implementation of the guidelines. Just over 

88 percent of all defendants sentenced under the federal 

guidelines in 1989 entered pleas of guilty or nolo contendere. 

’Ihis is approximately the same rate of guilty pleas entered in 

the federal courts before sentencing g~ide1ines.l~~ 

Perhaps this is because, as other critics have warned, 

sentencing guidelines have further strengthened the role 

of the prosecutor in negotiating guilty pleas. The prosecutor is as constrained as the judge under sentencing guidelines in the range of sentence that can be offered to induce 

a guilty plea. However, the prosecutor does have another 

avenue of discretion, while the judge does not, and defendants know this: the prosecutor can change the charge. 

Effectively transferring sentencing discretion 

from judges and parole authorities to prosecutors 

(and at the same time increasing the sentence disparity between guilty-plea and trial defendants) 

would not be progress; to the contrary, it would be a 

perverse and regrettable development . . . the 

guidelines are merely bargaining weapons-armaments that enable prosecutors, not the Sentencing 

Commission, to determine sentences in the overwhelming majority of cases. . . . Typically, the prosecutor can offer a sentence about one-third as severe 

as the sentence that the defendant would have received if convicted of the greater charge at trial.131 

The Federal Courts Study Committee felt it was too 

early to take a position on the federal sentencing guidelines, but they did outline similar concerns. “Despite the 

Attorney General’s instructions to federal prosecutors, 

which state that departures from the guidelines ‘should be 

openly identified rather than hidden between the lines of 

a plea agreement,’ it is felt that discretion has been passed 

from the judge’s hands to the pro~e~utor’s.’’~~* 

In fact, the commission’s initial assumptions acknowledge that the federal guidelines will not significantly limit 

plea bargaining. 

The Commission has assumed that only a small 

minority of future offenders-the 15 percent 

convicted at trial-will be sentenced as severely 

as the guidelines appear to mandate. . . . [Tlhe 

Commission’s predictions assume that defendants who plead guilty will receive discounts of 30 

or 40 percent from their probable post-trial sentences (the same ‘percentage reduction’ that guilty-plea defendants currently receive).133 

In addition to other concerns about prosecutors manipulating the charge to achieve a guilty plea, it has also 

been noted that “[Tlhe long tradition of record-keeping 

and appellate review make judicial decisions accountable 

in a way that prosecutorial decisions are Iffact bargaining comes to carry greater weight, the lack of written 

records will make it even more difficult for legislative or executive oversight to determine whether the goal of similar 

sentences for similar criminal acts has been achieved, or 

whether it is simply the charges-the labels that expediently 

are given to the criminal acts-that have been changed. 

While this discussion has focused principally on concerns raised about the federal sentencing guidelines, the 

dynamics of the judge, prosecutor, defense, and probation 

officer are the same in state courts. The legislative search 

for sentencing uniformity may have a very significant effect on altering this balance of power. In that shift, sentencing uniformity related to the actual criminal act committed still may remain elusive. 

The Impact on Prisons and Jails 

“A rose by any other name would smell as sweet.”This 

is not so for sentencing commissions and determinate sentences. Legislators must carefully define the goals and parameters to be served by such initiatives, or they are as apt 

to end up with crabgrass as with orchids. 

Of the nine states having the longest experience with 

determinate sentencing, five (California, Illinois, Maine, 

New Mexico, and Washington) had prison population increases during the 1980s that exceeded the average increase for all states. The growth in the other states has 

been artificially restrained by population caps that have 

reduced sentences or advanced parole eligibility despiteor because of-determinate sentences. Florida’s cap came 

as the result of a federal court order, while North Carolina’s cap was enacted by the legislature in 1987. Only Minnesota has not experienced extraordinary growth following the adoption of determinate sentencing. 

U.S. Advisory Commission on Intergovernmental Relations 53 
From the beginning, Minnesota resolved that sentencing guidelines would be constrained by prison capac- ity. It can be argued that this is simply a cap before the fact. 

There are two important differences, however. First, initial legislative agreement on capacity restraints assured 

that the guidelines would control the proportionality of 

the sentencing, not the vagaries of how prisoners are re- leased under a cap (i.e., reducing all sentences by 30 days 

has a different effect than reducing all sentences by 5 per- cent). Second, legislating tough sentencing guidelines 

without the capacity to carry them through does not ad- vance truth-in-sentencing. The following description of 

the 1980s in Florida provides an excellent example of the 

spin-offs when sentencing reform does not adequately 

consider capacity: 

Starting in the early 1980s, lawmakers in 

[Florida] launched one of the most aggressive anticrime and drug crackdowns in the nation, passing tough laws that abolished parole, stiffened 

sentences and mandated prison time for possession of even small amounts of cocaine and other 

illegal substances. “Four years ago, inmates sentenced to Florida prisons served an average of 52 

percent of their sentences. Today, the figure is 33 

percent and dropping fast.’’ As a result of a 1972 

suit, there is “a court-imposed limit on the number of prisoners in state institutions and the appointment of a special federal ‘master’ to ensure 

enforcement.. . .” 

[B]y the time [Governor] Martinez took office in 1987, new inmates from a crack-induced 

explosion in drug offenses were being herded into 

makeshift tent prisons. Facing a new federal 

court ruling that could lead to mass releases all at 

once, [Governor] Martinez called a special ses- sion of the state legislature and was granted authority to grant inmates “administrative gain 

time”-essentially time off-whenever the 

state’s prisons were full. 

When the program began, a state computer 

automatically granted most inmates five days off 

their sentences whenever state correctional officers learned the prisons were at 99 percent of capacity. “Then we went to 10 days, but it wouldn’t 

generate enough bodies out the door,” [Secretary 

of Corrections] Dugger explained in a recent interview. “So finally, we went to 30 days.” By last 

year, the computers were taking one month off 

sentences every two weeks. 

[This occurred despite the fact that a $350 

million, four-year effort more than doubled the 

prison capacity.] While states dump violent criminals back into the communities, county jails are 

swelling with rearrested “releasees.” . . . [Tlhe 

sheriffs’ association has filed a suit against the 

state government to stop the early releases. . . . 

Over the past year, [Governor] Martinez and 

state lawmakers repeatedly have tinkered with 

the program in response to public criticism. The 

list of violent offenders ineligible for gain time 

has been expanded. Instead of automatically 

granting time off to inmates through computers, 

the state parole commission has been asked to review each case individually-a process that some 

state officials concede may be impossible.135 

Relatively recently, Oregon launched a comprehensive determinate sentencing reform. As previously noted, 

the 1987 Oregon legislature found that “the decision to 

imprison offenders, and decisions as to the period of imprisonment, must be made on a systematicbasis that maintains institutional population within a level that the legislature and the citizens of the state are prepared to 

The result has been that, even for crimes 

against persons, Oregon guidelines sentence very few inmates to terms of five years or longer. The penalties for a 

few serious crimes were increased, but penalties for most 

lesser crimes were decreased. 

These reductions were not adequate to constrain prison population growth in part because, when the sentencing reform package was presented, the legislative politics 

led to tougher penalties being added. Therefore, subsequent 

action had to be taken that tied Oregon’s parole guidelines 

to prison capacity. Parole became openly acknowledged I 

an instrument of prison population control. 

Parenthetically, although Oregon has retained parole 

even under determinate sentencing, it is now approached 

on a “presumptive” basis by notifying the inmate shortly 

after admission what the presumed parole date will be. A 

greater burden of proof thus is required to deny parole, 

removing much of the potential for inequitable treatment 

alleged under indeterminate systems. 

Not surprisingly, such sentencing reductions were not 

universally embraced in Oregon. As noted earlier, local 

jail populations were impacted heavily because felony 

guidelines were developed before misdemeanor sentencing guidelines. Prosecutors and judges took the opportunity to convict on a reduced charge so that the offender 

would serve more time in jail on a misdemeanor convic. 

tion than the prison time that could be given under thc 

new felony guidelines. The Oregon Criminal Justia 

Council was directed to develop guidelines for misde. 

meanors by 1991, two years after the deadline for tht 

felony g~ide1ines.l~’ 

Minnesota’s guidelines have been in effect for 101 

years and apparently did not have to face the same judicial 

reaction of felonies being reduced to misdemeanors to circumvent the lowered felony sentencing caps. Nevertheless, 

several key state policymakers have recently proposed thq I development of local sentencing guidelines, similar to the 

state sentencing guidelines. Even for misdemeanor sen4 

to ensure that sentences are handed out equitably, accordin =i tences of less than a year, jail crowding has made it nece 

to the Anoka County community corrections director. 

Local jail populations can also sustain a heavy impact d 

state sentencing guidelines do not adequately provide fd 

sanctions other than imprisonment. Rstimony before thd 

in 1983 singled out this problem with Minnesota’s initial ef I US. Advisory Commission on Intergovernmental Relatio 

54 U.S. Advisory Commission on Intergovernmental Relations 
forts. When short sentences are given instead of communitybased sanctions, they are usually served in a local jail. 

The greatest concern about the effect of guidelineson 

the use of alternative sanctions may stem from the new 

federal guidelines because thc fcdcral guidclincs may become a benchmark to judge the severity of state guidelimes. Congress specified in the Sentencing Reform Act of 

1984 that, “The Commission shall insure that the guidelines reflect the general appropriateness of imposing a 

sentence other than imprisonment in cases in which the 

defendant isa first offender who has not been convicted of 

a crime of violence or an otherwise serious 

Nevertheless, the guidelines that emerged authorized 

fines, home detention, community service, and other community-based sanctions only as a supplement to a period of 

incarceration and not as an alternative to it. Probation 

alone is limited to offenders who fall within the lowest 21 

cells of the 258-cell matrix.139 As of 1990,74 percent of the 

offenders sentenced under the guidelines wcre sent to prison, compared to only 52 percent of offenders in 1986.’‘O If 

any state uses the federal guidelines as a model, the sharp 

reduction in the use of probation in the federal justice system, from 50 percent of cases to 10 percent, would portend a 

heavy impact on localities. 

The Political Climate 

Elected officials are pressured by the public’s fear of 

crime, by competing political philosophies, and by their 

own fear of the 30-second campaign spot. But, because 

most elected officials and citizens know little about criminal justice, they also are under extraordinary pressure by 

actions of the body politic. According to the First Law of 

Political Campaigns: “If there are twelve clowns in a ring, 

you can jump in the middle and start reciting Shakespeare, 

but to the audience, you’ll just be the thirteenth clown.”141 

Officeholder concerns about going against common 

wisdom in criminal justice are true whether it is actions of 

their own predecessors or contemporary initiatives by other elected officials. The dynamics can involve classic confrontation between the executive and the legislature or 

may simply reflect similar perceptions of the public will or 

needed action. 

The reluctance during the last two decades to weaken 

any criminal penalty currently on the books was described 

well by a seasoned state senator: 

Once you have increased the sentences you are 

not going to be able to bring them back down. It 

won’t happen. We are locked in. . . . A new monster has been created by all this toughness. It is 

the monster of prison overcrowding and all the 

r 

I 

cost it is bringing about. . . . We as legislators 

created the problem, but now you cannot go back 

to the public and say we made a mistake. Judges 

and D.A.s are locked into this cycle as are elected 

officials and they can’t go 

The reluctance to rescind past sentencing legislation 

had a major effect on federal sentencing reform. While it 

authorized a Sentencing Commission for a comprehensive 

review, Congress made it clear that guideline ranges 

should not violate the maximum and minimum sentences 

that they had already prescribed for any crime. Consequently, according to the commission’s projections made 

in 1986,85 percent of the impact of the sentencing guidelines are assumed to be from the mandatory minimum 

sentences that the Congress had previously enacted, rather than from the guidelines themselves. Tb the degree that 

this is true, it underscores the problem with a piecemeal 

approach. Eliminating parole without any compensating 

changes in the previously enacted mandatory sentences 

will have the effect of significantly increasing the time 

served. Federal prisoners had been serving an average of 

33 percent of their sentences. Without parole, federal inmates will serve 156 percent longer sentences at a minimum.14’ In fact, although less than half the federal prisoners released in 1990 had been sentenced under the 

guidelines, the average time served for all those released 

already was 29 percent higher than in 1986.’” 

The Federal Courts Study Committee’s report asserted that retention of previously enacted mandatory 

sentences also thwarted an original goal of the 1984 act, 

which was to sentence according to the nature of the offender, as well as the nature of the offense. 

The recent mandatory minimum sentence provisions ignore these offender and offense variables 

and in the process inhibit the efforts of the Sentencing Commission to fashion a comprehensive 

and rational sentencing system. . . . Repeal of 

these mandatory minimum sentences would allow the Sentencing Commission to revise its 

guidelines applicable to the relevant offenses-a 

compelling need in light of the huge projected increase in the federal prison population. . . . [Vlirtually all commentators on our draft proposal on 

this subject, including present and past members 

of the Sentencing Commission, support repeal of 

mandatory minimum ~entences.’~~ 

In addition to the legislator’s reluctance to weaken 

any criminal laws already on the books, the influence of 

the body politic is even more powerful. As amply demonstrated in the examples of recent legislation cited at the 

beginning of this chapter, state legislatures have been active in passing tougher criminal laws. This prevailing trend 

has been multiplied further by the actions of other states 

and the Congress. 

There are numerous national clearinghouse columns 

and news articles about other state initiatives, which are 

picked up by elected officials in shaping their obligatory 

“crime package.” This borrowing from other states may be 

for political reasons, or it may be necessary to counter the 

fact that criminal activity has become increasingly mobile. 

If a state’s laws and their enforcement are weak relative to 

other states, organized crime involved in activities such as 

drugs, vehicle theft, or fraud may move to take advantage 

of the weakness. 

Federal action has had even greater influence on state 

actions. First, it receives more attention in the popular 

media and is therefore more apt to be echoed by the local 

official’s constituency. In an area where there are few if 

U.S. Advisory Commission on Intergovernmental Relations 55 
any standards of reasonable policy, local elected officials 

are more apt to be measured by federal action. Second, if a 

state’s laws are deemed to be too weak, criminal cases may 

be taken to federal court. Such court shopping has significantly increased. 

Traditionally and constitutionally, the federal government played a very minor role in criminal justice. As 

noted, out of fear of a strong central government with 

broad police authority, the founding fathers reserved general police powers to the states. However, as federal domestic activity increased generally, the Congress criminalized more actions under federal law. Thirty-seven federal 

agencies now have law enforcement authority. 

Second, Prohibition initiated a significant growth in 

federal involvement in general law enforcement. Once 

the precedent was set and the federal capability established, expanded federal law enforcement did not disappear with Prohibition’s repeal. Using the interstate commerce clause as the constitutional authority, the Travel 

Act, the Hobbs Act, wire and mail fraud, and the RICO 

statutes added significantly to the federal government’s 

authority to prosecute crime. “[Tlhere is virtually no 

crime, including convenience store stickups or juvenile 

purse-snatchings which, because of their respective effects on interstate commerce, do not have some federal 

criminal statute covering them.”146 

Today, even though less than 6 percent of felons have 

been convicted of a federal offense, fighting crime is as apt 

to be part of a congressman’s or president’s agenda as it is 

a state legislator’s or a mayor’s. In a 1989 letter, the U.S. 

assistant attorney general for the criminal division 

applauded this federal influence on the body politic: 

“[Tlhe state legislatures are following the federal government’s lead in enacting stiffer laws. To this extent, the federal government has played an entirely appropriate role in 

providing an example for legislation and enforcement to 

the states.”14’ However, significant concerns have been 

raised about the impact of such federal legislation as 

RICO statutes on the balance of power in the federal system and the rights of individuals.’@ 

Many states have enacted legislation parallel to those 

federal laws that strengthen criminal prosecution. As of 

1986,23 states had enacted RICO laws very similar to the 

federal statutes, which were first enacted in 1970 and most 

recently amended in 1986. Unlike other statutes that address individual criminal acts, the RICO statute was specifically designed to target the overall and continuing operations of organized crime organizations. Racketeering 

activities are defined to include any act or threat involving 

murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in narcotic or dangerous drugs, fraud, and 

other crimes. These laws cover wiretap procedures, immunity provisions, multijurisdictional investigations, and 

forfeiture of property used in or purchased by illegal activity. 

Because these provisions are technical and not well understood by the public, enactment by states often has been 

spearheaded by officials within the criminal justice field. 

The pressure to increase state criminal penalties to 

match federal penalties, at times, has been even more direct. Where states have not enacted sentences that are as 

tough as federal provisions, local prosecutors-often a 

the urging of law enforcement officers-may refer thc 

charge to a U.S. attorney. 

[A] first offender caught carrying 50 grams of 

crack now faces 10 years in prison without parole 

in federal court-at least seven years more than 

he might serve under state law in Florida, Texas, 

New York, California or the District. . . . In some 

places, especially the District, prosecutors and 

drug task forces are steering cases out of local 

courts into federal courts to take advantage of the 

tougher federal penalties, say judges and prosecutors. Traditionally, federal drug cases were complex 

prosecutions of large narcotics rings. Now, judges 

say, they are processing scores of small-time offenders, all of whom face heavy prison 

Since 1980, the number of drug cases filed in federa 

district courts has increased 229 percent, whereas the tota 

number of criminal cases filed is up only 56 percent. Drul 

cases average more than two defendants each-and man! 

have ten or more-and drug trials now represent mon 

than 44 percent of all criminal trials, up from 26 percent ir I 

1980.150 In FY 1990, only civil filings did not increase, while 

criminal case filings increase 6percent, twice that for 1989 

The U.S. assistant attorney general maintained, in a 

November 27, 1989, letter to the Federal Courts Stu4 

Committee, that the increase in the caseload of mino] 

drug offenses was due to increased drug enforcement or 

lands and facilities where the federal government has a 

clusive jurisdiction, such as Indian reservations, the hig 

seas, and the Pentagon; airport and seaport seizures; an 

border smuggling cases in states such as Florida, Tern 

and California. In addition to such specific increases, th 

“relationships between the investigators, prosecutors an 

witnesses require a coherent prosecution strategy tha 

may counsel invoking federal jurisdiction on a dominan 

number of the cases being investigated.” 

The Federal Courts Study Committee noted that rm 

nor drug cases also find their way into federal court be 

cause the Congress has provided funds for federal prose 

cution whereas state prosecutor’s offices are not as we4 

staffed and able to take on the flood of drug 

However, in high-crime areas, federal prosecutorsap 

pear to be no more able to handle the increased caseloai 

than local prosecutors. For example, 15years ago, the U.S 

attorney’s office in Los Angeles would file crimina 

charges against suspects who had used the mail to defraud 

victims of $50,000 or more. Today, they usually will not ao 

cept the case unless the loss to the victim exceed 

$250,000. Federal law allows the FBI to step in when th 

value of stolen goods from interstate shipments exceed 

$5,000, but the U.S. attorney usually will not prosecute th 

case unless the value exceeds $25,000. The U.S. attorne 

usually will not accept a case involving interstate car thel 

or copyright violations unless organized crime is involve 

or the suspects are operating in at least three states.ln 

The following recommendation was central to th 

Federal Courts Study Committee’s findings: 

, 

56 U.S. Advisory Commission on Intergovernmental Relations 
Where the offense arises out of trafficking on a 

local basis rather than out of the activities of large 

multistate or even multinational rings, the proper 

jurisdiction to prosecute and try the offense is the 

state, not the federal government. Unless this di- vision of responsibilities is respected, the federal 

courts will be swamped as they almost were during Prohibition. , . . We recommend that the Department of Justice formulate policies of demarcation of federal from state responsibilities in the 

drug area that will conform to the principles of 

federalism. And to assist the states in shouldering 

the burdens entailed by our proposal, we urge 

Congress to appropriate to the states some of the 

funds that would otherwise have to be spent to expand the federal role in drug enforcement. . . . Both the principles of federalism and the longterm health of the federal judicial system require 

returning the federal courts to their proper, lim- ited role in dealing with crime.lS3 

However, the views expressed in dissent by the U.S. Jus- tice Department representative is equally significant: 

The role of the federal courts is crucial to drug 

law enforcement, for without their authority fed- eral law enforcement loses its nationwide subpoena power, its electronic surveillance authority, its contempt and immunity powers, and its 

forfeiture authority to name a few. . . . [Ulntil the 

vast majority of the states enact new and more ef- fective laws to combat drug trafficking (e.g., forfei- ture provisions, pretrial detention, harsher sentences) and create adequate prison capacity to 

house those convicted, the federal government will 

have a responsibility to step into the breach.lS4 

Which view will prevail? The second view represents 

the reality of politics. As long as politicians remain convinced 

that the public believes tougher sentences are the answer to 

their fear of crime, constitutional issues regarding proper 

venue under our republican structure will carry little weight. 

This last observation refers to another effect of the 

body politic: competing perceptions of being responsive 

representatives of the public’s interests. In an example of 

legislative/executive dynamics, the House Judiciary Committee was willing to consider delaying full implementation of the federal sentencing guidelines to allow for a trial 

period, as urged by groups such as the American Bar Association and the Judicial Conference. However, the administration, in a letter from Attorney General Edwin Meese, 

opposed delay as “inconsistent with effective law enforcement,” and the subcommittee’s recommendation for field 

testing was defeated on the floor of the House. 

Finally, the philosophic climate not only affects the 

specific laws that are passed, it also influences decisions 

within the criminal justice system. If more drug dealers are 

serving prison sentences, is it because the guidelines call 

for longer sentences and prosecutors find it more attractive to prosecute drug dealers, or is it because a new attorney general, who is reacting to the same perception of 

public priorities, calls for more drug dealer prosecutions 

and devotes more resources to proving the full extent of 

their crimes in sentencing hearings? 

Concern about sentencing reform is widespread. As 

one critic observed: 

Someday, even if observers look back upon discretionary pre-guidelines sentencing with astonishment, they may view the first federal sentencing guidelines as a symbol of some disturbing 

trends in American penology-a mark of an increasing dehumanization of offenders; of more 

incessant political appeals to our fear of crime; of 

a more impatient search for simple, mechanistic 

solutions to difficult human problems; and of a 

deepening failure of leadership in an ever less republican system of government.1ss 

This frustration is matched-at least-by advocates of reform. More than 15 years ago, another author reflected: 

[Alctual prison stays are far less than the sen- tences imposed in virtually all states-perhaps a 

necessary accommodation, in light of the exces- sive length of American sentences, but one that 

has fostered disparity and unrest, and offended 

our sense of equal justice.lS6 

Since this observation was made, the basis for the concern 

expressed has gotten worse. 

SUMMARY 

Equitable sentencing of individuals, which also re- flects public values and constitutes an effective response 

to criminal behavior, is extremely complex. Reform efforts 

in many states and in the federal criminal justice system 

have been spurred, at least in part, by the desire to manage 

this complexity. Those general government elected offi- cials who have supported a sentencing commission and/or 

sentencing guidelines have felt that systematization is essential if their attempts to set policy are to be effective. 

The history of sentencing reform, thus far, seems to 

indicate that the innate complexity of sentencing may be 

beyond the degree of control envisioned by many of these 

legislative and executivepolicymakers. The number of different types of crime within broad categories, the constraints of using definitions that do not create legal loopholes, and the wide variety of circumstances surrounding 

individual criminal acts and range of criminal histories, all 

have necessitated that development of sentencing reform 

plans be delegated to nonelected experts. 

Legislators and chief executives find that they have 

not gained control of sentencing by enacting complex 

.mandatory guidelines. Each category within a sentencing 

matrix puts increased importance on the charges brought 

before the judge rather than on a constrained sentencing 

decision, and the public process of judicial sentencing may 

U.S. Advisory Commission on Intergovernmental Relations 57 
be replaced by informal bargaining between the prosecutor and defense. In other instances, the response has been 

to try traditionally state offenses as federal offenses or as 

local misdemeanors. Finally, in states that adopted sentencing guidelines without tying them to prison capacity, 

general government elected officials have experienced a 

loss of control over escalating prison budgets and/or over 

release discretion, often negating the intent of the sentencing legislation. 

Nevertheless, general government elected officials 

do have the responsibility to define criminal acts and set 

sentencing policy, and many feel that as elected representatives they must respond to the public’s fear of crime and 

its belief that the courts are not dealing with crime effectively. If comprehensive sentencing reform or mandatory 

penalties are not found to produce greater equity or deter 

crime, what other means can general government elected 

officials use to shape an effective criminal justice system? 

There is no simple answer to this question. 

The remainder of this report will discuss how general 

government officials can exercise their oversight responsibilities, use their power of the budget, leverage their access to the public, and draw on their positions of authority 

to encourage criminal justice and other elected officials to 

reason with them to develop the most productive means to 

sanction and deter criminal activity. By examining what is 

required to support sentencing decisions, general government elected officials will be better equipped to judge the 

efficacy of the sentencing laws they advocate or enact. 

NOTES 

Ryan v. Ryan, 277, S. 2d., 266, Florida (1973). 

2State v. Nears, 654, P2d 29, Arizona (1982). 

Stover Clark, “Drunk Drivers Crowd Pennsylvania County 

Jails,” County News, September 12, 1988. 

Hennepin County Board of Commissioners, Hennepin 

County Sheriff, Hennepin County Attorney, Fourth Judicial 

District Court, and Minneapolis Police Department, Hennepin’s Criminal Justice System and the New Public Safety Facility 

(Minneapolis, January 1990). 

’Alvin Cohn, “The Failure of Correctional Management,” 

Crime and Delinquency 19 (July 1973): 326. 

James G. Fox, “Critical Perspectives on Selective Incapacita- tion and the Prediction of Dangerousness,” in Dean C. Champion, ed., The US. Sentencing Guidelines: Implications for 

Criminal Justice (New York Praeger Publishers, 1990), p. 137. 

Edwin Zedlewsski, Making Confinement Decisions (Washing- ton, DC U.S. Department of Justice, National Institute of Jus- tice, July 1987). 

John J. DiIulio, Jr., “Punishing Smarter: Penal Reforms for the 

199Os,” The Bmkings Review 7 (Summer 1989): 6. 

Hennepin County Board of Commissioners, et al., Hemepin’s 

Criminal Justice System and the New Public Facility, p. 43. 

lo Confidential interview, 1990. 

l1 National Advisory Commission on Criminal Justice Standards 

and Goals, A National Strategy to Reduce Critiie (Washington, 

DC, 1971), pp. 31-32. 

‘2Russell Committee, Bar Association of Baltimore City, The 

Dmg Crisis and Underfirnding of the Justice System in Baltimom 

City (Baltimore, December 1990), pp. 36-37. 

l3 American Bar Association, Report of tlie American BarAssociation Task Force on the Crisis in the Criminal Justice System 

(Chicago, 1990), p. 12. 

14Martha A. Fabricius and Steven D. Gold, State Aid to Local 

Governments for Corrections Programs (Denver: National Con- ference of State Legislatures, 1989). 

‘5C~mptr~ller General of the United States, State and County 

Probation: Systems in Crisis (Washington, DC: U.S. Depart- ment of Justice, Law Enforcement Assistance Administration, 

1976), p. 3. 

“Confidential interviews, 1990. 

l7 Michael J. Quinlan, “View from the Top,” Federal PrisonrJourl8 Cohn, “The Failure of Correctional Management,” p. 327. 

19Nancy C. Maron, Linda K. Ridge, John Martin, and Carol 

Friesen, Legislative-Judicial Relations: Seeking a New Partner- ship (Williamsburg, Virginia: National Center for State Courts, 

1989), p, vi. 

2o Daniel L. Skoler, Organizing the Non-System (Lexington, Massachusetts: D.C. Heath, Lexington Books, 1977). 

21 James Shriver, “Frustrated by Criminal Justice System, Public 

Demands Harsher Penalties,” The Gallip Report, June 1989, p. 

27. 

22 David Freed, “Crime Overloads LA. Justice System,”LosAngeles Times, December 16, 1990. 

23 American Bar Association, Report on the Crisis in the Criminal 

Justice Systent, p. 1. 

24 Ibid. 

25 David Freed, “Plea Bargaining Becomes the Currency of the 

26 Russell Committee, The Drug Crisis and Underfunding of the 

27American Bar Association, Report on the Crisis in the Criminal 

28 Ibid., p. 8. 

29 Federal Courts Study Committee, Report (Philadelphia, 19901 

p. 6. 

30 Hennepin County Board of Commissioners et al., Hennepin’s 

Criminal Justice System and tlie New Public Safety Facility, p. 5. 

31 Ira Riener, Los Angeles district attorney, in Freed, “Plea Bargaining Becomes the Currency of the Courts.” 

32 Alvin Cohn, National Overview of Innovative Opiions to Relieve 

Jail Overcmwding(Washington, DC: Administration of Justice 

Services, January 12, 1989). 

Lynn Goodstein and John H. Kramer, “Case Processing and 

the Federal Sentencing Guidelines,” in Champion, ed., The 

US. Sentencing Guidelines, p. 118. 

34 David Freed, “Volume of Crime Allows Many Suspects to Gc 

Free,” Los Angeles finies, December 19, 1990. 

35 Federal Courts Study Committee, Report, p. 51. 

36 Welcoming remarks of Chief Justice William H. Rehnquist 

Conference on State-Federal Judicial Relationships, Orlando, 

Florida, April 8, 1992. 

37 U.S. Advisory Commission on Intergovernmental Relations, 

State Constitutions in the Federal System: Selected Issues and 

Opportunities (Washington, DC, 1989). 

j8Michigan v. Long, 463, U.S. 1032 (1983). 

rial 1 (Summer 1990): 93. 

Courts,” Los Angeles Times, December 20, 1990. 

Justice System in Baltimore City, p. 4. 

Justice System, p. 2. 

58 U.S. Advisory Commission on Intergovernmental Relations 
39 114 N.J. 329,554 A.2d 1315. 

40 116 N.J. 269,561 A.2d 570. 

41 US. Department of Justice, Bureau of Justice Statistics (BJS), 

Report to the Nation on Crinie and Justice (Washington, DC, 

1988), p. 72. 

42“Prosecutors in State Courts, 1990,” BJS Bulletin, March 1992. 

43 Correctional Services Group, Forecast of Detention Capacity 

Needs forHennepin County (Minneapolis, Dccember 19,1989), 

p. 69-9. 

44 Ibid., p.18. 

45 Freed, “Volume of Crime Allows Many Suspects to Go Free.” 

&National Center for State Courts, Night Court: Is It a Solution 

to Jail Overcrowding? Hetinepin Couti& Minnesota, Final Re- port(Williamsburg, Virginia: National Center for State Courts, 

January 1990), p. 18. 

47 Freed, “Volume of Crime Allows Many Suspects to Go Free.” 

48 bid. 

49 Ibid. 

Skoler, Organizing the Non-System, p.175. 

ber 1988. 

51 “Criminal Defense for the Poor, 1986,” BJS Bulletin, Septem52 Ibid. 

53 Report to the Nation on Ginre and Justice, p, 75. 

54 Lisha Gayle, “City Sues to Get Help on Workhouse Crowding,” St. Louis Post-Dispatch, March 31, 1988. 

55 Russell Committee, The Dnig Crisis atid Underfittiding of the 

Justice System in Baltimore City, p. 25. 

56Report to the Nation on Crime and Justice, p. 85. 

57 “Felony Defendants in Large Urban Counties, 1988,” BJS Bul- letin, April 1990. 

58 Hennepin County Board of Commissioners et al., Hentiepiti’s 

Criminal Justice System and the New Public Safety Facility, p. 15. 

59 “Jail Inmates, 1989,” BJS Bulletin, June 1990. 

@‘Federal Courts Study Committee, Report, p. 25. 

61 Jonathan Walters, “Cops and Courts are Turning to High-Tech 

Tools,” Governing 3 (October 1990): 23-26. 

62 Hennepin County Board of Commissioners et al., Hemepiti’s 

Criminal Justice System and tlie New Public Safety FaciIity, p. 23. 

63Letter from Tom Henderson to Vivian Watts, April 4, 1992. 

6.1 Metropolitan Washington Council of Governments (COG) 

and Metropolitan Washington Court Administration Confer- ence, Drugs and the Judicial Response-Dnrg Awareness Seminar for Judges in the Metropolitan Washington Region: Evalua- tion Report, by Ronald I. Weiner (Washington, DC: 

Metropolitan Washington Council of Governments, January 

lBO), p. 56. 

65Joan E. Jacoby, Edward Ratledge, and Heike Gramckow, An 

Evaluation of the Expedited Dnrg Case Management Program 

(Washington, DC Jefferson Institute for Justice Studies, 

1992). 

6Freed, ‘‘Crime Overloads LA. Justice System.” 

67Carolyn J. Moss, secretary of administration, Commonwealth 

of Virginia, Crime Commission testimony, October 17, 1989. 

68Russell Committee, The Drug Crisis and Utrderfiuidirig of the 

Justice System in Baltimore City, p. 35. 

@Freed, “Plea Bargaining Becomes the Currency of the 

Courts.” 

70 American Bar Association, Report on the Crisis in the Criminal 

71Freed, “Plea Bargaining Becomes the Currency of the 

I2Report to the Nation on Crime and Justice, p. 83. 

73 “Felony Sentences in State Courts, 1988,” BJS Bulletin, De- cember 1990. 

74 “Felony Defendants in Large Urban Counties, 1988,” BJS Bul- letin, April 1990. 

75 Hennepin County Board of Commissioners et al., Hennepin’s 

Criminal Justice System and the New Public Safety Facility, p. 23. 

76Federal Courts Study Committee, Reporf, p. 83. 

77Ru~~ell Committee, The Dnig Crisis and Underfunding of the 

Justice System it1 Baltitnore City. 

78 David Freed, “The Only Agreement on Crime: No Easy An- swers,” Los Angeles Times, December 22, 1990. 

79Taken from speech by Delegate Warren G. Stambaugh at a 

confcrence on Legislative-Judicial Relations: Seeking a New 

Partnership, Denver, Colorado, October 1-3, 1989. 

8o Diane Colasanto, “Widespread Public Opposition to Drug Legalization,” nie Gallup Poll Motitlily 292 (January 1990): 2-8. 

81 Virginia Commission on Prison and Jail Overcrowding, 1989 

Conimission on Prison and Jail Overcrowding Report (Washington, DC: National Council on Crime and Delinquency, 1989), 

p. 18. 

Justice System, p. 8. 

Courts.” 

82 COG, Dmgs and tlie Judicial Response, p. 37. 

83 BJS, “Recidivism of Felons on Probation, 1986-89,” EJS Special Report, February 1992. 

84 Curtis Campbell, Candace McCoy, Chimezie A.B. Osigweh, 

Yg, “The Influence of Probation Recommendations on Sentencing Decisions and Their Predictive Accuracy,” Federal 

Probation 54 (December 1990): 18. 

85 David Freed, “System Overflows with a Flood of Probation- ers,” Los Angeles Tinies, Deember 21, 1990. 

86 Commission on the Future of Virginia’s Judicial System, 

Courts in Tmsition (Richmond, 1989), p. vii. 

87 COG, Dmgs and the Judicial Response, p. 39. 

88 Taken from confidential interview, 1990. 

89 National Conference of State Legislatures, Federal Update, 

90 Report to the Nation on Crime and Justice, p. 91. 

91 Confidential interview, 1988. 

92 G. Larry Mays, “The Impact of Federal Sentencing Guidelines 

on Jail and Prison Overcrowding and Early Release, in Cham- pion, ed., The US. Sentencing Guidelines, p. 190. 

93 Vivian E. Watts, “Crime in Virginia,” Newsletter, Univemity of 

Ktgiiiia Center for Public Policy, June 1988. 

94 Deborah G. Wilson, “The Impact of Federal Sentencing 

Guidelines on Community Corrections and Privatization,” in 

Champion, ed., 77ie US. Sentencing Guidelinu, p.171. 

95Charlotte Low Allen, “The Success of Authority in Prison 

Management,” Insight 5 (February 13, 1989): p. 17. 

96 Susan E. Martin, Lee B. Sechrest, and Robin Redner, The Rehabilitation of Criminal Offenders: New Directions for Research 

(Washington, DC: National Academy Press, 1981). 

97 “Probation and Parole, 1989,” BJS Bulletin, November 1990. 

98 Mays, “The Impact of Federal Sentencing Guidelines,” p. 192. 

99 Paul Snider and Becky Ney, “Oregon Group Attacks Causes of 

April 26, 1991. 

Jail Overcrowding,” County News, September 12, 1988. 

U.S. Advisory Commlsslon on Intergovernmental Relations 59 
loo Kay Knapp and Ennis Hauptly, “US. Sentencing Guidelines 

in Perspective: A Theoretical Background and Overview,” in 

Champion, ed., The US. sentencing Guidelines, p. 5. 

lol ”Population of Public Institutions Reaches New High, OJJDP 

Finds,” Criminal Justice Newsletter 22 (May 1991): 7. 

lo2Mistretta v. United States, 109 S.Ct. 647 (1989). 

Io3 “Drug Cases Avalanche Buries Federal Courts,” Wmlritrgton 

Io4Federal Courts Study Committee, Report. 

lo5 Albert W Alschuler, “The Selling of the Sentencing Guidelines: 

Some Correspondence with the U.S. Sentencing Commission,” 

in Champion, ed., The US. Sentetrcing Guidelines, p. 89. 

Io6 Ohio Governor’s Committee on Prison and Jail Crowding,Find Report, by David Diroll, Candace Peters, and Steven Van 

Dine (Columbus: Governor’s Office of Criminal Justice Ser- vices, 1990), p. 6. 

Post, December 20, 1990. 

lo71bid., p. 16. 

lo* Ibid., p. 19. 

‘09 BJS, Prisons and Prisoners in the United States (Washington, 

‘loFederal Courts Study Committee, Report, pp. 139-140 

“‘Ibid., p. 139. 

“’Ibid., p. 106. 

ll3Ibid., p. 23. 

‘14 Knapp and Hauptly, “US. Sentencing Guidelines in Perspec- tive,” p. 3. 

“’Federal Courts Study Committee, Report, p. 23. 

‘I6Knapp and Hauptly, “US. Sentencing Guidelines in Perspec117GOOd~tein and Kramer, “Case Processing and the Federal 

‘I8 Knapp and Hauptly, “US. Sentencing Guidelines in Perspec- 

‘19 Federal Courts Study Committee, Report, p. 142. 

120 Steven I? Lab, “The Potential Deterrent Effects of the Guide12’ Ellen Hockstedler Steury, “Prosecutorial and Judicial Discre12’ 18 U.S.C. Sec. 3553@), (1989). 

123 “Report Finds that Judges Comply with Sentencing Guide124 Goodstein and Kramer, “Case Processing and the Federal 

12’Federal Courts Study Committee, Report, p. 139. 

lz6Franklin H. Marshall, “Diversion and Probation,” in Champion, ed., The U.S. Sentencing Guidelines, p. 157. 

12’ Federal Courts Study Committee, Report, p. 141. 

12* Ibid., p. 140. 

DC, April 1992). 

tive.” 

Sentencing Guidelines,” p.118. 

tive.” 

lines,” in Champion, ed., US. Sentencing Guidelines.” 

tion,” in Champion, ed., US. Sentencing Guidelitzes. 

lines,” The Third Bmncli 22 (October 1990). 

Sentencing Guidelines,” p. 112. 

129 Tracy Thompson, “Drug-Case Avalanche Buries Federal 

130 “Report Finds that Judges Comply with Sentencing Guide13’ Alschuler, “The Selling of the Sentencing Guidelines,” pp. 

13’Federal Courts Study Committee, Repo~, p. 138. 

133 Alschuler, “The Selling of the Sentencing Guidelines,” p. 53. 

134 Knapp and Hauptly, “U.S. Sentencing Guidelines in Perspec13’ Michael Isikoff, “Florida’s Crime Crackdown is Freeing Fel- 

‘%Snider and Ney, “Oregon Group Attacks Causes of Jail Over13’ Ibid. 

Courts,” CVehington Post, December 20,1990. 

lines.” 

56-57. 

tive,” p. 12. 

ons Early,” Wmhington Post, December 28, 1990. 

crowding,” p. 8. 

Sentencing Reform Act of 1984. 

13’ Dean C. Champion, ed., 77;e US. Sentencing Guidelines, p. 

245. 

140 “Federal sentencing in Transition, 1986-90,” BLS Special Report, June 1992. 

14’ Adam Walinsky, “Walinsky’s Laws,” in Paul Dickson, ed., The 

Oficiul Rirles (New York Dell Publishing Co., 1978), pp. 

182- 183. 

142 Taken from confidential interview, 1990. 

143 Wilson, “The Impact of Federal Sentencing Guidelines on 

144 “Federal Sentencing in Transition, 1986-90.” 

14’Federal Courts Study Committee, Report, p. 134. 

146 Knapp and Hauptly, “U.S. Sentencing Guidelines in Perspective,” p. 13. 

147Letter dated November 27, 1989, from Assistant Attorney 

General Edward S. G. Dennis, Jr., to the Honorable JosephE 

Weis, Jr., in Federal Courts Study Committee, Working Pqpers 

and Subcommittee Reports, Volume II (Philadelphia, 1990), p. 2 

14sArlhur Maass, “U.S. Prosecution of State and Local Officials 

for Political Corruption: Is the Bureaucracy Out of Control in 

a High-Stakes Operation Involving the Constitutional Sp 

tern?” Publiirs: Tlte Journal of Federalism 17 (Summer 1987) 

14’ Thompson, “Drug-Case Avalanche Buries Federal Courts.” 

lS0Federal Courts Study Committee, Report. 

Is’ Ibid., p. 37. 

Freed, “Volume of Crime Allows Many Suspects to GO Free.” 

lS3Federal Courts Study Committee, Report, pp. 15-16,36. 

lS4 Federal Courts Study Committee, Working Papers and SubIs’ Alschuler, “The Selling of the Sentencing Guidelines,” p. 50. 

156 Skoler, Orgatiizit~g the Non-System, p. 8. 

Communily Corrections and Privatization.” 

195-230. 

cotirmittee Reporis, p. 156. 

60 U.S. Advisory Commission on Intergovernmental Relations 
3 -CRIMINAL JUSTICE OPTIONS 

TO MORE PRISONS AND JAILS 

u ypically, criminal justice policy discussions are 

based on the assumption of incarceration for those con- victed of a crime. Other means of dealing with criminal 

behavior are regarded as the alternative, requiring 

proof of why someone should be freed rather than why 

he or she should be held. The Supreme Court rejected 

this view regarding pretrial detention in United States v. 

Salerno (1987): “In our society, liberty is the norm, and 

detention prior to trial or without trial is the carefully 

limited exception.”’ 

Some advocates of alternatives also believe that incarceration of sentenced offenders should be used only 

after all other options have been rejected. They argue 

that, given the large number of persons who serve their 

sentences in the community without jeopardizing public 

safety, prison and jail space should be viewed as a valuable public investment to be used only if it produces the 

best results, and not as a requirement for punishment. 

This chapter is a review of the use of options other than 

secure detention. While it starts with a brief discussion of the 

concerns that are creating new interest in reducing incarceration and ends with an analysis of the differences between 

the states in the use of community sanctions, the heart of the 

chapter is a catalog of specific programs: 

Options to reduce pretrial detention; 

Community-based programs to provide a range 

of sentencing options for probation; 

Programs to strengthen the use and credibility 

of parole; and 

Programming in prisons and jails to reduce the 

length of stay. 

This listing is designed to familiarize general government officials with the large number of program options 

before taking up the governmental challenges involved 

in making these programs more effective or expanding 

their use in Chapter 4. 

First, it is important to clarify the frequently cited 

statistic that three out of four adults serving a sentence 

for a criminal offense are living in the community. This 

is a much higher proportion than the general public 

might assume, and some would object immediately to 

seeing this ratio go any higher. However, this standard 

statistic is somewhat misleading because it lumps serious and minor offenders together. 

Although it is not uncommon for the general public 

to use the terms jail and prison interchangeably, public 

policy consideration of how the growth in the number of 

incarcerated persons might be brought under control 

should not mix the reasons for holding persons in a local 

jail with the reasons for holding others in a state prison. 

This is as inappropriate as a school policy debate that 

mixes arguments about whether attendance should start 

at age four with whether students can drop out at age 16. 

Therefore, rather than the muddied picture that 

three out of four offenders serve their sentences in the 

community, a clearer context for considering options is 

provided by noting, as shown in Figure 3-1 (page 62), 

that almost two out of three people (64.1%) who could 

be imprisoned because of a serious crime (felony) are 

living in the community, while more than nine out of ten 

people (93.0%) who could be held in jail because of a 

misdemeanor are living in the community. 

Figure 3-1 depicts the residual potential to relieve 

the need for prison and jail space only for offenders sentenced to correctional control. In most jurisdictions, 

there are approximately three times more misdemeanor 

arrestees (excluding non-DUI traffic offense^)^ who are 

not placed under correctional control. 

Bypresentingcriminaljusticeoptions in termsof all 

arrests, Figure 3-2 depicts a more complete perspective 

on the importance of the full range of programs discussed in this chapter in reducing the need for jail and 

prison beds. In addition, Figure 3-2 shows the total demands on the criminal justice system from policing, intake, court, and record-keeping agencies even when individuals are not placed under correctional control. 

US. Advisory Commission on Intergovernmental Relations 61 
Figure 3-1 

Proportion of Convicted Felons and Misdemeanants under Correctional Control in the Community 

(Estimates based on reports that about half of the 2.7 million on probation had becn convicted of misdemeanors: 

and about three-quarters of the people in local jails arc being held because of a felony offen~e.~) 

2 Out of 3 Felons Over 9 Out of 10 Misdemeanants 

F F F F F F F F F* M 

- Probation or Parole- Prison -Jail -D = Probation C 

*In addition to those charged with a felony who are being held pretrial. 

Total Arrests* 

Figure 3-2 

Proportion of Arrestees Diverted from Jail or Prison through Criminal Justice Options 

No Charge, Deferred, 

Summons, Fine, 

Suspended Sentence’ 

Probation3 

Length of Sentence 

(Probation & Parole 

beyond 12 rnonthsr 

C--- Felonies ------)- Misdemeanors b 

Diverted 

P-Prison 

J -Jail 

* Excluding non-DUI traffic offenses. 

Source: ACIR computations from: ‘FBI 1990 UCR arrest estimate; “The Prosecution of Felony Arrests, 1988,” BJS Bulletin, Feb- ruary 1992; “Recidivism of Felons on Probation, 1986-89”; “Probation and Parole 1990.” ’BJS,“Profile of Jail Inmates, 

1989,” BJS Special Report (Washington, DC, April 1991) and “Pretrial Release of Felony Defendants, 1988,” BJS Bullelin, 

February 1991. 3“Felony Sentences in State Courts, 1988,” BJS Bulletin, December 1990, and “Profile of Jail Inmates, 

1989.” 4U.S. Department of Justice, Correctional Popidations in the United States, 1990 (Washington, DC, July 1992). 

the only reason for doing so is a search for cost savings. 

Correctional budgets have been the fastest growing area 

of state and county spending for almost all of the last 15 

years. This fiscal impact has been due in large part to the 

constant pressure to house more and more inmates at an 

average cost that continues to match the cost of an Ivy 

League education. Alternatives are viewed as a way to 

save at least the cost of housing, while perhaps improving 

the behavior of certain offenders. 

INTEREST IN INCREASED USE 

OF SENTENCING OPTIONS 

Shifts in Public Policy 

General government officials are giving increased 

consideration to alternatives to incarceration. For many, 

62 U.S. Advisory Commission on Intergovernmental Relations 
Additionally, many criminal justice officials believe 

that alternatives must be developed to allow them to respond to criminal behavior more appropriately, The limited sentencing options available in most states have been 

described as “the choice between an aspirin or a lobotomy.”5 The need to cxpand sentencing alternatives as a 

public safety issue was stressed by the attorney general of 

the United States in his opening remarks to the 1990 National Drug Conference: 

To echo again the President’s strategy, “If state 

and local officials wish to expand their capacity to 

prosecute and sentence drug offenders, they 

must broaden their notion of what constitutes 

punishment.’’ Some refer to this as alternatives to 

incarceration. Better, I believe, to refcr to this as 

alternatives to non-incarceration. . . . We also 

know that there are many for whom incarceration 

is not appropriate. But is simple probation sufficient? Turning them back into the gcncral population? Particularly when probation officers are 

carrying caseloads far beyond what is manageable? Wc need to fill the gap between simple probation, on the one hand, and prison. We need intermediate steps-intermediate punishments.6 

The growing consensus at the end of the 1980s 

seemed to be, then, that expanding the range of choices 

for penal control is an opportunity to increase public safety while cutting costs in thc long term. Now, thisconsensus 

is being openly joined by those whc believe that alternatives also should be pursued as a mcans to stop criminal 

behavior more effectively. 

During most of the 1980s, the notion that alternative 

programs could stop criminal behavior through rchabilitation seldom was espoused publicly as the principal reason 

for establishing a program. However, the lack of success in 

reducing overall crime rates, the growth in violent crimes, 

publicity about America’s high rate of incarceration, and 

budget pressures all have combined to give rehabilitation 

efforts more credence. The trend for the 1990s, however, 

is to use rehabilitation selectively, by attempting to identify “career criminals” and concentrating limited rehabilitation resources on the remainder, who are not apt to fall 

into a pattern of repeated crime-unless their experience 

in the criminal justice system reinforces such behavior. 

Public Acceptance 

Although it may not be responsible to advocate 

policies based solely on their acceptability to the 

public, it would also be foolhardy to ignore the 

public’s sentiments. Part of effective policymaking depends on an understanding of what the 

public already knows and believe^.^ 

As noted in the discussion in Chapter 2 of who is sentenced for what acts, elected officials have the burden of 

representing the public’s priorities. This goes far beyond 

getting reelected. It ensures that government operations 

do not bccome self-serving. Knowing what is driving public sentiment, as well as public priorities, becomes even 

more important when elected officials feel that they must 

try to lead public opinion in support of policy change. 

Apparently, the public does not accept that sentencing policies over the last 15 years have played a major role 

in prison and jail growth. Consequently, citizens are reluctant to agree that these policies should be changed toward 

greater use of alternatives. For example, during the summer of 1986, the Edna McConnell Clark Foundation involved 125 people in focus groups at ten locations: New 

York City; Little Rock; Minneapolis; Chicago; Boston; Atlanta; Westchester County, New York; San Diego; St. 

Louis; and Houston. They found that citizens were quite 

well informed on prison and jail crowding, but that: 

Americans believe that prison overcrowding is 

caused by an increase in crime. They simply do 

not believe that the crime rate has leveled off or 

that mandatory and stiffer sentencing are a cause 

of the problem. . . . These measures and especially mandatory sentencing were popular with the 

focus groups. Respondents felt that they made 

sentences more uniform and punishment more 

predictable-both of which, they said, had a deterrent effect. Most tended to disregard the connection between such laws and overcrowding. . . . They did not want to see that what they consider 

a positive step has had an undesirable effectovercrowded prisons that warehouse idle inmates! 

In fact, reducing idleness became the main factor these 

citizens would accept as a reason to reduce prison and jail 

crowding. 

The public’s distaste for having inmates idle can be 

harnessed by political leaders in support of more prison 

and jail space, programs, personnel, and/or in support of 

community alternatives. When it is tied directly to the 

public’s desire for punishment, it can become a means of 

creating even greater support. In a 1982 Gallup Poll, 59 

percent thought it was more important to rehabilitate in 

prison than to punish. Just seven years later, support for 

rehabilitation had dropped to 48 percent and support for 

punishment had grown from 30 to 38 percent. Nevertheless, Wayne Huggins, director of the U.S. National Institute of Corrections and a former sheriff, regularly sells audiences on how the middle class idea of punishment 

misses the mark for most offenders: 

Legislators, governors, people such as myself 

set punishment based on what frightens us, what 

deters us, what things you could do to us that 

would be the worst thing in our lives. And certainly one of the worst things you could do to us k take 

our freedom and incarcerate us. . . . But if you 

stop and define the punishment from the offender’s eyes, what you might end up with is an interesting contradiction. We are afraid that we would 

be embarrassed and would lose our reputations 

or our credibility. In fact, in many cases, the inmate’s stature is actually raised. The harder the 

parole officer was, the tighter the prison, their 

status is that much higher in the criminal commuU.S. Advisory Commission on intergovernmental Relations 63 
nity. Most of these people never had a job. Ultimately we would be afraid of losing our freedom, 

our friends and family. In all too many cases, they 

are not getting away from friends and family, they 

are going to friends and family. 

So many have been captive in a few small city 

blocks, they don’t know freedom as you and I do. 

They are going to get clean clothes at least three 

times a week, they are going to get free dental 

care, free medical care, recreation and a roof over 

their heads, three square meals a day. That is why 

I think that we have to look at punishment in 

terms of the way they define, rather than the way 

we define it? 

The more that officials tell the public how little there 

is to do in most institutions, besides watch television, the 

more public support can be raised for putting criminals to 

work. The head of New York City’s probation services had 

previously spent many years working with victims of crime. 

Her new position might have been regarded as antithetical. Instead, she found that, if time is spent explaining the 

goals of various alternative sanction programs, especially 

community restitution, victims of crime can become effective lobbyists for probation department budget needs. 

Although drug, alcohol, and sex offender programs 

do add to per prisoner costs, the increase is very small 

compared to the basic costs of security personnel, food, 

and facility operations. The problem is that these programs represent add-ons in most systems and are in direct 

competition for budget dollars with day care, environmental clean-up, or any number of initiatives with popular constituencies. For example, the cost of incarceration at the Bal- timore jail is $35 a day per inmate; this is $23 more per day 

than the daily cost per student in the city school system.lo 

Furthermore, education, work training, and medical 

services can add to public resentment if prisoners are seen 

as receiving these advantages free while the public at large 

must pay. Elected officials at the focus-group discussions 

spoke of having to deal with the public’s sense of fairness, 

reporting deep resentment when the citizens perceive 

that criminals are given unfair advantages. Officials find it 

hard to add to correctional budgets when it costs more to 

house a prisoner than the average person spends to support a family. Because offenders are not viewed with sympathy, this level of spending is especially galling. As the 

National Academy of Science observed in 1981, “While 

much of the general populace accepts rehabilitation in 

principle, they almost certainly would object to providing 

more extensive social benefits to wrong doers while ‘good 

citizens’ are denied similar services and opportunities.”” 

ACIR’s finding of two decades ago still rings true: 

Citizens and their elected representatives have 

been reluctant to grapple with or support improvements in corrections for reasons that can be 

understood: 

This issue, after all, involves some of the 

most troublesome members of society; 

Investment in rehabilitative resources strikes 

at the traditional “eye-for-an-eye” belief that 

incarceration and punishment are t- )per 

ways to treat offenders; 

Reform involves obtaining new money as 

well as redirecting funds now being used to 

support the present, mostly ineffective system; and 

Programs for institutional modernization, effective probation and parole, and adequate 

personnel compensation and training do not 

command as much public support as health 

and hospitals, education, highways, and other programs benefiting groups or constituencies of law-abiding members of our society.’* 

Nevertheless, Alabama authorities conveyed encouragement to officials gathered at a recent annual meeting 

of the National Governors’ Association that the public’s 

desire for fairness can be refocused in support of alternative sanctions. When 400 Alabama residents were given a 

choice of prison or probation for 23 offenders, whose 

crimes ranged from petty theft and joyriding to rape and 

armed robbery, the group initially chose prison for 18 of 

the 23. After an explanation of costs and alternative sanctions, some of which were related to the offense, such as 

restitution or community service, the public’s preference 

for prison sentences declined significantly. They chose 

prison for only four of the 23. In citing this study, California officials observed that “given Alabama’s historical 

conservatism on criminal justice, it is reasonable to expect 

similar results in other parts of the country.”13 In fact, a 

1989 study of California residents showed similar results. 

Participants were given 25 different crime scenarios and 

asked to select the preferable punishment option. Incarceration was selected initially by 63 percent of the respondents, but by only 27 percent after the briefings.14 Studies 

such as these demonstrate the value of informing the public, with emphasis on the issues that concern them. 

Summary 

There are signs that there may be broader use of correctional options in the 1990s. Constructing and operating 

significantly more prison and jail space is straining state 

and county budgets. There is growing recognition that 

public safety concerns cannot be met for a significant portion of probationers and parolees under standard programs. Many are seeing a need for a more effective criminal justice response to reducing future criminal activity, 

given the apparent ineffectiveness of high incamration 

rates. Finally, the public’s sense of justice is apparently not 

driven by a desire to punish. If programs can be shown to be 

less costly, provide restitution, and address the unfairness of 

inmates simply being idle, they can garner public support. 

General government elected officials need to become 

conversant with what is being done in other states and localities to get a realistic perspective on what is possible in 

their communities. Their confidence level is important in 

addressing public concerns, in holding program managers 

64 US. Advisory Commission on intergovernmental Relations 
accountable for realistic performance, and in supporting 

criminal justice officials’ initiatives to develop a more effective system. 

AN OVERVlEWOF OPTIONS 

TO INCARCERATION 

Often when general government officials look for information about alternatives to keeping a person in jail or 

prison, they find only a collection of operational details 

aimed at criminal justice administrators. Such a plethora 

of information may make it difficult to focus on the public 

policy issues and system support needed for any program’s 

success. The next sections focus on such governmental 

factors in pretrial release, probation, and parole, followed 

by a summary of programs offered within jails and prisons 

to reduce the need for further incarceration. 

This catalog of programs will reveal little that is new 

to most localities, but it will arm general government officials to meet the challenge of expanding and effectively 

supporting what is in place. Although these governmental 

issues are the focus of the next chapter, several themes 

bear mentioning, now: 

w Alternatives are not no-cost. 

w 1 Public safety means that the same degree of attention needs to be given to staffmg for community supervision as traditionally has been given to police. 

Modifying criminal behavior means professional 

involvement at or above levels that were not effective earlier in the individual’s life. 

In the absence of the resources to address either 

or both of these needs, alternatives become simply a sifting-out process, giving the offender 

another chance. On the positive side, if the offender does not commit another crime, then the 

system is free of further dealings at little cost. 

w 

w 

Pretrial Options 

Pretrial release programs are extremely important in 

relieving jail overcrowding because, typically, half of the 

people in most jails are awaiting trial or arraignment (Figure 3-3). Demand for jail space is affected not only by 

whether the accused is or is not released before trial, but 

how many days or even hours it takes to make and carry 

out the decision to release. How pretrial release is administered also will affect case management in the court if the 

accused is not available when the case is ready to be heard. 

In 1988, in the 75 largest counties, approximately 

two-thirds of the persons charged with felonies were released prior to trial. When releases of misdemeanants and 

felons are combined, the proportion exceeds 80 percent.I5 By 

felony offense, the likelihood of release varied from 86 percent of those charged with driving under the influence or 

Figure 3-3 

Population Profile of Local Jails, 1989 

Awaiting 

Sentenced 

50.1% 

Awaiting 

Sentence 

7.3% 

Source: US. Department of Justice, Bureau of Justice Sta- tistics, “Profile of Jail Inmates, 1989,” BJS Bulletin, 

April 1991. 

other felony driving charges to 72 percent of those charged 

with drug offenses to 59 percent of those charged with a 

violent offense. The more serious the criminal record, the 

less the likelihood of release: threequarters of those with no 

prior conviction, half of those with a prior felony conviction, 

and only onequarter of those on parole were released.I6 

Traditionally, the decision to release and the condi- tions imposed are based on the likelihood that the defen- dant will appear at trial. In the 1988 large-county survey, 

approximately 25 percent of those released failed to ap- pear, and at the end of one year, one-third of them were 

still fugitives. The greatest likelihood not to appear was 

among those with five or more convictions, while the 

greatest likelihood of not being found was among those 

who had paid a full cash bond.” 

More recently, legislatures have enacted laws to require that public safety also be considered. The Federal 

Bail Reform Act of 1966 created a presumption in favor of 

release. At least 18 states enacted similar legislation, and, 

as early as 1970, an amendment for the District of Columbia directed judges to consider community safety in addition to the risk of flight. The concept of “preventative detention” also was introduced, defining certain types of 

offenses that would preclude bail.18 Over 60percent of the 

states now have one or more provisions regarding community safety in considering pretrial re1ea~e.l~ Some include 

provisions regarding specific types of cases, such asa law in 

Minnesota that mandates at least a $1,200bond in domestic violence cases. Success in protecting community safety 

is measured by the fact that less than one-fifth of those on 

pretrial release are rearrested for a felony offense committed while on release. Defendants under age 21 are 50 

percent more likely to be rearrested than those over 35. 

Again, the more prior felony convictions, the greater the 

likelihood of rearrest.’’ 

U.S. Advisory Commission on Intergovernmental Relations 65 
The following brief summaries describe the basic 

components of balancing the presumption of the right to 

be free pending trial, public safety, and court functioning. 

While the pretrial release decision usually is made by a 

judge or magistrate, other officials across the country have 

taken the initiative to establish release options and to enhance the court’s decision through better offender information. In addition, this subsection discusses initiatives to 

sanction minor criminal acts while minimizing the use of 

court or jail resources. 

Types of Program Initiatives 

Risk Assessment Models. In the early 1960s, the Manhattan Bail Project was the first notable attempt toanalyze 

the factors related to the likelihood to appear for trial and 

to develop a risk-assessment model. Subsequent models, 

which are objective scoring systems, have allowed noncourt personnel to make substantially more of the decisions regarding release. This is particularly important at 

night and over the weekends, because it reduces the need 

for additional jail beds if defendants have to be held in jail 

until the next workday. Some jurisdictions use interns or 

other low-wage employees to conduct screening and verification. The better the information network that can be accessed, the more risk-assessment models can be used with 

confidence, either to establish expedited review of routine 

cases or to supplement the subjective judgment of the court. 

Release on Recognizance (ROR). The Manhattan Bail 

Project also was the first to document that a defendant 

with roots in the community was not likely to flee, irrespective of ability to pay a bondsman. Because of this finding, about 70 percent of those released today are freed 

nonfinancially, compared to less than one percent of cases 

in the 1960s.*l 

Enhanced Notification. Some defendants do not appear for trial simply because they forget. The average time 

between arrest and adjudication is 122 days for released 

defendants, compared to only 37 days for detained defendants.22 Although priority for scheduling trials for detainees is important in relieving jail overcrowding, an average 

of four months’ wait often has meant that defendants lose 

track of their court dates. When defendantsfail to appear, 

bench warrants are issued. Thus, a minor offense, such as 

a neighbor complaining of disorderly conduct, can multiply into wasting resources to rearrest, book, and detain the 

defendant. Some jurisdictions, therefore, have found it 

cost-beneficial to hire personnel to remind those on release of their court dates, and/or provide immediate follow-up to bring the defendant back into the court system. 

Pretrial Services Programs. Pretrial screening units 

have been established in at least 500 jurisdictions. Forty 

percent of these programs have the power to release a defendant on their own authority, although this power may 

be limited regarding felons. Most units provide supervision of releases, if ordered, and maintain a list of referral 

agencies for defendants in need of social services, drug 

treatment, or mental health services. In 38 percent of the 

jurisdictions, these units are administered by the court; 38 

percent by probation; and 10 percent by the sheriff.23 

Pretrial Custody Screening. This initiative is a direct 

review of the cases of defendants who have not been released by the judge or magistrate. These cases may involve 

transfer or the need for additional procedures that can expedite the removal of the defendant from the local 

The National Prosecution StandardF, developed by the National District Attorneys Association (NDAA), recommends 

that prosecutors report to the court monthly on the status of 

cases for defendants who have not been released.25 

Summons in Lieu ofArrest. If a police officer issues a 

summons or citation, the accused does not have to be taken to jail and booked. The use of citation release for misdemeanor charges and regulatory violations has been 

common for many years. Some jurisdictions with overcrowded jails, however, are now expanding the use of citations for drug possession, some property offenses, assault, 

and domestic violence cases. In most jurisdictions, the 

prosecutor’s office has worked with the municipal police departments to develop guidelines on the proper use of citation 

arrests. Because most of these cases would have been 

booked and relcased after only a short period in jail, however, citation arrests produce only minor savings of jail beds. 

As with ROR, follow-up notification of the defendant 

just prior to the court date also is very important. Given 

that these represent the most minor offenses, some courts 

have set a special schedule to try people released on citation quickly as another way of reducing the waste of resources produced by failures to appear in court. In fact, 

some even argue that it is better to establish a court capacity to try misdemeanors immediately, even if it means 

holding defendants overnight, rather than using citations, 

because of the high rate of failure to appear in certain misdemeanor categories. 

Bail. While states may mandate that localities have 

non-monetary, prerelease programs in place as a condition of funding under the state’s Community Corrections 

Act, actual use will vary. According to officials at one overcrowded urban jail in New Jersey, there were no nonviolent, first-time arrcstccs being held pretrial. In a suburban 

county, however, a woman had been held for four months on 

a shoplifting charge because she could not post $100 

Figure 3-4 shows the results of a 1988 survey of the 75 

largest county jail systems. In this survey, 4 percent were 

held without bail, 29 percent were released without any 

form of bail under one of the programs mentioned above, 

and another 6 percent were released on an unsecured 

bond (meaning they did not have to pay any money unless 

they failed to appear). The remaining 61 percent of the defendants had to pay before they could be released. Half of 

these did not make bail and were held in jail until trial?’ 

Of the approximately 30 percent who did pay money 

to be released, more than half used a third party, typically 

a bail bondsman. The usual 10 percent fee charged by bail 

bondsmen is not returned. With a deposit bond, the 10 ~ 

percent that the defendant deposits with the court is returned (less an administration fee) when the case is complete. Deposit bonds are a relatively recent innovation, 

developed in part to move the release process along faster 

and to produce court revenue. Deposit bonds also were instituted by some systems because they believed that more 

66 U.S. Advisory Commission on Intergovernmental Relations 
Figure 3-4 

Distribution of Felony Defendants by 5pe of Pre-Trial Release, 1988 

Held 

(i.e., ROR) and Releascd Bail 

29% 31% 4% 

Released without Bail Paid Bail Without 

Unsecured 

6% 

Could Not Pay Bail: Held 

Bond 30% 

Source: US. Department of Justice, Dureau oCJusticc Statistics, “Prctrial Rcleasc of Felony Defendants, 1988,”BJS BirIlerin, 1991. 

defendants would appear for trial if they knew they would 

get their money back. However, the 1988 survey did not 

bear this out. The failure to appcar was 27 percent for 

those whose deposit would be returned by the court, while 

only 20 percent of those who had paid a bail bondsmen 

failed to appear. The final category of bail, full cash bond, 

was associated with a 26 percent failure to appear and, as 

noted earlier, resulted in the highest percentage still fugitive after one year.28 

The critical time period to be examined for the effcct 

of bail policies and procedures on jail overcrowding is the 

first days of detention. For example, if the averages for the 

75 largest counties in able 3-lZ9 were a profile of one jail, 

local officials should expect answers as to why those making a deposit with the court cannot be handled as fast as 

those using a bail bondsman and why the decision for ROR 

cannot be made as quickly as an unsecured bond decision. 

Such oversight questions are in addition to the perennial 

question: Why should anyone’s release depend on ability 

to pay money? 

For example, a 1988 study indicated that almost half of 

the Baltimore City jail population had a bail of $1,000 or 

lcss, meaning that paying $100 would effect release. When 

the Offender Aid and Restoration Program put up the 

money out of private and government funding for the release of approximately 1,500 inmates in FY 1990, this resulted in a nct saving of over $2 million in jail costs. However, it still cost the jail $367,500 for the seven days the 

offenders were held before their release could be arranged, leading the Bar to observe that: 

Table 3-1 

Time from Arrest to Release for Felony Defendants Released before Case Disposition, 

by Type of Release and the Most Serious Arrest Charge, 1988 

Percentage of Felony Defendants in the 75 Largest Counties 

Type of Release Who Were Released before Case Disposition within: 

Arrest Charge of Defendants Same Day 1 Day 2 Days 1 Week 1 Month 6 Months 1 Year 

and Most Serious Number 

All Release Defendants 28,346 22.5% 45.5% 58.7% 78.2% 91.5% 99.4% 100% 

Qpe of Release 

Surety Bond 6,783 23.1 50.3 59.0 75.5 91.7 99.3 100 

Full Cash Bond 3,2 13 7.5 20.5 32.0 67.1 85.2 99.4 100 

Deposit Bond 2,540 27.2 38.1 49.5 72.3 91.0 99.1 100 

Unsecured Bond 2,571 52.7 72.0 78.5 86.8 92.9 99.4 100 

Citation Release 12.765 18.7 45.3 63.2 82.4 93.4 99.6 100 

Recognizance/ 

Most Serious Arrest Charge 

Violent Offense 5,374 15.6 33.1 47.3 70.2 86.3 98.7 100 

Property Offense 9,659 28.8 53.1 64.1 80.0 93.0 99.8 100 

Drug Offense 10,852 20.0 43.6 58.5 80.6 93.5 99.5 100 

Public Order Offense 2,461 24.0 50.8 62.7 77.8 88.3 99.1 100 

Source: U.S. Department of Justice, Bureau of Justice Statistics, “Pretrial Release of Felony Defendants, 1988,” BIS Bulletin, 1991, 

Table 9. 

U.S. Advisory CommlssIon on Intergovernmental Relatlons 67 
It seems clear that those inmates who would ultimately qualify for OAR should be screened out 

before even entering the jail. . . by application of 

realistic bail release standards by the District 

Court Commissioners. . . . At the initial Commissioner threshold level, important decisions are 

regularly made as to bail release. Great caw and 

careful consideration must be applied in the setting of a bail which will not be met. . . . The Court 

has now set guideline^.^^ 

Finally, the role of bail bondsmen has been controversial. Both NDAA and ABA standards advocate nonfinancia1 release or forms of bail that penalize the defendant for 

failure to appear. It has been noted that in some systcms, 

bondsmen do not bear sufficient risk of forfeiture and/or 

responsibility for returning absconders. A 1986 study estimated that forfeitures only amounted to 1 to 2 percent,31 

despite the fact that the national average for those on 

surety bonds who fail to appear after one year is over 5 percent.32 Frequently, the offenders are returned when they 

are arrested on another charge rather than due to expenditures by a bondsman in a search. 

Supervised Pretrial Release. This is a relatively new 

approach that grew out of both the concern for public safety and trying to avoid wasting criminal justice resources on 

minor offenders because they fail to appear. Its use has cxpanded rapidly according to a 1991 survey, which found 

that 80 percent of pretrial service programs provide supervision for released def~ndants.~~ Two New Jersey counties 

run a program for arrestees who have been held in jail for 

at least 30 days. Curfews are established, substance abuse 

counseling or other mental health services may be ordered, and the participant is closely supervised by a probation officer. Hams County (Houston), Texas, uses a weekly telephone check-in for all ROR defendants. 

Deferred Prosecution. Thc Federal Bail Reform Act of 

1966 and of 1984 established the rationale that conditions 

could be placed on pretrial release if they were reasonably 

related to the individual being able to await trial in the 

least restrictive setting. A series of these types of courtrelated programs were organized beginning in 1972 under 

the Treatment Alternatives to Street Crime (TASC) program. If the prosecutor and court agreed, defendants could 

accept referral to a community-based treatment program, 

and the pending case would be suspended or a summary probation issued. If the individual completed the program successfully, the pending charges were dismissed. 

The federal funding base for 130TASC programs in 39 

states was withdrawn in 1981, but there has been renewed 

use of such programs under the federal war on drugs. Local prosecutors have targeted drug users, who are charged 

for treatment at rates just below the relatively stiff fines 

they could be charged if‘they were tried and found guiltyof 

possession. The history of success under TASC treatment 

programs has been good, due in part to the fact that many 

participants are first offenders and because two-thirds of 

all persons illegally using drugs have jobs.34 

Figure 3-5 shows the growth in use of deferred prosecution (conditional dismissal) in West Germany. Although 

conditional dismissal is now being used for “fairly serious, 

especially economic, offenses” without trial, as well as for 

“petty cases,” the simultaneous reduction in sentences to 

prison was not a direct result; instead, it was due to a ripple 

effect from using the other options shown. Legislative initiative was responsible for this increased use of options, 

through a 1970 law prohibiting sentences to prison for 

short periods except under extraordinary circurn~tances.~~ 

Mediation. Mediation is used most in civil cases, and 

courts are beginning to try mediation to satisfy victims of 

minor crimes. For example, the Columbus, Ohio, City Attorney’s Night Prosecutor Program mediates about 45,000 

cases per year, with a settlement rate of 93 percent when 

both parties appear. In 1988, the program mediated more 

than 35,000 bad check cases, with over a half-million dollars recovered and only 1,100 formal charges filed. The 

program also hears domestic violence, simple assault, 

menacing, criminal damaging, and other 

Probation and Parole 

As noted in Chapter 1, there is a significant difference 

between probation and parole in terms of (1) the seriousness of parolees’ criminal records compared to probationers’, (2) the fact that parolees have served time, and (3) 

whether a judge or an executive agency determines who 

will participate. However, probation and parole will be 

taken up together in this subsection because the types of programs used and their administration are basically the same 

whether the program is for probationers or for parolees. 

In 1988, state courts sentenced 44 percent of convicted felons to state prison, 25 percent to jail, 30 percent 

to straight probation (in addition to those who received 

probation along with a jail or prison sentence), and 1 percent to an alternative ~entence.~~The average probation 

sentence of 43 months is considerably longer than the average jail sentcnce of seven months. Because of 

good-time credits and parole, the average prison sentence 

of 76 months also means that the average prisoner will be 

in prison only 24 months before being placed under parole 

supervision. Therefore, theoretically, probation represents a comparably significant sanction. 

Probation and Parole Caseloads 

However, although a number of strong programs will 

be described in the paragraphs that follow, in reality, most I 

probationers and parolees are under minimal supervision. 

For example, in Texas, at the end of August 1989, the governor’s office reported that 95.4 percent of probationers 

were on regular probation, which meant they were seen i 

once every three months. Only 3.7 percent were under intensive supervision and seen four times a month. Less 

than 1 percent-which included some substance abusers and 

those who had histories of sexual or family violence or a 

mental disability-were seen three times a month by probation officers with specialized training and caseloads of 4O:l. 

Finally, 0.1 percent were termed high-risk felons and were 

seen five times a week by officers with caseloads of 25:1.% 

68 U.S. Advisory Commission on Intergovernmental Relations 
Figure 3-5 

West German Criminal Sanctions, 1968 and 1989 

572,629 

Offenders 

837,693 

Offenders 

Fine 

63% 

Prison 

(suspended) 

13% 

Prison 

(not suspended) 

24% 

Conditional 

Dismissal 

21% 

Fine 

60% 

Prison 

(suspended) 

13% 

Prison 

(not suspended 

5% 

1968 1989 

Source: Statistisches Bundesamt, Fachserie A, Rethe 9: 

Rechtspflege 1968, p. 120; Statistisches Bunde- samt, Fachserie 10, Rethe 3: Strafverfolgung 1989, 

p. 42; Statistisches Bundesamt, Staatsanwaltschaften 1989, p. 14. 

It is because of system profiles such as this that, when 

general government officials fund strengthened probation 

and/or parole options, they may not see much, if any, direct effect on prison and jail populations. Judges, prosecutors, parole boards, and probation officers often use new 

or expanded options to give greater supervision to the vast 

majority already under regular supervision. Only to the 

degree that this increased supervision prevents further 

criminal activity will prison and jail population growth ultimately be affected. 

Classification of Potential Probationers 

and Parolees 

As with risk-assessment models in pretrial release, 

the use and refinement of objective classification models 

can make a significant difference in the use of probation. 

One of the most highly regarded offender classification 

and caseload management systems was developed starting 

in 1975by researchers working with the Wisconsin Department o€Correctionsand assisted by the National Institute 

of correction^.^^ Under this system, a riskheeds assessment instrument is completed on each probationer at regular intervals, and the level of supervision may be increased or reduced. 

The vast majority of probation agencies now have 

some form of classification system."' In 1984, the president 

of the American Probation and Parole Association noted 

the importance of classification instruments for community corrections agencies: 

The classification instruments that researchers 

developed over the past decade have really revolutionized parole and probation in the United 

States. . . .This development has made communities safer, in that clients with the highest risk of 

recidivism are placed in maximum supervision caseloads and watched more closely. It has also 

helped probation and parole administrators allocate their budgets in a more reasoned fashion.41 

A significant budget question for general government officials is whether such a classification system is part of a 

comprehensive, coordinated information system and not a 

redundant effort. 

Qpes of Probation and Parole Programs 

Civil Penalties. A civil rather than a criminal penalty 

can be used in three distinct areas. First, an offender can 

be punished without the act being classified as criminal. 

Civil penalties have long been used for most driving offenses, for example, and for regulatory offenses, such as 

noise ordinances, alcoholic beverage control laws, or environmental laws. Second, in a search for meaningful sanctions other than incarceration, communities have given 

new application to the reasoning that someone who has 

broken society's laws is not entitled to society's privileges. 

This has led to the suspension of drivers' and other licenses and to withholding public housing or unemployment benefits. Third, with increased experience in using forfeiture to confiscate property used in connection with a drug 

transaction without having to find anyone guilty, some localities are using the same techniques or applying the same logic 

U.S. Advisory Commission on Intergovernmental Relations 69 
to other areas. For example, the car of someone soliciting a 

prostitute might be confiscated. 

In passing such laws, general government elected officials need to weigh these different approaches case by 

case. Civil penalties can keep petty cases from clogging the 

court dockets and, in serious regulatory infractions, they 

can lead to better fact-finding without information being 

shielded under the Fifth Amendment. However, withholding benefits may be counterproductive to getting an 

offender back into mainstream, law-abiding activity. 

Monetary Sanctions. Fines and restitution, already 

among the most common penalties, are growing in popularity. They usually are in addition to a prison or jail sentence or to probation. For example, the U.S. Sentencing 

Commission authorized fines only as a supplement to other punishments and not as an alternative to them. In 1983, 

two-thirds of felony probationers were ordered to make 

one or more types of financial payment: probation supervision costs (34%), court fees (32%), restitution to the victim (28%), victim compensation fund (13%), fines (7%), 

and other (9%).42 Issues regarding the rate of collcction of 

these fines are explored in Chapter 7. 

In addition to the rate of collection, policy concerns 

should consider the severity of punishment related to the 

ability to pay. Day fines address this concern. They are relatively new in the United States, but have been used extensively in western Europe. Day fines are determined by 

multiplying a number of units that reflect the seriousncss 

of the crime by the average daily disposable income of the 

offender. A pilot project, sponsored by NIJ in Staten Island, New York, resulted in an 18 percent increase in the 

dollar amount ordered by the court. If the statutory caps 

on what could be charged in 25 percent of the cases were 

removed, the dollar increase would have been 79 percent. 

The increase in the number of sentences given fines under 

the pilot indicates that the system is not hard to administer. Adoption of such a system, however, raises the basic 

public policy question of whether uniform sentencing 

should be uniform to the offense or to the offender. 

Restitution. Restitution has gained strong favor with 

the public43 and is especially appropriate if the offender is 

employed. Therefore, it often is combined with incarceration by using weekend jail sentences or nonsecure residential centers. Under such programs, the offender’s entire 

paycheck may be surrendered for board and room and distributed to meet obligations. Elected officials must meet 

the challenge of physically locating such centers in the 

community to avoid further use of costly and possibly overcrowded jail space. 

The continuum of sanctions also should include similar centers to provide pre-employment classes and placement assistance for probationers or parolees who are not 

employed. In FY 1989, offenders in such a center in Harris 

County were able to contribute over $47,000 toward room 

and board, over $11,000 toward court-ordered fees, and 

$4,500 for their families. The center also requires community service and progress toward a GED (graduate equivalency diploma or high school 

Community Service. In cases where the offender is 

not employed or when restitution is not appropriate or is 

too easily paid, community service programs can be used 

to impress on the offender responsibility to society, provide a sense of accomplishment, and fill needs that would 

otherwise go unmet. Community service assignments may 

be carried out by offenders individually, but many offenders require greater supervision. Usually, a crew of ten or 

more is supervised by a probation officer. Work assignments should last 250 to 300 hours to allow the host agency 

to invcst in orientation and training and still gct some productive work to meet agency needs, as well as to promote 

some degree of commitment in the offender. Probation 

officials must aggressively seek out work opportunities 

and have the tiTc to work closely with the sponsors, which 

can be private groups, such as the Salvation Army, as well 

as government agencies. The more that these offenders 

represent true diversions from a jail or prison term, the 

more budget resources must be committed to security 

screening and supervision. 

Day Reporting Centers. These are highly structured 

programs run by public or private agencies. The first program was established in this country in 1986, but they have 

been used in England since 1974. Cook County (Chicago) 

and New York City have programs for probationers, and 

Boston has a program for parolees. The programs focus 

thc offenders on structured activities, including community service, education, drug treatment, and employment 

counseling. By using the community-based services of other agencies, ties can be established for continuing participation after the court-ordcred sentence is completed. 

Such centers offcr much the sameprogrammingas that offered in residential facilities, at much less cost. However, 

to realize this saving, public officials need to ensure that 

the centers are located where they can be reached by offenders living in the community. 

Home Confinement.This may be simply a curfew, or it 

may limit outside activities to job, school, and/or treatment, or it may be strict home incarceration at all times 

with very limited exceptions. Jail overcrowding makes 

home confinement preferable to weekend sentences, 

which affect the jail when the number of new arrestees 

coming in are the greatest. A stable home and good prospects of a job usually are required. Home confinement began 

as an alternative for first-time property offenders and serious 

traffic violators. The nature of the increase in drug arrests in 

many communities, however, has made this an increasingly 

logical approach because of the higher numbers of jail inmates who are employed (about two-thirds in 1989, com- pared to only slightly more than half in 1983). Los Angeles 

County established a pilot project for jail inmates with severe 

medical problems. It is also being tried for target groups, 

such as drug pushers or gang members suspected of violent 

activity, to try to deter such activity as well as to expedite 

their removal from the community by detecting renewed 

criminal activity early. The more it is used for offenders without community stability, the more it requires effective monitoring and budget support for low supervisory caseloads. 

70 U.S. Advisory Commission on Intergovernmental Relations 
Electronic Monitoring. At end of the 1980s, electronic 

monitoring was still new enough that it was more talked 

about than used. An NU survey found that 6,490 offenders 

were being monitored electronically on any given day in 

1989, compared to 2,277 in 1988 and 95 in 1986. The annual 

number of persons placed under monitoring supervision is 

estimated to be four or five times these figures. In 1987, 

the typical person on electronic monitoring was a male 

convicted of driving under the influence of alcohol. By 

1989, the typical offender was a burglar. Drug offenders 

were more common (22%) in 1989 than major traffic offenders (18.9%).45 Not all systems are free of technological 

problems, such as electrical interference from household 

appliances, but it is now possible to benefit from the operational experience of the pioneering departments. 

Electronic monitoring is an extension of home confinement. Both programs provide a continuum between 

the normal levels of minimal probation supervision and incarceration. Rather than being incarcerated, a probationer or parolee who has violated the conditions under normal supervision would be placed undcr these added 

restrictions and increased surveillance. Electronic monitoring is usually used for a relatively brief period of transition, to indicate the offender's suitability for less closely 

monitored release or the need for incarceration. 

Intensive Supervision Programs (ISP). There were 

more than 25,000 felons under intensive supervision nationwide, or about 2.7 percent of all probationers. ISPs began in the early 1980s and were instituted in 40 states by 

1987.& Caseloads range from nine per officer in Connecticut to 40 in Texas and Washington State.471SPs are typically designed as an alternative to prison, not just a reordering of probation case management. For example, New 

Jersey prohibits judges from sentencing offenders directly 

to ISP; instead, sentenced felons who have been imprisoned for 30 but not more than 60 days are screened bycorrectional authorities for participation. Officials believe 

that during this period the offender will have experienced 

whatever deterrence effect prison might have?" 

Despite reduced caseloads requiring over five times as 

many probation officers on the average, Georgia estimates a 

savings of nearly $7,000 for each case diverted from prison, 

an Illinois evaluation showed a 58 percent savings over imprisonment, and New Jersey estimates a savings of nearly 

$17,000.49 Programs may require offenders to have a community sponsor, obey a curfew, be tested for drug use, attend 

substance abuse treatment, be employed, pay all restitution 

and fines, perform community service, and not have a violent 

criminal history. Officer contacts range from at least twice a 

week to daily, particularly under a team approach that uses 

lower paid personnel to do surveillance. 

Nonviolent offenders who are employed would have a 

low tendency to recidivate under any sanction. Nevertheless, an evaluation of the New Jersey ISP program showed 

that recidivism was cut in half over a matched group, with 

approximately 8 percent rearrested for new crimes and 19 

percent recommitted for technical violations?' Comparison studies in Cook County, however, showed no diffcrence in rearrest, but the offenses were less scrious. Evaluation of the Georgia program reported an 80-90 percent 

success rate, but an earlier analysis had shown that 40 percent of the offenders sentenced by judges to the program 

probably would not have been incar~erated.~~ 

General government officials need to be alert in evaluating ISP programs. Because of their wide range, there 

needs to be clear articulation of what a particular ISP is 

structured to do and how its participants are selected before 

its success can be measured. If an ISP's main focus is on surveillance rather than treatment, then it should not be surprising if participants are found to be in violation of their 

conditions of probation or parole more often than offenders 

who are not watched so closely. In that case, officials should 

expect a clear definition of what class of offenders represent 

the greatest justification for higher levels of detection. 

Cooperative Surveillance. As discussed in Chapter 4 

under differing missions, some officials feel that the criminal justice system is not responsive in handling probation 

or parole violations. Police officers seldom are involved in 

enforcement. The ASAP program in Los Angeles County 

is a new intensive probation approach for high-risk felons 

with histories of drug involvement. It includes close cooperation between law enforcement, prosecutor, courts, and 

probation officials to expedite notification and handling of 

probation violations. A case list identifying program participants is distributed monthly to law enforcement and 

criminal justice agencies throughout the county, and a 

central telephone number is provided for their use. Probation officer caseloads will be only 35:1.52 

Halfway Houses. These 24-hour residential facilities 

are somewhat less costly than a jail because they are not 

based on maintaining a secure perimeter. They may be 

used for a variety of programs, none of which would typically be mixed in the same facility. Unfortunately, there 

are numerous examples of elected officials becoming embroiled in siting battles no matter what type of offender is 

to be housed in the facility. 

At one end of the scale, the heavy impact of mandatoq 

sentences for drunk driving has led to separate facilities 

being established for DUI offenders to relieve jail overcrowding. Work release programs also may be run out of a 

separate facility to keep returning prisoners from being 

pressured to bring in contraband. Many sheriffs and jail 

administrators also would include residential community 

mental health facilities that are needed for the mentally ill 

who have gotten caught up in the criminal justice system. 

At the other end of the scale, state prisoners who are 

about to be paroled may be both tested and guided in a 

halfway house for their readiness to reenter their home 

community. Of the 33 state correctional agencies that report housing inmates in such prerelease centers, 13 operated centers themselves and 29 had contracts with private 

agencies.53 Another notable model is Delancey Street, 

which started in San Francisco and has launched programs 

in three other states. This program is a voluntary, self-help 

group living arrangement of ex-prison inmates that receives no public funds. Inmates must make a written request to enter the program.54 

U.S. Advisory Commission on Intergovernmental Relations 71 
Drug and Alcohol Treatment. Participation in trcatment for substance abuse may be a condition of probation 

or parole imposed in conjunction with any of the programs 

discussed. Typically, it means weekly therapy sessions, but 

also may include detoxification and a lengthy residential 

stay. Less than 25 percent of the probationers participate 

in substance abuse programs, according to the National 

Association of Criminal Justice Planners, although almost 

all probation agencies include treatment programs.55 

Many of the governmental concernsabout drug trcatment will be discussed in the next chapter. Therefore, for 

an overview of different criminal justice approaches, this 

summary simply will use a list of demonstration projects 

funded under the federal Office of Treatment Improvement of the Alcohol, Drug Abuse and Mental Health Administration (ADAMHA). Renewed federal funding in 

this area is a recent development. ADAMHA began by budgeting $8 million for criminal justice programs in FY 1990, 

and $16 million was budgeted for FY lWl.56 Therefore, this 

listing is not meant to highlight the federal role in encouraging these efforts, anymore than it is intended to highlight the 

efforts that states and localities have been making. 

Ten projects were funded by ADAMHA in FY 1990 

for nonincarcerated population^.^^ 

Diversion programs included: 

A three-agency team approach to divert 300 nonviolent youthful offenders in Orange County, 

Florida, that includes health and human service 

needs, vocational counseling, and a job bank; 

A five-county joint project in the lhcson area to 

expand multi-modality treatment and aftercare 

for 275 persons, including short-term residential, 

outpatient day center, and aftercare; 

Compulsory pretrial treatment for 1,125 TASC 

offenders in Birmingham under the Alabama 

Mandatory Treatment Act of 1990, with a 

six-month to one-year range of treatment options, including methadone maintenance: and 

rn A behavior modification modcl in Rock County 

(Beloit), Wisconsin, for 90-100 youthful offenders. 

High-risk probation and parole programs included: 

m A one-year aftercare and follow-up program for 300 

District of Columbia felons, managed jointly by 

probation, treatment, and social services agcncies 

An Oregon Department of Corrections program 

of six to nine months for 210 parolees; 

rn The South Carolina Department of Corrections 

Stay’n Straight 90-day treatment cycle that includes interagency case management for a variety 

of services including employment; and 

A Sonoma County, California, cooperative effort 

of the court, probation, prosecutor, and TASC to 

expand a drug alternatives center, incorporating 

expedited case management and mandatory 

trcatmcnt, and multimodal treatment options, 

including prenatal services. 

Juvenile programs included: 

The New Jersey Youth Services expansion of 

community-based services (medical, mental 

health, and family support) at four juvenile centers, 83 residential and 23 outpatient slots, and a 

six-month phased, guided group interaction (psy- chotherapy); and 

The Colorado Division of Youth Services expansion of treatment options by coordinating screening and assessment through joint training of personnel from juvenile court, juvenile corrections 

services, and eight community treatment agencies. 

This list represents a sampling of the growing number 

of initiatives in community-based substance abuse treatment for offenders. Most share the governmental challenges that will be discussed in Chapter 4 to establish a 

multi-needs approach, a long-term phased program, and 

interagency cooperation. 

Programming to Reduce Jail and Prison Stays 

The following overview of jail and prison program- ming is included with alternatives to incarceration under 

the assumption that if the time is used more productively, 

inmates are ready to come out sooner and stay out longer, 

and the public is more satisfied to see them released. If 

participation in these programs does not lead to shortened 

sentences and lower recidivism, then the public budget 

impact will be harder to justify. 

Jail Programs 

The two greatest challenges in running jail programs 

are the extreme mix of individuals housed in a jail at any 

given time and the short stay of most of them. With the 

exception of drug arrests making the average population 

slightly older, more educated, more apt to be employed, 

and more apt to be a female, the typical jail population can 

still be described in terms used in ACIR’s 1984 report: 

The jail-the “social agency” of last resort-is 

saddled with a mixture of one-time delinquents, 

small-time losers, violent criminals, and social 

misfits. It is an amalgamation that would throw 

even the most capable manager of human affairs 

into a virtual frenzy. Specifically, at any given 

time the local jail may house pretrial defendants 

alongside convicted offenders; . . . simple misdemeanants alongside state felons; the mentally ill, 

retarded, and intoxicated alongside presumably 

rational malefactor^.^^ 

The contemporary reaction of many sheriffs and jail 

administrators to this description would be, “Only more 

so.” In addition to the demographic changes resulting 

from drug arrests, during the 198Os, jails saw more mentally ill arrestees because of changes in the treatment and 

confinement policies of mental institutions, more sex of72 U.S. Advisory Commission on Intergovernmental Reiati .jons 
fenders because of increased awareness and reporting,sg 

and a greater proportion of the population charged with 

serious crimes because efforts to deal with overcrowding 

have diverted minor offenders.@’ 

Classification. Once again, accurate information on 

the offenders is crucial. The earlier it is obtained, the 

more readily subgroups of offenders can be separated out 

and be allowed into programs without extraordinary security provisions. 

Space. As a jail becomes more and more overcrowded, lack of space may make use of classification information moot because there is no space available to separate out groups of prisoners. Space often becomes the 

first requirement for any program. 

Separate Jail and Detention Facilities. Some communities have separate facilities for those inmates awaiting 

trial and those who have been sentenced to serve time in 

jail. This allows the jail staff to work more effectively with 

the sentenced inmates in structured programs over a longer period of time. As a result of jail overcrowding, more 

communities may have to wait to establish such a separation until new space is constructed. 

Unfortunately, the detention facility for those awaiting trial is typically established in the old facility because it 

is next to the courthouse. It is also in the heart of community services that should be part of treatment. Too often, 

neighborhood opposition to siting new facilities means that 

they will be removed as far as possible from work-relcase 

job accessibility and community-based adult education or 

substance abuse treatment. Thus, the least serious among 

incarcerated offenders, for whom there is the greatest 

chance of benefit from treatment programs, often may be 

the farthest removed from the community resources. 

Education. More than half of the jail population in a 

1989 BJS survey had failed to complete high school. According to another survey, approximately 90 percent of the 

large jails offer basic education programs, 64 percent conduct educational diagnostics, and 61 percent use literacy 

volunteers.61 There is a crucial interagency need to establish a strong collaborative effort between the jail and the 

public school adult education program, so that offenders 

who start to make progress during the short time they are 

in jail will be guided directly into the most accessible adult 

education program on release. 

Substance Abuse Treatment. Approximately 87 percent of the jails with populations of over 200 report that 

they offer drug treatment referral services; 81 percent offer drug education; 76 percent, drug counseling; and 57 

percent, detoxification.62 Most of these programs are able 

to focus only on addiction recognition; they are not treatment programs. It is encouraging, thcrcfore, that the 

demonstration projects funded under the federal Office 

of Treatment Improvement of ADAMHA in FY 1990 

have a strong treatment component.63 They include: 

King County (Seattle) jail’s 21-day intensive 

treatment program for misdemeanants and fclH 

ons at two sites, a less intensive five-week program, and a ten-week aftercare program at the 

work-release site; 

Cook County (Chicago) jail’s comprehensive 

medical, psychiatric, and addiction services for 

420 inmatesperyear, through a consortium of the 

sheriff, health services, the treatment agency and 

TASC; and 

Montgomery County, Maryland, jail’s institutional treatment of 24 inmates every five weeks with 

six months of aftercare. 

As with education programs, collaboration with community-based programs is crucial. As will be discussed in 

the next chapter, participation in drug treatment for less 

than three months is ineffective. Long-term positive results require at least six months. Compatibility of treatment approaches may also be important. 

Employment. Providing meaningful work for jail inmates is complicated by two sets of governmental restrictions. The first restriction stems from federal and state 

protective laws that limit the sale of goods produced by inmates. This intergovernmental issue will be taken up under the section on prison industries. The second restriction 

affects only some jails. In these communities, the sheriff 

must get court approval to assign inmates to work release. 

This places great constraints on the ability of correctional administrators to respond to inmate behavior and move offenders in and out of programs as warranted. 

Different approaches are taken in communities 

where correctional authorities are not constrained by the 

court in administering work programs. For example, probation officers may be used for workplace oversight, while 

the sheriff maintains custody. Los Angeles County has 

contracted out a 200-bed work release program to a private firm. In Minnehaha County (Sioux Falls), half the 

population in the over 100-person jail is on work release 

because the sheriff works with employers to keep inmates 

in their existing jobs.64 

Because a jail is located in the community, the potential for getting offenders into permanent jobs is far higher 

than employment placement for inmates housed in a state 

prison system. Nevertheless, only 56 percent of the large 

jails surveyed assist inmates with job pla~ernent.~~ During the 

building boom that occurred in many communities in the late 

1980s, private sector interest began to develop in establishing 

apprentice programs. Some employers came to realize that 

their difficulty in finding workers for basic construction and 

food service jobs was exacehated by the numbers incarcerated. Regional economic downturns may put such publicprivate partnerships on hold. 

Elected officials in and out of the criminal justice system can play a significant role in fostering the private sector’s interest. General government officials often have 

wider and deeper ties with business, while criminal justice 

officials may be able to speak with greater credibility about 

getting offenders into jobs. The ultimate success of any hitiative w1I1 depend on criminal justice personnel being committed to carrying out the expectations of the employer. 

H 

U.S. Advisory Commission on Intergovernmental Relations 73 
Prison Programs 

The challenge of providing programming for prison 

inmates was underscored recently by the director of the 

federal Bureau of Prisons: 

We have a significant portion of inmates who 

are aggressive or assaultive, who have never held 

a steady job, who dropped out of school and got 

into trouble in their neighborhoods, who were 

abused or abusive in their families, who developed at an early age an orientation toward immediate gratification-with no appreciation of the 

benefits of family and community. The frustration is that society expects us to rehabilitate them, 

without any understanding of the dilemmas and 

complexity and the difficulty of doing so. While 

we clearly provide prisoners with opportunities 

for bettering themselves, their own self-motivation is the keystone of “rehabilitation.”M 

Classification. As at all other points in the criminal 

justice system, accurate information on the inmate is CNcial. Ideally, collaborative efforts should give prison officials confidence in the criminal, community, and family 

history information gathered for pretrial release, jail classification, and sentencing, so that prison intake can concentrate on educational, medical, and various types of psychological testing. 

Limited resources also make classification more important in order to concentrate programs on inmates for 

whom they can do the most good. Citizens participating in 

the national focus groups sponsored by the Edna McConnell Clarke Foundation felt that efforts should be concentrated on those who are likely to be released, are intelligent enough to benefit from job training or education, 

and, most important, are sufficiently motivated to do the 

hard work necessary for rehabilitation. If resources are 

scarce, the young and first offenders should be targeted 

These priorities parallel the priorities of most prison administrators, although they must be applied differently in different programs. 

Consequences. Regular reclassification can help 

many prison systems move inmates through a range of 

sanctions and privileges, depending on their response. 

Unfortunately, lack of physical capacity due to overcrowding and personnel constraints make carrying out this goal 

within the prison system problematic. However, where 

moving inmates through a continuum has been carried 

out, the results are reported as cost-beneficial. 

For example, Delaware’s Sentencing Accountability 

Commission was established by legislative act with the 

“expressed purpose of devising a workable program to 

gain control of prison population problems.”M The 

five-level continuum of restrictiveness and cost control 

that was established allows “offenders to earn their way 

out of prison by good behavior and conformity with the 

rules, or to work their way further into the system by repeated non-conformity or additional offenses.”@ Officials 

believe this emphasis has resulted in Delaware exhibiting 

a consistent slowing in prison growth over the last five 

years. In fact, in 1988 and 1989, the prison population in 

Delaware increased by 5.8 percent, in comparison to increases within its region of 15.8 percent in Maryland, 22.4 

percent in Virginia, 22.3 percent in New Jersey, and 31.6 

percent in Pennsyl~ania.’~ 

The Bureau of Prisons also operates on a continuum 

of punishment and was described recently as “generally a 

fairly decent system” by Al Bronstein, director of the 

American Civil Liberties Union National Prison Project, 

which has brought or backed most of the major state prison litigation.” Nevertheless, the federal continuum includes Marion, the “super-maximum security” facility and 

successor to Alcatraz, as theultimate punishment. Marion 

operates on permanent “lockdown” and, in 1987, became 

the first U.S. prison to be criticized by Amnesty International. Its per-inmate costs are more than twice the average for all other federal inmates. Nonetheless, prison officials believe that gang violence and assaults in federal 

institutions are down in large part because inmates fear 

they will be shipped to Marion.72 Some statesare adopting 

the federal model as a means to provide structure and a 

safer environment for those inmates who will exert the effort to benefit from programs. 

Work Programs. Less than 10 percent of prison inmates are not involved in a work a~signment.~~ Thevast 

majority of these, however, are involved in basic duties, 

such as cleaning and food service, in addition to special duties, such as clerical. The goal of this type of work is much 

more maintaining security than it is job training. “When 

you get inmate idleness, you get discontent, and that 

breeds rebelliou~ness,”~~ according to Patrick Whalen, 

chief warden at the 1,100-man Petersburg Federal Correctional Institution. This is an even greater concern in 

managing the high percentage of state prison inmates 

who have violent criminal histories. However, basic 

tasks can instill discipline and carry-through that canbe 

used as a basis for moving selected inmates to more 

meaningful work activities. 

There are four types of programs for teaching inmates 

more advanced job skills: prison services, vocational training, prison industries, and work release. Prison services, 

such as farming and construction, can represent signifi 

cant fiscal savings. General government officials ofter 

make budget decisions based on this goal. 

Unfortunately, budgetary goals are not always compatible with imparting relevant job skills. General government officials may have to set priorities as to the desired 

outcome of inmate labor: relevant training or cost savings 

For example, the prison system in Virginia raises and pro 

cesses the bulk of the meat and dairy products used by the 

system, but there are few job opportunities on releaseG 

Even the decision to use inmates for prison construction 

projects, which involve job skills for which there is a job 

market in that rapidly urbanizing state, required 

era1 government elected officials understand th 

balance conflicting goals. A budgetary goal that 

getting a facility on-line as rapidly as poss 

that the use of inmates who already have 

perience would take precedence over te 

inmates. Looking for expediency in inm 

74 U.S. Advisory Commission on Intergovernmental Relations 
projects also would conflict with the goal of concentrating 

training on those who will be released in the near term. 

Carrying out this goal means that when the inmate is 

skilled enough to be of real value on a prison construction 

site, he should be ready for release (see Figure 3-6). 

The second type of prison work program, vocational 

training, uses skilled instructors and frequently involves 

structured classroom discipline in a wide variety of fields, 

such as electronics, mechanical engineering, sewerage 

plant operation, or cosmetology. Instruction is conducted 

in the way same as it would be for civilians because prison- ers ultimately will sit for the same licensure exams. Most 

systems are able to provide only a small number of slots in 

such classes. For example, the two-year master technician’s course at the federal prison in Lewisburg, Pennsyl- vania, teaches 30 students at a time and always has a wait- ing list in the 1,450-man prison.75 Setting priorities for who 

will participate again involves conflicting goals. Inmates 

serving time on major drug distribution charges, murder, 

or armed robbery tend to be better educated than those 

doing time for burglary. This means some of the most motivated inmates will be furthest from release. 

The third type of work program is prison industries. 

Most state prison systems have only 10 to 15 percent of 

their inmates involved in prison indu~trics,~~ whereas the 

federal program, Unicor, reports a participation rate of 25 

to 30 percent.77 Almost all of these programsare limited to 

providing products used by governmental agencies. Typi- cal examples include license plates, printed material, fur- niture, and uniforms. Some systems have expanded into 

such areas as Air Force jet-fighter wiring, reservations, 

and horticulture. However, the more aggressive the pris- on system is in developing products or services that are 

relevant to the needs of government agencies and can 

compete in the award of a competitive bid, the more traditional arguments against unfair competition have resur- faced from labor and small businesses. 

For example, in the last half of the 198Os, in meeting 

the need to provide jobs for the rising federal prison popu- 

&UE 3-6 

Conflicting Missions of Work Programs 

Keeping all inmates busy working at anything 

for security and as punishment 

VERSUS 

Concentrating resources to develop job skills 

and meet the education and substance abuse 

therapy needs of those near releasc; 

Running farm, construction, 

and industry activities to maximize output 

VERSUS 

Training unskilled inmates; 

Eliminating all potential security risks 

while the inmate is legally under penal control 

VERSUS 

Staged release through less costly 

reduced custody and community based 

work programs and halfway houses 

lation, Unicor diversified and increased its sales from $240 

million to $360 million. This led to proposed legislation in 

the 1990 session of Congress to sharply restrict Unicor’s 

sales of furniture, textiles, apparel, and footwear. Union 

lobbyists were quoted as saying, “Enough is enough. . . . There’s no reason [Unicor] should be taking over all of the 

federal office [furniture] market oral1 of the federal drapery market.”78 It took the active involvement of former 

Chief Justice Warren Burger to kill restrictive language in 

conference committee and establish a study to serve as the 

basis of negotiations and future compromise. 

At the Same time, a California proposition allowing 

inmates to be employed by private businesses passed in 

November 1990 by more than 53 percent of the vote. As in 

most states, California’s constitution had prohibited contracting with a private agency for the use of state prison or 

local jail inmate labor. In addition, if inmates produce a 

product, the product could be sold only to state and local 

governments. The ballot measure removed these restrictions. The ballot question stipulated inmate wages comparable to non-inmate wages for similar work, up to 80 percent of which may be deducted for federal, state, and local 

taxes; room and board; restitution; and support of the inmate’s family. Employers would be provided a 10 percent 

tax credit for wages paid inmates, but they are prohibited 

from using inmates during strikes or lockouts. 

Although organized labor opposed the referendum, 

California’s initiative answered the main concern of small 

businesses about jail and prison industries. Business 

would no longer be competing with prisons and jails for 

government work; instead, they could bid competitively to 

run the inmate shop as anotherbranch of their own factory 

or business services, such as the processing of airline reservations. This would bring current expertise into the prisons to set up more efficient operations and give inmates a 

more relevant job experience. In addition, if the restriction that limits sales to government agencies is ended, 

competitive bidding to handle the marketing of inmate-produced goods for a percentage of the profit could 

greatly expand the sales of these goods and increase prison 

and jail operating revenues as well as the number of inmates who work. Even without removing the current restrictions on sales, local governments and state universities represent a potential for greatly expanded sales that 

could be tapped by using private marketing experience. 

In 1984, ACIR recommended that state legislatures, 

after consultation with labor, business, and the communities involved, enact statutes authorizing contracts between private companies and correctional institutions, including jails, under which convicted inmates can produce, 

for sale in the open market, certain goodsand services that 

do not compete unfairly with the private sector. The Commission further recommended that states enact legislation 

authorizing the sale of such goods and services within their 

own borders.79 Progress under this recommendation has 

been slow. The federal restriction on interstate sales of inmate goods is a major stumbling block, not only because it 

limits markets but because most businesses sell theirproducts freely across state borders. Keeping inmate-produced 

goods out of this stream is a burden that few if any busi- nesses are willing to undertake. 

U.S. Advisory Commission on intergovernmental Relations 75 
Organized labor’s main concern about the expansion 

of prison and jail industries is loss of jobs. Even worse, this 

is seen as an unfair loss of jobs to the degree it is driven by 

low labor costs. Currently, inmate wages range from about 

20 cents per day to $2.00. This opens up an interesting di- chotomy with much of the public, which might question 

paying inmates at all. Elected officials need to be informed 

if they are to arbitrate this debate. Ib avoid escalating conflict, the following factors need to be clearly communicated: (1) the number of hours per day an inmate actually 

works because of time out for security procedures; (2) how 

turnover affects the productivity of new inmates; and (3) 

what the inmate receives after deductions for board and 

room and all legal obligations. 

The Private Sector/Prison Industry Enhancement 

(PIE) program, created by the Congress in 1984, addresses 

some of these issues in its regulations, which include re- quirements that: 

A portion of any inmate earnings must go toward supporting programs that provide aid to 

crime victims. 

Representatives of organized labor and private industry must be consulted when inmate 

work programs are established. 

Inmate workers must be paid wages commensurate with those in the private sector. 

State labor officials must certify that private-sector workers will not be displaced, or 

existing labor contracts infringed on. 

Inmates must participate voluntarily and 

must receive standard benefits (including 

workers’ compensation). 

Each program must incorporate a substantial 

role for the private sector.” 

m 

m 

In exchange for these restrictions, some of the federal restrictions on interstate commerce are removed. As of 1989, 

prison programs in 18 states and jail programs in two New 

Hampshire counties were certified under the PIE program. 

Work release is the fourth category of prison work programs. It represents the greatest level of security concerns. Although community service programs are a new 

wave for alternative sanctions, widespread use of prisoner 

crews creates the same security issues that led to the demise of most of the old prisoner road gangs. Taking a crew 

of 10-12 inmates off the prison grounds requires a 

full-time guard and transportation. The same guard within 

the prison would provide security for four or five times 

that number of prisoners. 

Individual work release programs usually operate out 

of halfway houses because of the need to separate the returning inmates from the general prison population to 

control contraband and because prisons usually are located far from job opportunities. The Salvation Army is 

the largest private provider of work-release space in Florida.6’ To get other employers to use prison labor, public officials must be willing to precisely spell out security procedures and liability for the actions of an individual who has 

not been released from state custody. 

Education. Only about 25 percent of state prison inmates are involved in full-time or part-time academic or 

vocational education programs.** Several states recently 

enacted legislation to increase this participation. In 1986, 

Virginia enacted a program-dubbed “No Read-No Re1ease”by the press- targeted at basic literacy. While it was 

acknowledged that parole could not be denied to someone 

who is unable to read, it also was made clear that an inmate who was identified as reading below the 8th grade 

level and who physically could but refused to participate in 

the prison’s literacy program would not be regarded as 

having made a satisfactory adjustment necessary for parole. The Colorado program awards good time to encourage inmates to participate. The federal system consigns inmates to the lowest paying prison jobs and/or disciplinary 

action if they refuse to participate. Effective in 1991, federal prisons raised their requirements to a 12th grade 

reading level and attainment of GED. 

Legislation was introduced in the 1991 Congress mandating that states and local governments establish literacy 

programs within five years in all correctional facilities that 

have more than 150 inmates. Because no federal funding 

was included in the legislation that passed the House, the 

National Conference of State Legislatures (NCSL) opposed the legislation because it is a new, unfunded federal 

mandate.s3 NCSL reports that about 20 states now have 

prison literacy programs. 

In opposing the legislation, NCSL also emphasized 

the difficulty in finding teachers who are adequately 

trained in adult literacy problems and willing to teach in a 

prison. Teachers also must be able to deal with a high percentage of inmates who have congenital learning difficulties or who have short attention spans because they have 

or have had alcohol or drug pr0blems.8~ Some states, such 

as Texas in its Reading to Reduce Recidivism (3R) program, are using computer-assisted techniques to meet the 

need for adult illiterates to be guided step by step in the 

learning process. Prison systems also make use of other inmates and citizen volunteers as tutors. 

Substance Abuse Programs. The Vera Institute of 

Justice recently described state prison substance abuse 

programs as “relatively unstructured, inmate- or volunteer-run programs that are ubiquitous in state prison sys- tem~.”*~ NIJ recently confirmed that few true treatment 

programs exist within prisons.86 

However, two of the most aggressive programs are 

New York State’s Stay” Out program and Oregon’s Cornerstone program. Stay” Out began in 1977. Participants 

are separated from other inmates, and the program is 

based on the assumption that addicts have deeply flawed 

personalities that must be challenged. More than 77 per. 

cent of the men who remained in the program for at leasl 

nine months were not rearrested in a three-year follow-up, while only 50 percent of a control group performed as well. New York’s Stay” Out program add! 

about 10 percent to the normal cost of prison and has nol 

been expanded beyond its 200 beds, despite a 200-pema 

waiting list.67 Oregon’s 32-bed Cornerstone program, be76 U.S. Advisory Commission on Intergovernmental Relations 
gun in 1976, is designed for serious offenders who are addicted to drugs. Additional beds recently have been added 

at a new facility, and federal grants are assisting in establishing a continuum of substance abuse carc in Oregon’s 

prison system.sa 

As with other alternative-sanction drug programs, 

ADAMHA federal demonstration grants also have been 

given to state prison programs such as: 

Conversion of a new Alabama prison into a 

600-bed “treatment prison”; 

Treatment units using cognitive learning theory 

in four Connecticut institutions: 

rn 

rn 

rn A highly structured, segregated treatment unit in 

the North Dakota state penitentiary; and 

A three-phase, six-month, 303-bed therapeutic 

community, including a mother/infant nursery unit, 

in the Xtconic women’s institution in New York. 

Although most experts stress that inmates involved in 

bstance abuse treatment must be completely separated 

3m the rest of the prison population, it is possible to esrablish an intensive prison treatment program on a 

cost-effective basis because the cost of housing is being 

paid. By starting treatment in prison, the offender need 

only participate in outpatient treatment on release. Generally, these types of treatment slots are available in the 

community, whereas inpatient slots rarely are. 

Determining priorities for who will receive the limited treatment slots in any correctional program is murky. 

It is seldom based on who may have the most serious addiction history but on the individual’s willingness to participate in a program while incarcerated. The Vera Institute 

noted little evidence of screening of inmates and therefore of paroleesfor limited treatment slots. “Parole conditions mandating attendance at a drug treatment program 

(a very scarce resource in new York City) are given to 32 

percent of the inmates who did not exhibit a severe and 

recent drug history, while they were not given to 44 percent of those who did have such a history.”89 

Even if the prison substance program is only a self-help 

group, continued participation on release is crucial. A 

no-cost volunteer program that may help encourage such 

continued participation is a New York State initiative to encourage members of local Alcoholics Anonymous and Narcotics Anonymous groups to contact inmates who have requested sponsors in their home community before they are 

released?O Finally, officials could find that using former felons who have an established record of recovery as public employees in treatment programs is actually a cost-saving approach. The savings comes in breaking the chain of 

recidivism that is more apt to occur when the former offcnder is not employed. (As in the AA model, focusing on other 

addicts and ex-offenders helps the person in the counselor’s 

position with their own lifelong recovey?’) 

Boot Camps. Prison boot camps were first initiated in 

Georgia and Oklahoma in 1983. By 1987, only five states 

were using them, but by 1990, 14 states had boot-camps 

and 12 states were actively considering them. ‘Their use is 

expanding so rapidly, in part, because unlike many other intermediate sanctions, the obvious punitive features of these 

programs make them immediately popular with policymakers and readily acceptable to the public.’s* 

NU research on boot camps, sometimes referred to as 

shock incarceration, has found no evidence that they significantly affect offender behavior or reduce recidivism. 

The deputy director of NU observed, “Previous shock incarceration research has provided more questions than 

 answer^.'^^ Boot camp recidivism rates are approximately 

the same as those of comparison groups who serve a longer period of time in a traditional prison or who serve time 

on probation. Therefore, in the first instance, for those 

who would serve time in a traditional prison, cost savings 

can be realized by the shorter length of stay of those who 

do not recidivate. 

In the second instance, however, if the recidivism rate 

is the same for those who serve time on probation, boot 

camps represent a very significant extra cost. Unfortunately, most boot-camp programs are vulnerable to such a 

net widening effect because state legislation often has limited participation to nonviolent first offenders, and because seven out of the first ll programs used judge sentencing. To avoid the costs associated with net widening, 

NU’S initial study recommended that the decision to put offenders in a boot camp not be made by a judge but by prison 

officials from among the existing prison pop~lation.9~ 

It has been observed that it is not just the discipline of 

military boot camps that has produced lifelong successes, 

but also the support of the G.I. bill in education, home 

ownership, and job preferences and at least two years of 

active military duty in an environment of constructive camaraderie. The New York State program has the heaviest 

emphasis on education, drug treatment, job training, and 

intensive parole supervision. Nevertheless, New York’s 

DOC commissioner reported to the House Subcommittee 

on Criminal Justice in September 1989 that those who 

complete the program return to prison at the same rate as 

do inmates who were eligible but chose not to participate 

and, therefore, spent an average of 14 months in pris0n.9~ 

Elected officials have been more active in establishing 

boot camps than any other prison program. At this point, it 

would appear that, if net widening can be controlled, these 

policymakers can declare the program a success as far as 

cost savings because it seems to prove that shorter sentences are as effective as longer sentences. However, most 

elected officials are at least equally interested in boot 

camps being a success in reducing recidivism, and there is 

no indication that they do so. 

Mental Health. In a 1989 survey of all state prison sys- tems, 42 reported that they had inmates in mental health 

programs and 39 reported that they had inmates in sex offender As with prison substance abuse programs, however, most of these programs are self-help, 

problem identification, group therapy sessions. They are 

not treatment programs. 

A new focus for prison mental health programs is sex 

offenders. The public’s focus on sex crimes has been relatively recent. For example, Vermont’s sex offender popuU.S. Advisory Commission on Intergovernmental Relations 77 
lation went from 10 percent of its prison population in 

1982 to triple that number four years later?' Therefore, 

most programs are also new. In 1990, Orcgon proposed a 

two-component rclapse prevention treatment program 

for 32 sex offenders and a domestic violence program providing services to 50 offenders per year in a local nonprofit 

center. The Oregon criminal justice system also uses a private nonprofit group-Restitution, Treatment and Training, 1nc.-to provide treatment services to sex offenders 

convicted of incest. This company claims that less than 10 

percent of those individuals who have been in the program in 

the past have been convicted of the same crime after trcatmerit?* The Hennepin County (Minneapolis) Alpha Center 

uses 15 residential beds, as well as outpatient and day treatment for adult males convicted of felony sex offenses.w 

Because many sex offenders and domcstic violence 

offenders were abused as children, officials also need to 

look at the fact that over 70 percent of incarcerated adult 

females nationwide are mothers with depcndent childrcn. 

Prior to incarceration, the majority of these women had 

legal custody of these children.'OO 

Prison mental health services have a long history, 

which seldom has been marked by profcssional services 

for the inevitable number of individuals among any group 

of people who will suffer depression, suicidal tendencies, 

or other clinical disorders. As public agencies, prison systems not only pay lower wages than mental health professionals can earn in the private sector, but the clicntcle is 

much more difficult to work with and the institutional setting is likely to be isolated. General government officials 

may find that they have to give firm direction in deciding 

whether the state mental health agency is to serve the 

prison population or a separate professional capability 

should be established within the DOC. 

Summary 

There are numerous program options to reduce the 

use of prison and jail space. They depend, however, on policies set by general government elected officials to foster 

private and general government agency efforts; to accept 

programs in the community; and to fund the staffing and 

support necessary to achieve security, classification, and 

treatment goals. 

Effective pretrial programs stress scrcening instruments, which can move as many arrestees who can be safely released out of jail or detention space as rapidly as possible, and nonmonctary mcans to assure appearance before 

the court for all offenders. Diversion from prosccution 

through participation in treatment or meeting other conditions has increased in the war on drugs. 

Sentencing convicted offenders to probation rather 

than jail or prison can bc strcngthencd by a range of options, such as community service; restitution; day fines 

commensurate with ability to pay; participation in substance abuse, job training, and GED programs; increascd 

contact with a probation officer that may involve electronic monitoring; and day or weekend stays in reduced sccurity facilities. Most of these options also can be used for parolees, although security concerns may be greatcr because 

usually the fact that the court has ordered prison time connotesa more serious offender. Because they are located in 

the community, effective probation and parole programs 

need positive local general government involvement. 

The length of time an offender spends in jail or prison 

and the likelihood of returning are addressed by programs 

such as prison/jail industries, education, mental health 

and substance abuse services, and pre-release counseling. 

As with all options, good classification to identify those 

who can benefit the most without creating unanticipated 

security risks is crucial to the success of the program and 

achieving the most cost-beneficial use of resources. 

The programs cataloged in this section exemplify the 

energy and drive present in our federalist system of criminal justice. Within each state and its localities, there are 

program managers and criminal justice officials with the 

professional expertise and commitment to shape more 

productive options to overuse of imprisonment. There also 

are general government officials willing to encourage and 

support the development of more effective correctional programs and a smoother running criminal justice system, so 

that volume does not overwhelm correctional goals. The 

most successful instances of the criminal justice programs in 

this section have occurred through a partnership between 

the professional commitment and accountability of those 

who run the programs and the informed and realistic oversight and support of general government elected officials. 

STATE VARIATIONS IN USE 

OF COMMUNITY OP7'IONS 

Under our federalist system, the criminal justice sys- tem in each state is unique. While this represents differences in constitutional and institutional structures, it also 

rcpresents differences in philosophy. This section explores two aspects of the differences among states: Community Corrections Acts and the tendency to incarcerate. 

This discussion is intended to give state and local 

policymakers additional context for considering changes 

in their jurisdiction's response to crime. 

Community Corrections Acts 

There has bcen no single model for a Community 

Corrections Act (CCA), although in 1992 the American 

Bar Association (ABA) adopted model legislation. The 

concept generally refers to comprehensive legislation that 

involves state funding designed to encourage and support 

localities in providing community programs that will serve 

as an alternative to incarceration. 

At least 18 states adopted Community Corrections 

Acts between 1973 and 1991: 

1973-74 Minnesota, Iowa, Colorado 

1977-81 Oregon, New Mexico, Indiana, Ohio, 

Connecticut, Virginia, and Texas 

1984 Tennessee 

1988-91 Arizona, Michigan, Pennsylvania, Alabama, and Floridalol 

78 U.S. Advisory Commission on Intergovernmental Relations 
States that enacted legislation in the beginning of this 

period did so primarily to establish a more integrated 

and expanded system of statc/local sentencing options. 

In contrast, several states that have enacted legislation 

recently have had the primary goal of reducing prison 

population growth. This has tended to raise local suspicions that the initiative is simply in the self-interest of 

state government.lo2 

In 16 of the 18 states, local participation is voluntary 

(only Iowa and Kansas require local participation).lo3 

CCAs are structured on the premise that if the locality 

wants state funding, it must accept accountability for the 

programs and meet state rcquirements. 

All CCAs require that the participating local governments prepare a community corrections plan. Typically, the plan must bcgin by analyzing the types of inmates who are incarcerated and how the local 

alternative programs in the plan will free space. The 

plans are approved annually by the state. In over half of 

the states, the review and approval are conducted by the 

department of corrections (DOC), although the ABA 

model act recommends that a separate state agency be 

created because “the objectives of a community correctionsprogram are broader, and in some instances different from those of other criminal justice dcpartments or 

agencies.”’04 The local board typically retains the power 

to veto any policy decision for its community, but it cannot expand programs beyond limits set by the state, for 

example, in regard to offense categories eligible for 

community sentencing, nor can it reduce requirements, 

for example, auditing halfway house security procedures. 

The composition of local boards stipulated in CCAs 

usually recognizes the importance of gaining judicial and 

prosecutor confidence if alternative programs are to be 

used, as well as of having the participation of general government officials if the programs come under attack or 

need additional budgetary support. Citizens and law enforcement officials also are included, so that the idea of 

nonprison punishment can become better understood 

and, therefore, better accepted in the community. The jail 

administrator and probation and parole officials would be 

included to provide opcrational guidance. The role of 

these local boards in criminal justice planning is discussed 

hther in Chapter 8. 

State funding can be controlled by a formula, which usually leaves maximum discretion in the hands of local authorities as to how the funds are disbursed within the approved 

plan. A formula approach connotes that the state is merely 

encouraging and supplementing local initiative. A per diem 

funding approach focuses on specific programs, and puts the 

state in a stronger role of directing the use of certain programs in every locality. It also can carry the connotation that 

these programs are, indeed, state programs. 

There is a variety of special funding provisions. For example, Minnesota provides that localities that do not feel 

they can operate a program can still participate by purchasing certain services from the state, with the cost being 

deducted from the formula payment due underthe act. Indiana penalizes counties financially if inmates are committed to the state system who would qualify forcommunity corrections programs. The ABA3 penalty provision 

addresses the criticism that county and city governments 

are hurt for decisions made by judges over whom they have 

no control by providing that “non-incarceration sanctions 

will be the presumptively appropriate sentence for offenders meeting the criteria.” Judges must state on the record 

why community options were rejected.’05 

There are no clear winners or losers financially in a 

Community Corrections Act approach-which may explain why only 18 states enacted a CCA between 1973 and 

1991. Although it is true that the amount of money that 

the counties receive for each retained offender is less than 

what the state would pay to house that offender in prison, 

savings to the taxpayer can disappear in two ways: net widening and use of jail. Net widening refers to a more expensive community option being used for an offender who, 

prior to the programs becoming available, would have 

been put on unsupervised probation or received a suspended 

sentence. Virginia estimates that only 70 percent of those in 

its Community Diversion Incentive program are true diversions.lo6 Furthermore, in localities that have the jail space, 

projected savings have been reduced when local incarceration has been the most used alternative, as it was reported to 

have been in Minnesota during the first seven years’ experience under its Community Corrections Act.lo7 

Strong guidance in reviewing the annual plans, which 

are required under Community Corrections Acts, can 

help reduce net widening and use of jail space. However, 

the National Conference of State Legislatures cautions 

that projected state savings may still be optimistic because 

“overcrowded facilities or idlated caseloads underestimate costs.” A state “would have to reduce prison populations dramatically to effect the fixed system costs,” and, in 

fact, if caseloads are reduced under the new initiatives, increased detection may increase costs.10S 

Local budgets also may not realize real savings because much of the initial financing of most acts does not 

represent new money. For example, in Michigan, state 

budget dollars that had been paid directly to community-based programs are now paid to local governments under the CCA. In discussing whether Tennessee should reorganize under a CCA, it was noted that “for community 

corrections act states, the services covered by the ‘state 

subsidies’ to local corrections are those that the state pays 

for in its own budget in most other states: chiefly felony 

probation and parole supervision services.”’09 

Consequently, the way CCAs are structured financially will vary significantly to reflect each state’s tradition 

of determining state and local responsibility. Hopefully, 

funding battles will not overshadow thebenefits ofproviding a greater range of correctional options in the community with accountable oversight. These are goals on which 

the National Association of Counties and the National 

Conference of State Legislatures agree. First, from the 

state legislative viewpoint: 

In part, the recent interest in community corrections reflects a growing recognition that a state 

and local partnership is needed to provide innovative program leadership and to share responsiU.S. Advisory Commission on Intergovernmental Relations 79 
bility and costs. For too long, the system has fostered the temptation for local governments and 

states to shift the responsibility and costs of corrections from one to the other. Community corrections attempts to balance costs and responsibilities. . . . [Clommunity-based alternatives can 

rightfully point to important dividends: restitution paid, community service completed, offender families kept intact and off public assistance, 

and training and education attained.”O 

From the county perspective: 

What’s in it for the counties? . . . The administration of the criminal justice system is a major county 

function. . . . Counties are the best equipped to 

assess local problems and resources. . . to provide 

better, more individualized offender services because they operate on a much smaller and less 

centralized level. . . . State overcrowding has 

caused a substantial back-up of state inmates in 

local jails. . . . Restitution programs are designed to 

force offenders to face what they have done, both to 

the victim and to the community [and] unemployment and substance abuse must be addressed. . . . The overwhelming majority of individuals incarcerated in state institutions eventually return to their 

original community.”’ 

State-by-State Comparisons 

The states vary considerably in their use of alternatives, 

and the reasons why one state may have more people 

locked-up than another are not always the same. It is important to identify such state or local variables in approaching 

any policy change. Gaining institutional and public acceptance may need to be approached differently, and the same 

program instituted in a different setting may have different 

results if contributing factors are not or cannot be altered. 

It has been common to compare states according to 

how many people are behind bars relative to state population. By this measure, usually assumed to measure “punitiveness,” the South has led the nation, followed by the 

West, the Midwest, and the Northeast: 

Penal Control/ 

Region 100,000 Population”* 

South 1496.4 

National Average 1247.0 

West 1204.0 

Midwest 966.8 

Northeast 957.8 

Actually, this traditional measure reflects criminal activity 

more than it reflects the public’s response to crime. 

A more accurate measure was first published by the 

National Council on Crime and Delinquency (NCCD) in 

1988 and began appearing in National Institute of Justice 

data in 1991. This statistic relates the number of persons 

incarcerated to the number of serious crimes reported. If 

all states were equally “punitive,” the ratio of the crime 

rate to the incarceration rate would be the same: the more 

crimes reported, the more people behind bars. Using this 

measure, we see that, although the South again is substantially more “punitive” than the rest of the nation, the West 

is shown to be the least “punitive” because its high rate of 

incarceration is being driven by high rates of crime: 

Penal Control/ 

Region Crime Rate113 

South .285 

National Average 240 

Midwest .208 

Northeast .201 

West ,188 

The high number incarcerated in the West relative to 

the rest of the nation is directly related to the West having the highest crime rate in the nation, not to tougher 

sentencing decisions: 

UCR crime Rate/ 

Region 100,000 Populationlt4 

West 6405.1 

South 5256.2 

National Average 5206.5 

Midwest 4657.3 

Northeast 4627.3 

Table 3-2 presents highlights of a 1991 report which 

found that the United States has the highest numberof 

people incarcerated per 100,OOOpopulation of anycountry in the world. This finding has focused increased interest on trying to extend such a comparison to other 

countries. How much of the United States’ high incarceration rate is due to increased crime? Given that what 

nations classify as a crime varies greatly, such an international comparison is extremely difficult. However, it 

has been reported that compared to western European 

countries, American murder rates are at least seven 

times as high, and there were six times as many robberies and three times as many rapes reported than in West 

Germany before reunificati~n.”~ 

Although factoring in the crime rate helps clarify the 

reason for a high incarceration rate, in order to focus on 

sentencing policies, it is also necessary to factor out arrest 

rates. Once a person is arrested, how likely is it that heor 

she will serve time behind bars? Using this analysis, the 

Midwest is now seen to have much tougher sentencine 

policies than were previously apparent: 

Penal Control/ 

Region arrests116 

South 1.643 

Midwest 1.448 

National Average 1.401 

Northeast 1.204 

West .981 

These simple extensions of what had been the cornmon measure of a state’s criminal justice policiesproportion of its population behind bars-chall 

conventional notions about how each state’s criminal j 

system is operating. For example, Minnesota is freque 

singled out because it ranks at the bottom of the states in 

80 U.S. Advisory Commission on Intergovernmental Relations 
Table 3-2 

International Comparisons 

By end of 1989, the United States had the highest number 

of inmates per 100,ooO population in the world: 

United States 426 

South Africa 333 

Soviet Union 268 

In comparison, inmates per 100,OOO: 

United Kingdom 97 

France 81 

Denmark 68 

Japan 45 

Source: Marc Mauer, Antencans Behind Bars: A Companson of International Rates of Incarceration (Wash- ington, DC: The Sentencing Project, 1991). 

percentage of its population that is in prison. However, 

when the state’s high arrest rate and its low crime rate 

are factored in with its use of jail, juvenile facilities, probation, and parole, Minnesota ranks 16th among the 

states in the number of individuals under penal control 

relative to the incidence of crime. The Minnesotacriminal justice system has a high rate of response to crime; it 

is just that the response is less often prison.”’ 

The focus analysis on page 82 was developed to provide a snapshot of the range of public policy considerations faced by state and local officials. It is based on 

rankings contained in the 1988 NCCD research, “Ranking the Nation’s Most Punitive States.”118 While it is not 

a definite analysis of each state, it is valuable as an order-of-magnitude reflection of state penal policies in 

the mid-l980s, subject to problems in gathering accurate and comparable state-by-state data. 

The analysis attempts to identify reasons why each 

state might consider increased use of alternative sanctions. There are states where increased use of alternative sanctions can be particularly productive because 

they now make little use of them and have low crime and 

arrest rates. Although states with high crime ratcs 

would see less reduction in their prison populations 

from increased use of alternative sanctions, they may 

wish to expand them as a means of achieving greater 

control over those on probation or parole. 

The analysis also indicates that some states might 

benefit from the use of alternatives sanctions to reduce 

the length of imprisonment, while others should concentrate on diverting offenders from the criminal justice system at the earliest possible stage. The analysis 

reveals that some states do appear to have a reasonable 

balance between the use of incarceration and alternative sanctions and, therefore, probably are more justified in dealing with prison or jail overcrowding on a facility-by-facility basis. Finally, the analysis identifies 

those states that do not have a high proportion of their 

population imprisoned because they do not have high 

crime rates, and notes that these states may still want to 

examine their priorities rather than continue to spend 

public safety dollars unnecessarily. 

In order to weigh policy changes responsibly, the fore- going preliminary analysis underscores the need for each 

local criminal justice system and each state to undertake an 

accurate and comprehensive analysis addressing the points 

raised. Are prison and jail populations high because of: 

w 

High rates of reported crime? 

High numbers incarcerated who in other states 

would not be behind bars? 

w Low use of alternatives? and/or 

Relatively long sentences? 

SUMMARY 

Controlling costs, increasing public safety, changing 

criminal behavior, and providing just punishment are all 

reasons being put forward for a renewed emphasis on alternative correctional programs. The potential exists in all 

aspects of the criminal justice system: 

Police and prosecutors can increase the use of 

summons, improve charge screening, and employ 

deferred prosecution. 

Prosecutors, public defenders, judges, and other 

court officers can expand the use of pretrial release risk-assessment models, release on recognizance, alternative forms of bail, and pretrial release supervision. 

Jail, probation, and prison officials can work together to improve offender information and classification. 

All court and correctional officials can be involved 

in developing creditable programs of monetary 

sanctions, community service, non-secure rehabilitation centers, and intensive supervision. They can 

enlist police and treatment providers in developing 

a balance between detecting probation and parole 

violations and providing program support. 

Correctional administrators and general government program administrators can cooperate to 

expand educational, mental health, substance 

abuse, and employment rehabilitation efforts. 

State and local government officials can use a comprehensive change, such as a Community Corrections Act, to emphasize sentencing options. 

There is no shortage of alternative programming 

ideas. The challenge to general government elected offi- cials is to work with the realities of their state’s system of 

criminal justice-as represented by its crime rate, incar- ceration rate, and relative use of community sanctionsto provide appropriate policy support for and public understanding of the need for change. 

U.S. Advisory Commission on Intergovernmental Relations 81 
Focus 

Differences in the Potential for Increased Use of Alternative Sanctions in States 

If there are agreed-on public policy reasons to do so, all 

tates can reduce their prison populations by increasing the use 

if alternative sanctions, but for some states there is more latiude for change than for others. 

Increased me of alternatives could be particularly productive 

n states that rank high in the proportion of their population imwisoned and that make little use of alternatives. These states 

n c 1 u d e : 

itate Population Arrests Per Arrests 

qevada 1 13 36 

Jirginia 16 17 37 

Uabama 8 7 22 

South Carolina 4 4 17 

3klahom a 9 14 25 

Rank Per Prisoners Per Total Control 

Three other states also have a high proportion of theirpopilation in prison and make relatively little use of alternatives, 

jut each of these states has a high rate of reported crime and arw&. Therefre, increased use of alternatives will haveless dect on 

.he proportion of their population serving time in prison: 

State Population Arrests Per Arrests 

Florida 12 29 22 

4rizona 7 30 42 

Zalifornia 17 35 32 

Rank Per Prisoners Per Total Control 

Other states have a high proportion of prisoners relative to 

their population and make high use of alternatives. They also 

make high use of imprisonment, which drives up their prison 

populations. Only two of these states rank high in reported 

crime, Michigan (10) and Alaska (11). Therefore, for these 

states, it would be particularly mefd to look at why prisoners 

vend so much time in prison: 

State Population Arrests Per Arrests 

Alaska 2 11 3 

Georgia 10 11 2 

Louisiana 5 3 10 

Delaware 3 5 11 

Michigan 15 16 12 

Mississippi 13 2 14 

North Carolina 11 15 16 

Rank Per Prisoners Per Total Control 

Only two states having a high percentage of their population in prison stand out as making substantially more use of alternatives than of imprisonment: 

State Population Arrests Per Arrests 

Texas 14 26 7 

Rank Per Prisoners Per Total Control 

Maryland 6 20 9 

It is significant that of the 12 states that have the highest 

rates of reported crime (Florida, Arizona, Colorado, Oregon, 

Nevada, Texas, Washington, California, New Mexico, Michigan, 

Alaska, and New York), five of them are not listed above because, despite their high rates of reported crime, they do not 

have high rates of imprisonment. To the degree that these states 

also make relatively little use of alternatives relative to arrests, they 

could be termed the least punitive in dealing with criminal activity. Development of alternative sanctions in these states may be 

more strongly affected by apublicsafety desire to addgradients of 

control than to lessen the growth of prison populations: 

Rank Per Prisoners Per Total Control 

State Population Arrests Per Arrests 

Colorado 42 48 48 

Oregon 27 45 38 

Washington 33 40 13 

NewMexico 25 34 45 

New York 20 24 28 

Several states, because of their low crime rates, do not appear to be punitive when measured by the proportion of their 

population in prison, but stand out as punitive in their highuse 

of both imprisonment and alternatives relative to arrests. 

These states have relatively more latitude to approach programs that will divert offendem from the criminal justice system 

d the earliest possible stage: 

Rank Per Prisoners Per Total Control 

State Population Arrests Per Arrests 

Vermont 39 9 1 

Tennessee 32 10 4 

Indian a 26 8 5 

Illinois 30 12 6 

Ohio 22 6 8 

Finally, four states with low rates of reported crime make 

significantly higher use of alternatives than they do of imprisonment. Response to a criminal justice crisis in these stateswhether it is jail or prison overcrowding or a breach of public 

safety-can probably be dealt with more satisfactorily by focused 

changes, denling with the problem at hand, than the need to 

make major changes elsewhere in the criminal justice system: 

Rank Per Prisoners Per Total Control 

State Population Arrests Per Arrests 

Massachusetts 45 28 15 

Minnesota 50 50 27 

Pennsylvania 38 32 18 

Rhode Island 36 33 19 

The remaining states also do not have high rafes of reported 

crime. They can be grouped into two categories based on their 

use of imprisonment and alternatives. The first group ranks in 

the middle-range in their use of alternatives and imprisonment 

relative to arrests. In order of their relative use of altematiws, 

they are: Kentucky, Connecticut, Kansas, Nebraska, Hawaii, 

Missouri, New Jersey, Arkansas, Wyoming, and South Dakota. 

The final group ofstates is in the bottom third in their use 

of both imprisonment and alternatives in relation to arrests. 

Again in order of their relative use of alternatives, they are: 

New Hampshire, Iowa, Montana, Wisconsin, West Virginia, 

Idaho, Maine, North Dakota, and Utah. 

Not surprisingly, with the exception of Kansas, all of the 

states in the first group have more people behind bars relative 

to their population than the states in the second group. Of the 

lowcrime states, the second group is the least punitive in dealing with those arrested. 

82 U.S. Advisory Commission on Intergovernmental Relations 
NOTES 

’ U.S. v. Salerno, 481 U.S. 739 (1987). 

2U.S. Department of Justice, Bureau of Justice Statistics (BJS), 

“Recidivism of Felons on Probation, 1986-89,” BJS Special Re- port (Washington, DC, February 1992). 

“Probation and Parole 1990,’’ BJS Bulletin, November 1991, 

Table 4. 

4ACIR computation of the estimated ratio of felonies to misdemeanors is based on the following assumptions about arrests as 

reported in the Federal Bureau of Investigation’s 1990 UCR, 

Crime in the United States: Felonies include all arrests for murder, forcible rape, robbery, aggravated assault, burglary, motor ve- hicle theft, arson, weapons offenses, other sex offenses (excluding 

prostitution and rap), and suspicion; three fourths of drug ar- rests; two thirds of the arrests for forgery and counterfeiting, 

fraud, embezzlement, passesing stolen property, and offenses 

against children; and one fourth of the arrests for larceny theft. 

Wemeanors include the remainder, excluding non-alcohol rclated traffic offenses, curfew violations, and runaways. 

’Barry Krisberg in Andrew H. Malcolm, “More Cells for More 

Prisoners, But to What End,” New Yo& Times, January 18, 

1991. 

60ffice of the Attorney General, “Opening Remarks as Delivered by Dick Thornburgh, Attorney General of the United 

States, at the National Drug Conference,” May 15, 1990, pp. 

6-8. 

’Crime and Punishment: The Public’s View (New York: The 

Edna McConnell Clark Foundation, 1983, p. 5. 

* Ibid., pp. 12, 34. 

Wayne Huggins, panelist on National Governor’s Association 

Panel, May 22,1991. 

“Russell Committee, Bar Association of Baltimore City, 77ze 

Drug Crisis and Underfunding of the Justice System in Baltimore 

City (Baltimore, December 1990). 

’’ Susan E. Martin, Lee B. Sechrest, and Robin Redner, Die Re- habilitation of Criminal Offenders: New Directions for Research 

(Washington, DC: National Academy Press, 1981) pp. 1-28. 

’* US. Advisory Commission on Intergovernmental Relations, 

State-Local Relations in the Criminal Justice System (Washing- ton, DC, 1971), p. 53. 

l3 (California) Blue Ribbon Commission on Inmate Population 

Management, Final Report, (Sacramento: January 1990), p. 110. 

l4 bid. 

Is Joan Petersilia, The Influence of Criminal Justice Research 

(Washington, DC U.S. Deaprtment of Justice, National Insti- tute of Justice, 1987), p. 64. 

l6 “Pretrial Release of Felony Defendants, 1988.” 

l7 Ibid. 

l8 US. Department of Justice, Bureau of Justice Assistance PA), 

Pretrial Services Progmms (Washington, DC, September 1W). 

19BJS, Report to the Nation on Crime and Justice (Washington, 

DC, 1988). 

2o “Pretrial Release of Felony Defendants, 1988.” 

Petersilia, The Influence of Criminal Justice Research 

“Pretrial Release of Felony Defendants, 1988.” 

National Association of Pretrial Services Agencies, Pretrial 

Services and Practices in the 1990s; Findings from the Enhanced 

&trial Services Pmject (Washington, DC, 1991). 

24 BJA, Pretrial Services Progmnrs. 

25 National District Attorneys Association, National Prosecution 

Standards, 2nd ed. (Alexandria, Virginia,l991). 

26 State of New Jersey County and Municipal Government Study 

Commission, Corrections Policy for the 90’s (Trenton, 1989). 

27 “Pretrial Release of Felony Defendants, 1988.” 

28 Ibid. 

29 Ibid., Table 9. 

30 Russell Committee, The Drug Crisis and Underfunding of the 

Justice System in Baltimore City, p. 34. 

31 Stevens H. Clark, “Pretrial Release: Concepts, Issues, and 

Strategies for Improvement,” Research in Corrections 1 (Octo- ber 1988). 

32 “Pretrial Release of Felony Defendants, 1988.” 

33 National Association of Pretrial Services Agencies, Pretd 

Services and Practices in the 1990s. 

34 BJA, Treatment Alternatives to Street Crime (Washington, DC, 

1987). 

35Thomas Weigand, “Germany Reduces Use of Prison Sentences,’’ Overcrowded Times (Castine Research Corporation, 

April 1992). 

36 Ohio Governor’s Committee on Prison and Jail Crowding, Fi- nd Report, by David Diroll, Candace Peters, and Steven Van 

Dine (Columbus: Governor’s Office of Criminal Justice Services, 1990). 

37BJS, “Felony Sentences in State Courts, 1988,” BJS Data Report, 1989 (Washington, DC, December 1990). 

38Ham~ County Adult Probation, Annual Report: Fiscal Ear 

1989 (Houston, 1990). 

39 Petersilia, The Influence of Criminal Justice Research. 

40 Todd R. Clear and Kenneth W. Gallagher, “Probation and Pa- role Supervision: A Review of Current Classification Practices,” Crime & Delinquency 3 1 (July 1985). 

41 Ibid., p. 433. 

42 BJS, Felons Sentenced to Probation in State Courts, 1986 (Wash43 Crime and Punishment: The Public’s View. 

44Harri~ County Adult Probation, Annual Report, p. 26. 

45 “Electronic Monitoring of Offenders Increases,” NIJReports, 

46 Petersilia, The Influence of Criminal Justice Research. 

47 U.S. Sentencing Commission, Intermediate Sanctions: A Discussion of Illustmtive Pmgratns (Washington, DC,1990). 

48 New Jersey County and Municipal Government Study Com- mission, Corrections Policy for the 90’s. 

49 US. Sentencing Commission, Intermediate Sanctions: A Discussion of Illustrative Pmgrams. 

New Jersey County and Municipal Government Study Commission, Corrections Policy for the 90’s. 

51 US. Sentencing Commission, Intermediate Sanctions: A Discussion of Illustmtive Programs. 

52Barry J. Nidorf, “Probation and Parole Officers: Police Officers or Social Workers?” Proceedings of the American Comctional Association Conference, 1989. 

53 George Camp and Camille Camp, The Corrections Ydk: 

Adult Prisons and Jails (South Salem, New York Criminal Justice Institute, 1990). 

54 Hank Whittemore, “Hitting Bottom Can Be the Beginning,” 

Parade Maguzine, March 15, 1992, pp. 4-6. 

55BJS, “Drug Use and Crime: State Prison Inmate Survey, 1986” 

(Washington, DC, July 1988). 

ington, DC, November 1990). 

January/February 1989. 

US. Advisory Commission on Intergovernmental Relations 83 
’6Fxecutive Office of the President, Office of National Drug 

Control Policy, White Paper Federal Drug Grants to States 

(Washington, DC, December 1990). 

57 Ibid. 

58 U.S. Advisory Commission on Intergovernmental Relations, 

Jails: Intergovernmental Dimensions of a Local Problem (Washington, DC, 1984), p. 10. 

59 New Jersey County and Municipal Government Study Com- mission, Corrections Policy for the 90’s. 

HJ Hennepin County Board of Commissioners, Hennepin 

County Sheriff, Hennepin County Attorney, Fourth Judicial 

District Court, and Minneapolis Police Dpeartment, Hennepin’s Criminal Justice System and the New Public Safety Facility 

(Minneapolis, January 1990). 

61 Camp and Camp, The Corrections Earbook: Adult Prisons and 

Jails. 

62 bid. 

63 Office of National Drug Control Policy, Wiite Pape: Fedeml 

Drug Gmnts to States. 

6.1 Bany J. Nidorf, “Community Corrections: Turning the Crowding 

Crisis into Opportunities,” Corrections Today 51 (October 1989) 

6s Camp and Camp. The Corrections yearbook. 

66 J. Michael Quinlan (Interview), “Meeting the Challenges of 

the Federal Bureau of Prisons,” The Third Branch 22 (1990): 

10-11. 

67 Crime and Punishment: The Public’s View. 

68 Governor Michael Castle of Delaware before the National 

Conference on Intermediate Punishments as Sentencing Op 

tions, September 6, 1990. 

69 Ibid. 

70 Ibid. 

71Charlotte Low Allen, “The Success of Authority in Prison 

72 Michael Isikoff, “Hard Time: The Mission at Marion,” Wah73 Camp and Camp, The Corrections Yearbook. 

74 Michael Isikoff, “Does Inmate Labor Work?” Wmhington Post, 

75Allen, “The Success of Authority in Prison Management.” 

76Camp and Camp, The Corrections Yearbook. 

77Allen, “The Success of Authority in Prison Management.” 

78 Isikoff, “Does Inmate Labor Work?” 

79 US. Advisory Commission on Intergovernmental Relations, 

Jails: Intergovernmental Dimensions of a Local Problem. 

“Making Jails Productive,” NIJ Research in BrieJ October 1991, 

81 Dale Parent, Recovering Correctional Costs through Offender 

Fees (Washington, DC: U.S. Department of Justice, National 

Institute of Justice, 1990), p. 47. 

Camp and Camp, Die Corrections Yearbook. 

83 National Conference of State Legislatures, Fedeml Update, 

April 26, 1991. 

84 Cindy S. Rosenthal, Opportunities in Community Correctiotts 

(Denver: National Conference of State Legislatures, 1989). 

Vera Institute of Justice, Alcohol, Drugs and Crime (New York, 

1989), p. 6. 

Management,” Insight 5 (February, 1989): 14. 

ington Post, May 28,1991. 

November 12,1990. 

p. 5. 

a6 NIJ Reports: Special Issue on Drugs, Summer 1990. 

87Paul Barrett, “Prison Drug Treatment Attracts Interest as Evi- dence Mounts that It’s Successful,” Wall Street Journal, May 20, 

1991. 

State of Oregon, Criminal Justice Services Division, Gover- nor’s Drug Control Package (Salem, May 1990). 

@Vera Institute, Alcohol, Drugs and Crime (1989), p. 7. 

’O Vera Institute of Justice, Alcohol, Drugs, and Crime: An Interim 

&port on New Yo& State’s Interagency Initiative (New York, 

’’ Bruce D. Johnson, Douglas S. Lipton, and Eric D. Wish, Facts 

about the Criminality of Heroin and Cocaine Abusers and Some 

New Alternatives to Incmeration (New York Narcotic and 

Drug Research, 1986). 

92 U.S. Sentencing Commission, Intermediate Sanctions: A Dis- cussion of Illustrative Progmms, p. 23. 

93 NU Conference on Intermediate Sanctions, p. 3. 

94NIJ Conference on Intermediate Sanctions. ’’ US. Sentencing Commission, Intermediate Sanctions: A Dis- 

‘6Camp and Camp, Vie Corrections yearbook. 

97 W. John Moore, “Paying for Punishment,” National Journal, 

“(Oregon) Governor’s Drug Control Package. 

9, Hennepin County Board of Commissioners, et. al., Hennepin’s 

Criminal Justice System and the New Public Safety Fuility. 

loo (California) Blue Ribbon Commission on Inmate Population 

Management, Final Report. 

lo’ Mary K. Shilton, Community ComctionsActs forstate andlocal Partnerships (Laurel, Maryland American Correctional 

Association, 1992). 

lo2 George Keiser, “Community Corrections Acts Perched at 

County Crossroads,” County News, September 12,1988. 

lo3 Shilton, Community Corrections Acts for State and Local Part- netships. 

104“Model Adult Community Corrections Act,“ approved by the 

American Bar Association House of Delegates, February 1992 

Ibid., Section VII(B)(2). 

lo6 Vivian E. Watts, “Crime in Virginia,” University of Virginia, In- stitute of Govenirnent, Newsletter 64 (June 1988). 

lo’ Rosenthal, Opportunities in Community Corrections. 

lo8 Ibid., p. 4. 

1987). 

cussion of illustrative Progmms. 

March 14, 1987. 

(Tennessee) Select Oversight Committee on Corrections, 

State and Local Corrections: A Coordinated Strategy for Tennes- see (Nashville, 1989), p. A-7. 

110 Rosenthal, Opportunities in Community Corrections, p. 2. 

111 Kelly Orrick, “Community Corrections: What’s in It for Coun- , ties?” County News, September 12, 1988. 

James Austin and Robert Tillman, “Ranking the Nation’s 

Most Punitive States,” NCCD Focus, April 6, 1988. 

113 Ibid. 

l14U.S. Department of Justice, Federal Bureau of Investigation, 

Uniform Crime Reports, 1990 (Washington, DC, August ll, 

11’ Marc Mauer, Americans Behind Bars: A Comparison of Interntiorial Rates of Incarcemtion Whington, M3: The Sentencing 

Project, 1991) 

116Austin and Tillman, “Ranking the Nation’s Most Punitivc 

States.” 

l17National Center for State Courts, Nidit Court: Is It a Solution 

to Jail Overcrowding? Hennepin County, Minnesota Final Repd 

(Williamsburg, Virginia, January 1990). 

l18Austin and Tillman, “Ranking the Nation’s Most Punitive 

States.” 

1991). 
~ ~__ 

4 - ESTABLISHING CORRECTIONAL 

OPTIONS 

any successful clectcd officials hced the admonition not to succumb to a “why don’t we” campaign. 

Instead, they make sure that their campaigns focus on 

the material and media necessary for the crucial last 

weeks of the campaign. They avoid being swept along by the 

latest greut idea, if it means that campaign workers and funds 

are diverted from that which must be delivered. 

Similarly, the previous chapter was not intended to 

provide a “why don’t we” list. It was intended to provide an 

overview of what is meant by correctional options, particularly for those who are unfamiliar with the criminal justice 

field. It also provided further demonstrations of impacts 

on the system as a whole if offenders are not dealt with 

effectively by any given component. 

This chapter focuses on the role of general government officials if correctional options are to be expanded 

within their systems of criminal justice. This role will 

not be to decide whichgreat program should be used, but 

to make informed decisions on the resource commitments 

necessary for the effectiveness of any program, how it will 

interact with other programs, and how its success is to be determined. This approach to policy was well stated in a 1988 

National Association of Counties newsletter: 

[Plublic officials should spend less time on consideration of the solution and more time on an 

improved understanding of the problem. In too 

many places, there is an infatuation with innovation and a “cure-all” quality assigned to programs and policy choices which have limited 

value for long-term restructuring of the corrections system.’ 

In other words, to be effective in improving the criminal justice system, general government officials need to 

focus on basic questions: 

w Is the problem that correction programs have 

abysmal failure rates, or that we have unrealistic expectations of success? 

Is the problem that there are people locked up 

who shouldn’t be, or that we don’t know who we 

have locked up? 

Is the problem that the criminal justice system is 

ineffective in dealing with crime, or that crime is 

driven by problems that must be dealt with bygovernment as a whole? 

Is the problem that the programs are not well-focused, or that they are not well staffed? 

Is the problem that alternatives to incarceration are not used, or that they are not effective? 

Is the problem that we need new approaches, or 

that we need to expand the use of the programs in 

place? 

The fundamental approach of this chapter is to help 

general government officials judge the answers they will 

get to these questions from their individual systems. The 

key issues it discusses also are presented to help government officials deal more effectively with the concerns of 

criminal justice officials, potential service providers, and 

the public in order to marshal broad commitment to 

changes in policy. 

The chapter beginsby identifying factors that frame 

the context of public policy decisions: public acceptance, the push to reduce correctional costs, research 

results on recidivism and program effectiveness, and 

the makeup of the target population. The next section 

explores general programmatic concerns through a discussion of juvenile crime and drugs as examples. With 

this understanding of endemic factors and programmat- ic concerns, the last section discusses governmental 

policy issues that must be addressed to expand the use of 

correctional options. These policy issues include intergovernmental responsibility, availability of treatment, 

the need to enforce a continuum of sanctions, coordina- tion of treatment, and the adequacy of community supervision. As depicted in Figure 4-1 (page 86), the more 

these issues mount up and/or the more constraints increase, the more need there will be for prison and jail space. 

w 

w 

w 

U.S. Advisory Commission on Intergovernmental Relations 85 
Figure 4-1 

Lessening the Pressure for More Prisons and Jails 

Through Government Action to Expand Sentencing Options 

Public Resistance 0 Cost Pressures 

Prison 

and Jail 

Space 

Required 

0 Adequate Community Supervision 0 Appropriate Program Options 

Adequate Treatment Capability 0 Treatment Coordination 

Such attitudes are understandable and that is perhaps why we have been so slow to challenge them 

THE CONTEXT OF POLICY DECISIONS 

Not In My Backyard 

As any governor, mayor or county executive can 

tell you, [intermediate sanctions] remains a politically and publicly sensitive issue. People expect 

government to protect them. They do not want 

government proposing programs that put unrehabilitated criminals back into their communities. 

And the pressure they can bring to bear to prevent 

use of these programs is difficult to overcome. . . . 

and to abandon wishful thinking that “out-of-sight, 

out-of-mind” will make our world safer.* 

By definition, community options take place in the 

community. This means that people who have been found 

guilty of a criminal act will be “at large,”outside the secure 

perimeter of an institution, Focus group examples of how 

public attitudes toward sentencing can shift with informa 

tion do not deal specifically with the not-in-my-backyan 

(NIMBY) syndrome, which is so familiar to public off1 

cials. Therefore, elected officials still will have to struggle 

to move from theoretical support of nonincarceration alternatives to actually locating programs. 

86 US. Advisory Commisslon on Intergovernmental Relations 
Although not providing guidance on how to soften the 

NIMBY reaction, the nationwide focus group discussions, 

cited in the previous chapter did surface a significant aspect of the public’s reaction to crime. The report’s findings 

emphasized that “thefeur rather than thefucf of crime determines the initial views many people express. . . . Most 

respondents had not been directly affected by crime. 

Rather, they saw it as a danger that might affect them suddenly and without ~arning.”~ 

These deep-seated fears are difficult to ameliorate. In 

presenting alternatives, public officials may be able to 

achieve greater public support by acknowledging the fear 

rather than downplaying it. This would require being open 

about how little public protection is possible with existing 

probation caseloads and with population caps on prisons 

and jails, which severely compromise control over who is 

released from overcrowded facilities. 

However, elected officials understandably may be reluctant to describe fully the tenuous nature of the criminal 

justice system’s control, for the same reason that agency 

officials may not be sharing the information with them. 

There may be a desire to avoid a kill-the-messenger response: “If things are so bad, we’ll find someone else who 

can do it better.” Officials also may want to avoid further 

inflaming the public’s fear that they are at risk, without 

any guarantee that citizens will accept that the alternatives presented will reduce the risk. 

Nevertheless, dealing with the citizens’ fear of crime 

is key to developing support for policy changes in any aspect of the criminal justice system. This fear is distinct 

from any government charts and statistics and puts the 

ombudsman role played by elected officials to perhaps its 

greatest test. As will be discussed, the risk of an individual 

criminal failing cannot be removed. Such failures will be 

directly and tragically demonstrable, further inflaming 

concern that “it could happen to me,” which is not the usual public reaction to other social problems, such as school 

dropouts, unemployment, or environmental losses. 

Given the nature of the public’s fear of crime, it is 

especially important that policy change be an outgrowth 

of acoordinated strategy of key elected and criminal justice officials. Otherwise, the personal fear can be inflamed further by pronouncements from responsible 

authorities who can disclaim the initiative. To be successful, consensus must blend the conflicting missions of 

criminal justice officials, treatment providers, and those 

who are responsible for funding it. Perhaps the most 

productive goal of such a consensus would be to ac- knowledge that public safety cannot be guaranteed, but 

that program costs should bear some relation to the degree of additional public protection achieved. 

Whether it is an education program in the prison or a 

work program in the community, implementation depends heavily on public acceptance. As in the example that 

follows from the 1991 Harris County (Houston) Criminal 

Justice Council Plan, required by the state legislature, it 

can be fairly said that public acceptance is half the battle: 

In the implementation of a Community Justice 

Plan in a locality, public attitudes toward crime, 

sanctions and punishment will affect the development of the plan, and Hams County is no except ion. [The following factors were then cited - ernphasis added]: 

Local public views on appropriate punishment. 

Judicial and criminal justice views eoncerning public safety. 

Acceptance of potential program and facility 

placements by local citizens. 

Availability of resources and public views of 

the appropriate allocation of the same. 

Evaluation of the success of programs in diverting offenders from incarceration. 

Legislative mandate and intent. 

Judicial utilization of available programs. 

Cost-effectiveness of various program elements. 

Specialized or targeted law enforcement efforts. 

Views and concerns of other elected officials 

and community leaders. 

Public views of the operation of the criminal 

justice system. 

Federal judiciary oversight and decisions? 

Cost: The Driving Force for Change 

While persuasion and increased information may 

work slowly to change public attitudes, most of the officials interviewed for this project believe that cost will 

create a much sharper swing in penal philosophy. The 

challenge before general government elected officials is 

to make the resultant shifts in criminal justice system policies productive. 

Alternative sanctions often are presented in terms of 

significant cost saving compared to incarceration. For example, Governor Michael Castle of Delaware reported 

that, even if half of the more than 700 persons in the 

state’s Intensive Supervision Program at an annual cost of 

approximately $2,300 per offender would not have been 

sentenced to jail, the program saves $5.4 million per~ear.~ 

According to a recent study of 494 community service participants, the cost of New York City’s community service 

program is $920 per year per offender, compared to 

$40,000 to jail someone on Riker’s Island. There was no 

meaningful difference in the number of crimes committed 

after the sentence was served. However, the cost to private individuals of the approximately 70 crimes committedby 

the 494 community service participants during the time they 

would have been in jail is a public policy consideration? 

The controversial modeling released in 1987, which 

asserted that the cost to society of crimes committed by 

the typical offender was 17 times the cost of imprisonment, has been followed by several critiques. All of them 

U.S. Advisory Commission on Intergovernmental Relations 87 
point out that because a relatively few offenders commit a 

large proportion of the crimes the analysis should not have 

based its computation on the assumption that all offenders would commit the average number of crimes. A more 

refined analysis in 1991 used the median number of crimes 

committed by offenders and calculated a cost ratio of 1.38, 

rather than over 17. In contrast to the implication of the 

1987 study that the more you lock up, the more you save, 

the 1991 analysis concluded that if the criminal justice system diverts the least active quarter of criminals, the total 

cost to society of any continued criminal activity would 

only be two-thirds of the public cost of prison. The study 

also noted that savings vary by the type of crime and by the 

degree to which any given state already diverts offenders.’ 

In fact, such a model of cost savings was posited in 1981 

by Peter Greenwood of the RAND Corporation. He noted 

that the average number of robberies that had been committed by persons in prison for armed robbery was 4.6 per 

year, even though half had committed no more than 1.5 robberies per year. This highly skewcd pattern resulted from the 

fact that 1 percent committed more than 30 robberies per 

year. The same statistical pattern held up for every offense 

category: the average was three to four times higher than the 

midpoint. The following scenario was then developed: 

Under typical arrest and conviction rates, 

1,000 armed robbers would be incarcerated, and 

half of them would have committed one robbery 

and half would have averaged 10 robberies. If 

they all served a 3-year sentence, the annual 

number of armed robberies would be about half 

(6,667) what it would be without incarceration. 

To reduce the robbery rate by another 20 percent, sentence lengths would have to be increased to 5.2 years. This would result in a 40 percent increase in the prison population. Whereas, 

the same 20 percent reduction in crime could be 

achieved without any increase in incarceration by 

decreasing the sentence length of all low-rate 

offenders to two years and increasing the sentence 

length of high-rate offenders to seven years? 

These types of considerations are becoming more 

common. There is no longer a “simple” dichotomy between rehabilitation and security. Now, controlling the 

burgeoning costs of incarceration also has become a drivingforce. When the issue is framed as “build more prisons 

or let dangerous people out, [wlhat sensible politician will 

come to a meeting to discuss those choices? The advent of 

corrections as a spending problem allows public officials to 

broaden the base of the political discussion.’* 

Recidivism: Is Batting .350 Good Enough? 

The most difficult hurdle in “broadening the base of 

discussion” is that it is extremely difficult for public officials to deliver on the promise that less costly alternatives 

to incarceration will work. 

Alternative sanctions may do no worse than incarceration-at much less cost. They may do better. But many 

citizens hold all programs accountable to a much higher 

standard: Do they deter criminals from committing new 

crimes? As long as the felon is incapacitated behind bars, 

in fact, no new crimes can be committed. Felons serving 

their sentences in alternative programs are not thus deterred by lack of opportunity. 

How many offenders will fail is usually reported with 

qualifications, because their success rates are influenced 

by who is selected to participate, how failure is defined, 

and/or the time period being tracked since the offender 

completed the program. The public commonly does not 

trust such “statistical excuses,” however, and simply wants 

to know, “How many prisoners will never commit another 

crime after they’re released?” The answer is about onethird. If the question, instead, is framed, “How many convicted felons will never commit another felony?” the answer is about one-half. Results in Canada have been 

essentially the same. lo 

The difference between these two answers lies in the 

fact that the second group includes all felons, not just 

those sent to prison. Felons sentenced to probation rather 

than prison have committed less serious crimes and/or do 

not have long criminal histories, and for this reason rather 

than the nature of the punishment, they are less apt to 

commit more crimes. For example, in a three-year followup of felony probationers, only 43 percent had been arrested 

for another felony. ’ Even among offenders whose crimes 

drew the more serious sanction of a prison term, the likelihood of rearrest within three years for fmt-time offenders is 

only 38 percent compared to an average of 63 percent for all 

persons released. In study after study, the predictive factor is 

the person being punished, not the punishment.’* 

Even among inmates released from prison, there are 

marked differences in recidivism among groups. A 1989 

U.S. Bureau of Justice Statistics (BJS) study based on 11 

states, representing over half the prisoners released nationally in 1983, reported ranges for recidivism over a 

three-year period of 90.4 percent to only 17.1 percent: 

The greatest likelihood of rearrest (90.4%) occurred if 

the person: 

rn 

w 

rn 

a Had been imprisoned before. 

The lowest likelihood of rearrest (17.1%) was for a 

a Was over age 35; 

m 

rn 

a 

Was age 24 or younger; 

Had seven or more arrests; 

Had a record of probation or parole revocation or 

escape; 

Had most recently been in prison for vehicle 

theft, burglary, larceny, robbery, or fraua and 

person who: 

Had three or fewer prior arrests; 

Had no prior record of revocations; 

Had just completed serving time for homicide, a 

drug offense, or rape; and 

Had not been imprisoned before. 

88 U.S. Advisory Commission on Intergovernmental Relations 
All factors are listed in order of their predictability, with 

age and prior arrest record being by far the most significant factors.13 

Another difference between the two answers is the 

definition of recidivism. It is the difference between committing any crime and committing a felony. In 1976, the 

U.S. General Accounting Office (GAO) investigated the 

recidivism issue. Its study of four counties did confirm a 55 

percent recidivism rate for probationers. GAO then went 

on to discuss the varying definitions of recidivism. For example, the Bureau of Prisons counted only new offenses 

that are serious enough to have warranted at least a 60-day 

sentence, while the LEAAdefinition included convictions 

of any kind, including traffic tickets. Both GAO and 

LEAA included probation or parole revocations for tech- nical violations that did not involve a new crime.14 

These definitions of recidivism are in contrast to some 

states that classify absconders with those who have suc- cessfully completed probation or parole. (As long as the 

state does not know the absconder has committed another 

crime, it generously is assumed that he or she has not done 

so.) Furthermore, the GAO, LEAA, and Bureau of Pris- ons definitions used in the 1976 study were based on con- victions rather than rearrest. Because arrest does not nec- essarily lead to conviction, the average recidivism rate can 

be reported as one-quarter lower if it is based on reconviction rather than rearre~t.’~ 

Finally, the length of time offenders are tracked also 

affects reported recidivism rates. It is not uncommon for 

reported recidivism rates to be based simply on whether 

the felon completed probation or parole without being ar- rested for another crime. This is not a conscious attempt 

to make the “success” rate look better as much as it is a 

pragmatic result of the fact that no one in the criminal justice system keeps track of individuals after they have completed the official period of supervision. 

Burglars and other nonviolent felons are more apt to 

be arrested for a new crime sooner than violent offenders. 

The average in a 1986 Virginia study was less than 18 months. 

Interestingly, this study also seemed to indicate that the 

more “professional” the crimiial, the longer he or she may 

go before being rearrested. Arrests for armed robbery occurred within 16 months if the offender’s previous convictions had been for less serious crimes, compared to 32 

months if the person had committed armed robbery before. 

For murderers and rapists, the average time before a new arrest ranged from 21 months for murder, if the person had 

already committed a violent crime, to 58 months for a sexual 

offense committed against a child. Almost 75 percent of the 

felons had completed the period of probation or parole before they were 

All the preceding detail signifies how easy it is to be 

misled, often inadvertently, in the search for more effective correctional programs. Claims of success or failure 

are not always what they seem. Although programs that 

save costs need to be explored, if they are expanded on optimistic assumptions of success, one unforeseen incident 

can leave the jurisdiction with no program at all. 

It is crucial that elected officials have a basic understanding of recidivism and how it is reported. The general 

government official must be immediately alert to the fme 

pMt of any program that reports “success.” The program 

may be a better program or it may have only included better 

criminals who were tracked under the best of assumptions. 

Lack of Program Evaluation 

For FY 1990, $14 million of the federal Office of Justice 

programs’ budget was devoted to evaluating and providing 

technical assistance to model state and local programs that 

focus on intermediate punishments. This 245 percent in- crease came out of a recognition that “research and evaluation [is] necessary before well-intentioned programs are pro- moted to achieve results that simply don’t 

Regrettably, this caution is but an echo of a National 

Academy of Sciences report, released a decade earlier, 

based on four years of research and discussion on the ef- fectiveness of criminal rehabilitation. They concluded that: 

Because programs have been poorly conceptual- ized and/or poorly implemented and research 

flawed by conceptual and methodological short- comings, the conclusions that rehabilitation can- not be achieved may well be wrong. Instead of 

concluding that nothing can work, it is more accurate to state that we do not know what works. 

These studies are limited by methodological inadequacies including measurement problems, 

the use of weak programs and weak research de- signs, and uncertainty about the integrity of the 

treatments actually delivered.1s 

One reason for the National Academy of Sciences’ fo- cus on the effectiveness of criminal rehabilitation was to 

evaluate a 1975 study that was credited with “giving reha- bilitation the coup degrace.” The Martinson study, named 

after its principal author, examined all studies of treatment/evaluation published in English between 1945 and 

1967 that included a control group. After reviewing 231 

studies, the researchers concluded: 

With few and isolated exceptions, the rehabilitative efforts that have been reported so far have 

had no appreciable effect of recidivism. These 

data are the best available and give us very little 

reason to hope that we have in fact found a sure 

way of reducing recidivism through rehabilitation.” 

The controversy raised by this conclusion led to the Academy’s review, which essentially confirmed the validity of 

the Martinson assessment of previous studies. 

However, the Academy raised important considerations about why study results have been so poor, citing 

four factors that limit meaningful evaluation, and also un- derscore chronic weaknesses in criminal justice programs.*O If general government officials do not address 

these problems, tax dollars will continue to be diverted 

into quick fixes instead of meaningful change: 

Programs inadequately screen participants. A 

program may be the best chance of success for 

one type of person and, yet, appear to be a waste 

1. 

U.S. Advisory Commission on Intergovernmental Relations 89 
because of participants for whom the program offers no motivation. 

Programs are usually single-faceted (e.g., vocational training), while many other factors may 

lead to continued criminal activity. 

There often are discrepancies in what the program was supposed to be doing and what was actually done. This is often the case when trying to 

“sell” a model program. It is difficult to maintain 

“the integrity of the original program model as it 

is adapted by practitioners to local conditions, 

agency goals, and funding restrictions, . . . [and 

change the] routines of the practitioners.”*’ 

Too often, the programs themselves are inherently weak. “Why would one expect that one hour 

per week of group therapy with a poorly trained 

leader and unwilling participants would produce 

a major behavior change in incarcerated felons, 

especially considering the powerful effect of the 

prison background?”** 

Chronic underfunding also has undercut good program evaluation. TheVera Institute of Justice, in an ongoing evaluation of a multiagency New York drug treatment 

program, stated the obvious, “How to do both jobs at 

hand- tackle an intransigent problem in public policy and 

practice and at the same time subject the process to valid 

re~earch.”’~ Because correctional budget submissions are 

cut routinely to channel funds to more politically popular 

expenditures, agencies almost always decide to use the remaining funds on program delivery rather than evaluation. 

In fact, the Vera Institute’s in-depth evaluation, which will be 

discussed later in this chapter, was done only because the 

New York assemblyman who initiated the multi-agency approach through a $1.3 million budget amendment wrote a 

specific requirement for evaluation into the language of the 

appropriation. 

Adequate evaluation also raises a specific intergovernmental challenge. Solid analysis requires a level of expertise 

that is not always present at the program delivery level: 

Research on the recidivism of probationers in 

Texas until recently has been nonexistent even 

though Tkxas has more probationers than any 

other state. . . . The main reason for the lack of research is that probationers are supervised by local 

probation departments that do not usually have 

an incentive or funds for conducting recidivism 

studies. The local nature of the probation system 

has also made it difficult for the state probation 

agency to collect data on probationers, particularly those under regular probation supervision 

[which includes about 95% of the probationer~1.2~ 

The intergovernmental dilemma is how to support needed 

evaluation while not undercutting the focus on program 

responsibility in the community. 

It is particularly unfortunate that extraordinary system growth has exacerbated underfunding of evaluation. 

At a time when there is heightened pressure to consider 

less costly alternatives, the data needed to foster confidence in these alternatives is thin. As the sign above the 

desk in one government office read: 

The road to hell is paved with good intentions. 

And littered with sloppy analysis! 

Who Will Be Placed in Programs? 

Two polar thrusts are receiving considerable attention 

today: “just desserts” and “selective incapacitation.” Just 

desserts focuses on the crime, while selective incapacitation focuses on the criminal. 

The development of uniform sentencing, as discussed 

in Chapter2, encompasses the just desserts movement. As 

noted, this movement grew out of dissatisfaction with 

leaving too much discretion with criminal justice authorities to determine who should be behind bars, based on 

their personal judgment as to who was or could be rehabilitated. Such latitude was seen to produce inconsistent and 

possibly discriminatory sentencing practices. Many also 

believe that such inconsistency undercuts general deterrence. Selective incapacitation, on the other hand, has 

gained new interest as governments have had to fund the 

extraordinary growth that resulted when uniform sentences were combined with longer sentences. 

Selective incapacitation is based on the fact that a 

small percentage of criminals accounts for a vastly disproportionate share of the crimes. Thus, the assumption is 

that the greatest gain in crime prevention can be obtained 

at the least cost by concentrating on taking “career criminals” off the streets. 

It could be argued that the public supports both of 

these seemingly opposite approaches. Participants in the 

1989 focus groups cited earlier strongly favored uniform 

sentencing. However, not only did they specifically say 

they would be lenient with first-time or even second-time 

offenders but, in general, they indicated that the “prime criterion” in sentencing should be the “likelihood that a particular offender would run afoul of the law in the futureTZ 

The course of action within these (at least theoretically) contradictory public attitudes comes down to simply 

another expression that the public will accept alternatives 

to incarceration as long as those who are assigned to them 

do not commit more crime. Such an interpretation indicates a course of action for public policymakers that concentrates criminal justice resources on achieving safety 

over meting out punishment. 

Who Will Commit More Crime? 

The disproportionate activity of a few criminals was 

first documented in a Philadelphia study that traced a 

group of males born in 1945 until they turned 18.26 Just 6 

percent of those arrested accounted for 52percent of all 

offenses committed by the group. Even more significantly, they accounted for 63 percent of all serious of- fenses, including 82percent of the robberies, 71 percent 

of the murders, 73 percent of the rapes, and 70 percenl 

of the aggravated assaults. Later studies in Wisconsin 

Ohio, California, and other long-term tracking showed 

the same pattern. This research also points out that the 

90 U.S. Advisory Commission on intergovernmental Relations 
more often a person is arrested, the grcater the chance 

of being arrested again: 54 percent of those with one arrest had a second arrest; 65 percent of those with two arrests had three arrests; and 72 percent of those with 

three arrests had four arrests.27 

The problcm is how to apply these actuarial patterns 

to individual offenders. Looking at all offenders who have 

been arrested twice, two will bearrested again and one will 

not. The challenge is to determine which one. Every mistake in classification that results in a new crime being committed by a person in a probation program may jeopardize 

use of the program for anyone else and cause additional 

victim losses. However, each judgment call that assumes 

continued criminal activity from a person who will not do 

so wastes resources and may be discriminatory. 

In 1986, the National Research Council, under the 

National Academy of Sciences, reviewed the major predictive models (the federal Salient Factor Score, RAND, 

and INSLAW). “Generally, for every three correct predictions, one will be incorrect. Nevertheless, the panel recommended giving greater weight to juvenile court records, 

evidence of serious drug use, and records of prior criminal 

activity in criminal justice decisions such as pretrial release, plea bargaining, sentencing, and parole.”28 

Use of formal predictive models is not common. However, criminal justice officials report that they do weigh 

factors such as juvenile record and drug use more heavily 

because these factors have been shown to be predictive of 

high rates of recidivism. As Stephen Goldsmith, the district attorney in Indianapolis, stated: 

Obviously, I take other factors into account too 

(e.g., the strength of the evidence), but all other 

factors being equal, I am likely to target on offenders that empirical research has shown to be 

probable recidivists. Some worry about the inaccuracies in prediction. To me, using valid correlates of recidivism probably produces fewer inequities and raises fewer ethical considerations than 

if I based such decisions on my personal opinion.2g 

Bringing a more accurate information base into this 

informal process cannot hurt, according to the 1989Michigan House Fiscal Agency’s report on criminal justice op- tions. It noted that, although selective incapacitation has 

its detractors focused on false positives in prediction, “our 

current criminal justice system already relies heavily on 

prediction. . . . More importantly, these predictions tend not 

to be based on scientifically derived information, but largely 

on subjective judgments. Selective criteria, therefore, do not 

introduce false positives where none existed before.”” 

What Will be the Effect on Prisons and Jails? 

Assuming, then, that improved prediction of future 

criminal activity will allow elected officials to support increased use of community-based sanctions without unreasonably jeopardizing public safety, how much relief in prison and jail growth can be expected? The greatest potential 

lies in reducing jail populations, with less potential for reducing prison populations. However, as noted in the stateby-state focus analysis in Chapter3, much depends on how 

much use is being made of alternatives. 

Some claim that half of the people in prison could be 

released without jeopardizing the public’s safety, while others maintain that reductions of current prison populations 

are possible only on the margins. As is so often the case in 

criminal justice, the difference appears to be as much a matter of conflicting data bases as it is a difference of philosophy. 

Those who believe that half the people in prison could 

be released frequently refer to a study done by the National Council on Crime and Delinquency (NCCD). However, 

the NCCD study was based on prison admissions, not on 

thoseinprison. In fact, it did not conclude that all-but that 

only “a significant number”-of the 52.6 percent of those 

new admissions who were convicted of petty offenses 

should not have been sent to prison. Petty offenses were 

defined as theft of less than $l,oOO, only minor injury or 

threat of injury, no use of weapon, no use of heroin, or no 

selling of marijuana. 

NCCD did interview their entire sample of 154 admittees about past criminal activity. They found that 43 percent 

were “into crime” as a way of life and noted that 59 percent 

of these were among those admitted for a petty offense. This 

would translate to about half of the 52.6 percent of admissions. NCCD described this group of repeat offenders as 

“highly disorganized, unskilled and undisciplined petty crimi- nals who very seldom engaged in violence . . . [and] rarely 

made any significant amount of money from their Criminal 

This description would indicate that a high-security 

facility would not be required for most of these offenders, 

but most public policymakers still would endorse some 

means of addressing their high level of criminal activity. 

Because the petty offenders identified in the NCCD 

study typically do spend less time in prison than serious offenders, a different picture about how much prison populations can be reduced emerges from looking at the criminal records of those in prison. A potential reduction in 

current prison populations of only 10 percent emerges 

from the following analysis of the BJS survey of more than 

14,000 state prisoners in 1%1:32 

25% are career, violent criminals (defined as having three ormore convictions with at least one for 

a violent offense), and 

18%are nonviolent, career criminals who are in 

prison on at least their fourth conviction. 

These offenders represent 43 percent of the average state 

prison population, and few, if any, would advocate shorter 

sentences for this group. An additional 

22% are violent recidivists with two convictions, 

at least one of which was for a violent offense; 

12% are violent first timers; and 

2% are first-time drug traffickers. 

H 

B 

B 

H 

H 

The two groupings total 79 percent. There may be some offenders in the second group whose records would justify a 

nonprison punishment option, but if there is increased the 

served in the first group, no net change would result for approximately 80 percent of the total prison population. The 

remaining 20 percent might be reduced by one-half through 

using punishment options for nonviolent offenders (excluding major drug traffickers) with no previous convictions (5 

U.S. Advisory Commission on Intergovernmental Relations 91 
FOCUS 

Who is in Prison? 

A snapshot of Virginia’s prison population on November 

1, 1988, shows that over 85 percent of the prison inmates were 

nfined for either a violent offense (60 percent), a serious drug 

rense (7 percent), or were nonviolent offenders who had been 

nvicted before (18.5 percent). This leaves less than 15 percent 

10 are nonviolent, first-time offenders-the only category 

It is important that each prison and jail system be able to 

provide elected officials, the media, and the publicwith at least 

this accurate a picture. Otherwise, false assumptions will shape 

policy. The most common false assumptions stem from (1) the 

use of the term “nonviolent,” (2) the makeup of the federal sys- tem, and (3) equating the pattern of crimes committed with 

ound which there is general public agreement that a prison 

ntence may not be appropriate. 

who is serving time. 

Editorials that decry the waste of public resources bei00- 

- 

100- 

- 

lo0 - 

- 

300 - 

- 

800 - 

- 

600- 

- 

.m- 

- 

,200- 

- 

1000- 

- 

800- 

- 

600- 

- 

400- 

- 

200- 

- 

0- 

Figure 4-2 

State Responsible Felons 

Prison 

Jail 

I- The line within the gray and 

slashed portions of each bar 

indicates first felony convic- tion. 

* Crime Groupings 

Larceny-larceny, stolen vehicle, stolen 

property 

Forgery-forgery, fraud, 

embezzle, extort 

Other--sex offense (not assaultive), 

crimes against persons, property crimes, 

arson, obstructing judiciary and police, 

public peace, morals and decency 

crimes, and other offenses not specified 

Violent Nonviolent 

Source: Virginia Department of Corrections, Research and Evaluation Unit, OBSCIS-IRS Information System, 1988. 

92 U.S. Advlsory Commlssion on Intergovernmental Relatfons 
cause “half of our prison populations are nonviolent” often read 

as if nonviolent meant white-collar crime. In the typical group 

ings as found in the Virginia profile, only forgery equates to the 

public’s perception of a white-collar crime, and such offenders 

represent only a very small portion of a state prison population-3 percent in the case of Virginia. 

The public’s perception of white-collar criminals wasting expensive secure prison space is drawn from the federal system. Federal prisons do contain a high percentage of white-collar criminals 

because tax evasion, securities violations, and interstate fraud are 

federal offenses, while murder and armed robbery are prosecuted 

predominately as state crimes, A recent analysis of the Colorado 

criminal justice system dubbed this the “Cookie-Bandit” issue 

and observed, “This is a falsehood. Prisons are not filled with 

people who are guilty of relatively minor crimes like shoplifting or 

Writing bad checks. By the time aperson gets to prison, he is most 

likely a veteran of the criminal justice system.” 

In addition, without accurate information, it is easy to 

overlook how the length of time served by violent criminals 

and repeat offenders affects the makeup of the prison population. For example, Figure 4-3 showing arrests in Virginia 

presents a totally different pattern from Figure 4-2. Policy 

discussions, which assume that the prison makeup reflects 

the pattern of felony arrests, will assume that far more can 

be done to reduce burgeoning prison budgets by increased 

use of community sanctions than, in fact, can be realized. 

Figure 4-3 

Arrests by Category in Virginia for Calendar Year 1987 

426 

2.019 

820 

4,889 

7,800 

13,000 

30,s 18 

2,742 

4 12 

C 

& 

Violent Nonviolent 

Sources: U.S. Department of Justice, Federal Bureau of Investigation, Uniform Crime Report, 1957. Colorado Legislative Council, 

Committee on Criminal Justice, Reprt to the Colorado Geneml Assembly (Denver, 1989), p. 9. 

U.S. Advisory Commission on Intergovernmental Relations 93 
percent), one previous conviction (8 percent), and two 

previous convictions (7 percent). Violent and nonviolent 

are defined by the standard UCR offense categories described in Chapter 1. Figure 4-4 illustrates further howdifferent conclusions about the numbers of prisoners who 

might be released depend on current offense versus criminal 

history and new admissions versus total number of prisoners. 

Another approach to determining how much prison 

populations can be reduced is to look at reducing the 

sentences being served rather than at who is in prison. 

The experience of states using early release of all but 

the most serious offenders to control prison populations indicates that a 10 percent to 15 percent reduction 

in prison populations is possible without any appreciable increase in criminal 

If the prospects for diverting state prison inmates into 

community sanctions in any given state are found to be 

marginal-although significant if thought of in terms of 

avoiding the cost of a medium-size prison-what types of 

policy changes would safely put more local jail inmates 

into community sanctions? 

In 1989, the typical jail population was made up of 

about 43 percent awaiting trial and 57 percent who had 

been convicted, and were either awaiting sentencing (7.3 

percent), transfer into the state prison system (6.0 pcrcent), being held under contract for the federal government or other local authorities (5.1 percent), or were serving a jail term. Approximately75percent of the total were 

being held on felony charges; equally significant, approximately 75 percent had been convicted previ~usly.~~ 

Because it is the largest category, those awaiting trial are 

usually looked at first for alternative programs to reduce jail 

populations. Although this does include the most violent offenders, an Ohio survey showed that one in five were being 

held on minor misdemeanor charges. Another distinct class 

of detainees has been created by increased attention to domestic violence and sex offenses during the 1980~.3~ 

The next largest category is sentenced misdemeanants. The largest subgroup in this category is serving jail 

sentences for driving under the influence. Nationally, sentenced DUI offenders increased by 25 percent between 

1983 and 1989.36 However, half of this group did have at 

least one previous drunk driving con~iction.~’ 

Even under the best of circumstances, communitj 

sanctions probably would not be appropriate for at least 

one-third of the typical jail population. These are firsttimers who have committed a violent crime (6.6 percent) 

and recidivists who have a violent criminal record (29.9 

percent).38 Further, use of alternatives for those who are 

back behind bars for the third time or more would be limited. They might be put into Community programs, but 

only with well staffed supervision and not typical of the 

caseloads that will be discussed later in this chapter. 

The focus needs to be on the estimated 16 percent of 

the jail inmates in 1989 who had been convicted of or 

charged with a nonviolent offense and had no previous sentences to probation, jail, or prison. An additional 3.5 percent 

were recidivists who had previous sentences for only minor 

public-order offenses, such as drunkenness, vagrancy, loitering, and disorderly conduct. This group includes the mentally 

ill, who are sometimes charged with disorderly conduct to 

get them off the street. More than 8 percent of the jail inmates surveyed nationally said that they had been sent by a 

court to a mental hospital or mental health treatment proNew Admissions 

by Current Offense 

Violent 

27.4% 

Other* 7.6% 

Figure 4-4 

1991 State Prison Populations 

Total Population 

by Current Offense 

Total Population 

by Criminal History 

Violent 

46% 

Property 

25% 

Violent 

60% 

Nonviolent 

Recidivists 

33% 

First Time Nonviolent 7% 

Source: ACIR computation from U.S. Department of Justice, Bureau of Justice Statistics, Prisonsand Prisoners in the United Slates, 

April 1992 

94 U.S. Advisory Commission on Intergovernmental Relations 
gram, and 13.3 percent said that they had taken medication 

prescribed for an emotional or mental problem.39 

To summarize, three areas of action can reduce the 

number of inmates held in an expensive full-security jail. 

First, as raised in Chapter 2, improved court-case management could move people out of unnecessary jail detention 

more expeditiously. Second, general government elected 

officials could review policies set during the 1980s as to 

where drunk drivers and other substance abusers, domesticviolence offenders, and the mentally ill should be held. 

3an these people be held in space that is less expensive 

han a secure jail facility? 

Finally, to reduce unnecessary use of prison and jail 

space, the ability to identlfy offenders who have a low probability of committing future criminal acts, and who therefore 

can be creditably put in alternative pretrial or probation programs, needs to be enhanced. Elected officials may need to 

support each other in removing legislative restrictions on using this information for sentencing and parole. 

Summary 

Concerns about cost, public safety, and finding better ways to deter criminal activity arc powerful forces 

pushing renewed interest in alternativesanctions. To cffectively shape public policy in response to these concerns, general government elected officials need to 

work with criminal justice officials and professionals to 

gain an accurate picture of what can be accomplished. A 

valuable by-product of this mutual exploration may be 

to avoid inflaming the personal fear of crime held by 

many people, engendered when statements are made 

from partial knowledge. 

Conflicting pictures of potential cost savings range 

from negative to millions. The difference typically lies 

in comparisons that look at only public expenditures 

versus including the cost of crime to society, and in comparisons based on an overall average of the number of 

crimes committed by all offenders versus those that assume high-rate offenders will not be released. Because 

the average is typically three or four times higher than 

the midpoint, diverting the bottom quarter in criminal 

activity can produce total savings even when the cost of 

crime to victims is included. 

The likelihood of an offender continuing to commit 

crime after release is also at the heart of concerns about 

public safety. Elected officials need to be alert when 

they look at recidivism claims, so that they can honestly 

weigh public concerns in considering policy options and 

hold agencies accountable for adequate evaluation of 

programs. Distinctions often are missed that relate to 

criminal histories, what constitutes failure, and the 

length of time offenders are tracked. Research being 

done to identify career criminal patterns indicates that 

the likelihood of a person released from prison committing new crimes can range from as low as one out of six to 

the virtual certainty of nine out of ten. 

To avoid surprises midway through legislative 

change or disappointing results, general government 

elected officials need an accurate picture of who is incarcerated in their system. As the focus analysis in the 

last chapter indicated, there is a substantial difference 

among the states in incarceration practices, with resulting differences in the criminal records of those behind 

bars. Loosely used terms and labels are an even greater 

source of controversy in changing incarceration policies. In general, assertions that a large proportion of inmates can be released are based on the relative incidence of the types of crime committed or on admissions to 

prison rather than on the actual population of inmates 

serving long sentences, on the offender’s current offense 

rather than criminal record, and/or on assuming “white 

collar” and “nonviolent” are interchangeable terms. 

Finally, if recidivism research is to be used to determine how sentencing options can produce short- and longterm cost savings through reduced incarceration, then 

sentencing legislation will need to give the criminal justice 

system the flexibility to make offender-based decisions. 

Offense-based legislation that mandates incarceration 

and/or narrowly prescribes sentence lengths, as discussed 

in Chapter 2, does not provide for this potential. 

PROGRAMMA TIC CHALLENGES 

TO A MORE EFFECTIVE 

CRIMINAL JUSTICE RESPONSE 

The remainder of this chapter examines the National 

Academy of Sciences’ focus on determining the right program for the offender, the need for multifaceted approaches, caution in transplanting “model” programs, and 

lack of adequate program support. Although they should 

try to stay out of program details that should be left to the 

professional judgment of program administrators, elected 

officials do have a responsibility to hold program administrators accountable. They need tobe sensitive to what isan 

unreasonable expectation, what legitimate differences in 

mission-as opposed to classic turf battles-get in the way 

of interagency coordination, and the range of program 

possibilities being used elsewhere that might help carty 

out the criminal justice policy direction they believe is in 

the public’s best interest. 

To prepare for a discussion of the governmental and 

intergovernmental policy challenges involved with establishing viable alternatives to incarceration, which will be 

taken up in the last section, this section focuses on two 

high-profile program areas-juveniles and drugs-as studies 

in the types of programmatic concerns that arise in all alternative sanctions. Such programmatic concerns have 

significant impacts on governmental policy decisions. 

The Juvenile System 

Given the vast number of issues that face general government elected officials in criminal justice, juvenile justice issues are too often an afterthought. Unfortunately, 

lack of attention has direct impact on the problems of the 

adult criminal justice system. The individual criminal is 

US. Advisory Commission on Intergovernmental Relations 95 
not born anew at age 18. (A few states use 16 as the age of 

criminal responsibility, and others use 17 or 19). The adult 

criminal carries all of the perceptions about the justice system gained in the juvenile system, as well as all of his or her 

unmet needs. Further, the increase in serious juvenile crime 

has left the public less satisfied with defining criminal responsibility by an arbitrary birthday. Therefore, what happens in the juvenile system is taking on greater importance. 

Serious criminal activity is occurring at younger ages 

in many communities. In California, the homicide rate 

among black teenagers, already high, nearly doubled between 1984 and 1988, and in some areas it exceeds the casualty rate among soldiers in Vietnam.40 According to Nevada’s governor, in mid-1989, the bs Vegas Metro Police 

Department had identified approximately 25 separate 

gangs in the area, with around 2,500 gang members. Ayear 

later, those numbers doubled. The level of violence has in- creased-Las Vegas alone documented nearly 80 gangrelated, drive-by shootings-and the overall age of the 

criminals charged with these violent crimes dr~pped.~’ 

Some drug traffickers recruit children as young as six or 

seven years old to be “steerers”-kids who stand on street 

corners and point customers to the dealer’s place of busi- ness. Because of protective juvenile laws, using children 

has provided an easy way for a trafficker to insulate his or- ganization from risky tasks.“* 

These examples of increasingly serious juvenile criminal activity are related to another major factor: the increased availability of high-powered automatic weapons in 

the 1980s. In considering the long-term needs of the crimi- nal justice system, it is important to reiterate the point 

made in Chapter 1 that, even if the drug trade were 

stopped tomorrow, these weapons would continue to be 

used. For this and other reasons, most juveniles whom 

drug traffickers have used as “enforcers” to commit mur- ders because of reduced penalties for juveniles will be in 

the criminal justice system for most of their adult lives. 

*ends and the Response to Juvenile Crime 

The most significant trend in juvenile involvement in 

serious crime is documented by the FBI’s Uniform Crime 

Reports. In 1974, because of the high number of juveniles 

in proportion to adults due to the baby boom, 31.2percent 

of the total Part I crimes known to police and 12.5 percent 

of the violent crimes were cleared by the arrest of a person 

under age 18. These percentages decreased until in 1987 

juvenile arrests represented only 18.1 percent of total arrests for serious crimes and 8.5 percent of arrests for violent crimes. In just three years, however, these percentages climbed back up to 19.2 percent of all serious crimes 

and 11.2 percent of violent crimes being cleared by the arrest 

of a person under age 18.43 This level of criminal activity has 

caused an increase in the number of juveniles who are being 

tried as adultsby criminal justice authorities in some jurisdictions even though the national average remained at about 5 

percent of the juveniles arrested since 1979.44 

This trend toward more juveniles committing serious 

crimes raises three program issues that may involve public 

policy changes. First, there will be an impact on juvenile 

correctional programs and facilities. Even in 1987,39 percent of the juveniles confined in long-term, state-operated correctional facilities had committed a violent crime. 

Overall, 58 percent had a current or prior history of violent offenses, 48 percent reported at least six priorarrests, 

and 24 percent reported at least three prior admissions to 

juvenile correctional fa~ilities.~~ Thetraditional philosophy of the juvenile criminal justice system as rehabilitative 

will be tested. 

Second, increased involvement of juveniles in serious 

crime may focus new attention on the differences in the 

criminal justice response among jurisdictions. The likelihood of a juvenile being arrested for serious crimes falls 

steadily in inverse relation to the size of the city, from 20.6 

percent of total arrests for serious crimes in cities under 

10,OOO to only 12.1 percent in cities over one million population.& This disparate response may warrant consider- ation of whether it is a healthy reflection of differences in 

community standards determining acceptable behavior, or 

whether it reflects an unhealthy disparity in resources 

leading to criminal acts not being addressed until they 

have become an established adult pattern. 

Third, the increasing seriousness of juvenile crime 

rakes the public policy question of whether a central tenet 

of the juvenile justice system, confidentiality, should be 

significantly modified. Traditionally, the emphasis has 

been on protecting the juvenile, which has meant that 

court records have been sealed and courtrooms are closed 

to the public. However, given the growing body of re- search regarding career criminals, groups such as the National Research Council Panel on Research on Criminal 

Careers in 1986 have recommended that adult justice sys- tem agencies gain access to the juvenile record at the time 

of a person’s first serious criminal involvement as an adult. 

As cited in the previous section, the two greatest predic- tors of continued criminal activity are how young the individual is and how many previous crimes he or she has com- mitted. Efforts to get the public to accept the inherent 

risks in community alternatives call into question whether 

serious juvenile records can be ignored. 

In addition to the role of early rehabilitation, the ur- ban core response to crime, and effectively dealing with 

career criminals, the juvenile justice system has another 

important link to the adult system. The way the criminal 

justice system deals with adult offenders may have direct 

impact on’juveniles. U.S. Sen. Daniel Patrick Moynihan 

has observed that while the welfare system in the 1960s 

created the “one-parent family,” drugs now are creating 

the “no-parent family.”47 The number of women prisoners 

has grown faster than any other category, and more than one 

in three women in jail in 1989 was in for a drug offense. Twothirds of these women had children under the age of 

This situation led a drug treatment provider to argue the 

case for criminal justice treatment programs as prevention in 

a broader sense than is usually considered: 

[FJor every mother we return treated successfully, we return a functioning member of a family to 

children who are already seeing dysfunctional behavior and are already destined to become drug 

addicted themselves. I think that treatment is 

helped by law enforcement initiatives and that we 

96 U.S. Advisory Commission on Intergovernmental Relations 
never see self-referral and that the best thing that 

can happen for most of our clients is to be on probation or parole with consequence^.^^ 

5% 

I Status Offenses, 

The criminal justice response to adult offcnders in 

other areas also will have a direct bearing on the numbers 

brought into the juvenile justice system and the potential 

for successfully dealing with their criminal behavior. A 

BJS survey in 1989 revealed that one-third of jail inmates 

had another immediate family member who had served 

time in jail or prison, while over 30 percent of the females 

and 10 percent of the males had been abused by an adult 

before age 18.50 The Ohio Legislative Commission on AfroAmerican Males noted that violence in the home is the primary factor in learning violent behavior and recommended 

that law enforcement agencies and domestic relations courts 

provide support for automatic referral to motivation programs (mental health, parenting, role model, and self-im- provement) that are culturally competent and 

Finally, problems in the juvenile justice system highlight problems faced in commanding effective community 

treatment for anyone in the criminal justice system. Many 

people who are brought into the juvenile justice system 

have not committed serious crimes, and some (referred to 

as “status offenders,” “Children-in-Need-of-Services,” 

CHINS, or CINAs), who are runaways or who have been 

declared incorrigible, may have committed no crime. As 

shown in Figure 4-5, significant progress has been made 

since Congress passed the Juvenile Justice and Delinquency 

Prevention Act of 1974 in removing status offenders from 

institutions and removing juveniles from local jails. In 

1989, $46 million in federal funds was still being directed 

to local juvenile programs through formula grants enacted 

to support the mandates of this act. However, perhaps because of the progress in getting disturbed and disruptive 

youth into needed services, resistance to dealing with the 

remainder has become more apparent. 

Most of the program gaps identified in state studies 

are related to juveniles who have beenarrested. For example, the judge in charge of the Baltimore City juvenile 

court observed that waivers are often sought to try the juvenile as an adult simply because there are no available juvenile treatment programs and the adult programs, such 

as they are, are better?* A 1988 California survey identified over one-third of the juveniles in its Youth Authority 

facilities as needing serious drug treatment.53 In 1989, the 

New Jersey County and Municipal Government Study Commission reported that the parole board is keeping some children in training schools longer because there are not enough 

aftercare sexvices available in many cornmunitie~.~~ 

Figure 4-5 

Qpe of Offense and Other Reasons for Which Juvenile Offenders Were Held 

in Public Juvenile Facilities, 1989 

a- 

\\\\ I 

25% 

\- or Probation Offenses 

or Mental Retardation 

- Abuse/Neglect Emotional Disturbance, 

Source: “Children in Custody, 1989,” Juvenile Justice Bulletin, January 1991. 

U.S. Advisory Commission on Intergovernmental Relations 97 
The goal of treating juveniles in the community is 

much the same as treating first-time, nonviolent adult offenders in the community. The potential for success from 

treatment or from sanctions can be enhanced most effectively early in a potential criminal career by maximizing any community support or pressure that can be brought to bear. 

The fact that most juvenile detention centers and pro- grams are funded by county government^,^^ theoretically, 

could aid the coordination of community education and 

mental health resources. However, the juvenile treatment 

administrators interviewed for this report maintain that 

local budget accountability never worked in favor of atrisk youth. Instead, the emphasis is on the needs of kids 

whose parents are politically active. The result is that juveniles often are committed to state residential facilities, 

most of which were developed out of “frustration because 

of the lack of services available from other agencies who 

should or could serve juveniles assigned to [the juvenile 

In addition, it is still true that some status offenders are being brought into the juvenile justice system 

as a first response, rather than after other public and private community agencies have been fully utilized. Formal 

coordinating councils working with the juvenile courts, which 

include the public school system, mental health and family 

service agencies, and the police, can reduce court use simply 

because of agency reluctance to deal with disruptive youth. 

Such councils also can establish a responsive, multi-agency 

approach for juveniles who are brought before the court because of the reaction of a parent or guardian. In systems 

where a multi-agency approach is not taken, unaddressed 

problems of mental illness and substance abuse are more apt 

to carry over into the adult criminal system. 

This brief summary of the major concerns in treatment for juveniles is a precursor to any discussion of the 

adult criminal justice system. All of the problems in dealing with at-risk youth will be magnified in serving adult offenders: agency resistance, lack of programs funded in 

the community, and hardened public reaction to anyone 

brought into the justice system. In addition, the ominous 

trends for adult criminal activity reflected in the current 

juvenile picture give added gravity to future criminal justice problems facing governments. 

The Criminal Justice System’s 

Response to Drugs 

Drugs have had a momentous effect on the criminal 

justice system. Political leadership has been very influential in the criminal justice system’s response to drug use 

and distribution, and officials need to be conversant with 

the effects of these policy decisions. Further, because alcohol and other drug abuse is so common among those arrested for crime, drug treatment is not only receiving 

increased attention as a component of correctional programs and alternatives, it also represents a microcosm of 

governmental issues faced in any rehabilitation effort. 

The Effect of Increased Enforcement 

Against Drug Crimes 

Starting in the mid-l980s, drug arrests increased significantly. Nationwide, drug arrests were 55 percent higher in 1989 than in 1985 and 126 percent higher than in 

1980.57 Although the rate of increase has slowed in some 

states, there is no indication that drug arrests will soon fall 

back to earlier levels. Many states that started the decade 

with prison admissions for drug offenses at less than 10 

percent have projected that drug offense admissions in the 

1990s will reach levels previously experienced only by 

states such as California or Florida-over 30 percent. 

The national averages, shown in Figure 4-6 represent 

almost identical pictures across the 50 states. The number 

of drug-related charges more than tripled in Colorado in 

the five years between 1984 and 1989, rising from 1,299 filings to 3,956.58 In California, it has been reported that fully 

half of all defendants sentenced in 1990 in Los Angeles’ 

Superior Court were convicted of violating drug laws.59 In 

Virginia, the number of drug offenders sentenced to serve 

prison time increased four-fold in five years, from 356 in 

1984 to 1,480 in 1989. In that state the emphasis was on 

possession, with the proportion of those sentenced to prison for possession going from 45 to almost 60 percent of all 

drug admissions.60 In Illinois, the picture in 1988 was thr 

opposite, with the 27 percent increase in drug traffickin 

arrests far exceeding the 8 percent increase in arrests fo 

possession.61 

The reaction of criminal justice authorities also is be 

ing reported similarly across the states. During the firs 

State of the Judiciary address to the California legislatun 

in 1990, Chief Justice Malcolm Lucas stressed: 

. . . Drug-related cases are swamping the courts. 

In dealing with the drug crisis, courts cannot be 

viewed as the first resort-they must be among 

the last. Education, treatment, early intervention, and research into the root causes of the 

scourge are 

In New York, Lieutenant Governor Stanley Lundine reported that: 

Sheriffs and police chiefs who for years assumed a 

“round ’em up and lock ’em up” posture are calling for more drug treatment and educationpreviously seen as “soft” solutions. . . . Almost 

one in every three persons incarcerated in New 

York was brought in on drug charges. . . . It costs 

us more than $100,000 to build a prison cell in 

New York vs. $25,000 for a drug treatment bed. . . . Treatment on demand is ~rucia1.6~ 

Relation of Substance Abuse and Crime: 

Issues of Legalization 

The public policy change that has produced these 

large increases in drug convictions has stemmed primarily 

from the relationship between drug use and other types of 

crime. The greater the use of major drugs that inmates report, the more prior convictions there will be in their records. As a note of caution, it should not be assumed that 

drug use is the major cause of persons becoming criminals. 

More than half of state prisoners who report that they 

have ever used a major drug say that they began their major drug use after their first arrest.64 

A drug user may commit crime (1) because of a druginduced emotional reaction, (2) in order to buy drugs, and/ 

98 US. Advisory Commission on Intergovernmental Relations 
Figure 4-6 

Total Estimated Arrests for Drug Violations, 1976-1990 

1976 1980 1985 1990 Years 

Source: U.S. Department of Justice, Federal Bureau of Investigation, Uniform Crime &ports, 1976-90, 1977-91. 

or (3) to conduct the drug b~siness.6~ In 1985,21 percent of 

the homicides reported in the District of Columbia were 

identified as drug-related, increasing steadily to 34 percent in 1986,51 percent in 1987, and to as much as 80 percent in 19MLM 

However, it should be noted that alcohol abuse is far 

more closely linked to crime than drug abuse. According 

to a 1986 Department of Justice survey of state prison inmate~,~’ the violent offenses of murder, manslaughter, 

rape, and assault are two to three times more likely to be 

committed by someone using only alcohol than only drugs 

(see Tmble 4-1). 

The percentages for offenders using both alcohol and 

drugs at the time of the violent offense fall in the midrange, except rape, for which the percentage was 25.2. 

Only the crime of robbery is more apt to be committed by 

someone using drugs alone (20.7 percent) or both drugs 

and alcohol (21.2 percent) than by someone using alcohol 

alone (13.4 percent).68 Admittedly, this information is limited by the fact that it represents the self-reports of inmates. 

Table 4-1 

Violent Offenses Committed by Persons 

under the Influence of Alcohol Compared to Drugs 

Offenders Offenders 

Using Alcohol Using Drugs ~ ~~ 

Murder 

Manslaughter 

Rape 

Assault 

23.6% 9.3% 

32.4 7.2 

24.7 6.8 

24.5 10.7 

However, given that prison inmates have been found 

guilty and are serving time, they have little to lose by admitting the use of an illegal substance. 

Despite the significantly higher correlation of alcohol 

abuse to crime, the fact that criminal justice policy decisions have focused on drug use rather than on alcohol 

abuse largely reflects public opinion. Similarly, the current 

focus on drugs is traceable to a shift in public opinion that 

was receptive to the relationship between drug use and 

crime that had always existed. According to James Burke, 

chairman of the Partnership for a Drug-Free America: 

America’s current drug problem had its beginnings in the 1960s. By 1988, the National Institute 

on Drug Abuse reported 68 million people between the ages of 12 and 54 had used illegal drugs 

once in their lifetime, almost 44% of the age 

group. Drug use had become so pervasive that it 

had become “normal” behavior. In the last five 

years, however, this country has gone a long way 

toward “de-normalizing” the use of illegal 

drugs-a fact that is often overlooked in all the 

attention given to drug-related crime.@ 

The current rejection by elected officials of drug use 

has meshed with the relationship between drug abuse and 

criminal behavior that has long been accepted by most 

criminal justice officials and treatment professionals. For 

drugs, as for alcohol, it is the effect of abuse in reducing 

effective functioning that is most responsible for criminal 

behavior. Drug abuse blocks the individual from taking action to establish a productive, law-abiding lifestyle. Those 

who work in the field also are concerned about a continuing cycle of crime being fed through the neglect of the children of drug abusers. 

U.S. Advisory Commission on Intergovernmental Relations 99 
Therefore, despite the overwhelming impacts of increased enforcement, most criminal justice officials and 

treatment authorities are concerned that legalization of 

drugs would only bring about more use, as it did with alcohol, and create more intractable problems. However, escalating criminal justice costs and the inevitable lack of 

success in stopping individual drug use may affect the tone 

of this public policy debate in the 1990s. 

The Effect of Alternative 

Law Enforcement Policies 

Federal drug policy and the actions of law enforcement, prosecutors, and judges in states like Virginia have 

placed heavy emphasis on using criminal sanctions to reduce the demand for drugs. Advocates of this approach 

point out that the large sums of money to be found in dealing drugs in the ghetto do not come from the ghetto. Drug 

dealin2 will be less attractive if this source of money is discouraged. This line of reasoning also notes that prosecuting only the dealers makes drugs a black man’s crime. 

There have also been pragmatic reasons to target 

drug users for arrest. New applications of forfeiture laws 

provide an incentive to arrest a drug buyer driving an expensive car? which can be confiscated because it was used in 

the commission of a illegal act. In addition, periodic political 

pressure to show an increase in drug arrests encourages ar- rests of unsophisticated buyers, who are the easiest targets. 

The debate about how best to deal with drug users 

need not be polarized between criminalization and indifference. Using the criminal justice system to leverage treatment can be a productive compromise. For example, prosecutors in Phoenix have worked with the 

police to conduct aggressive arrest campaigns targeted 

to social drug use. The user is allowed to participate in 

and to pay for the cost of a drug treatment program in 

lieu of being tried. The cost is substantial, but it is less 

than the fine that could be charged if the arrestee were 

found guilty. Upon completion of treatment, thecharge 

is dropped and the offender is spared from having a 

criminal record. The Phoenix prosecutor believes it is 

particularly important that arrestees spend the night in 

jail before being released to emphasize the threat of 

criminal sanctions. 

The role of general government officials in this evolving policy field is, first, to provide enough flexibility within 

criminal statutes and ordinances to allow criminal justice officials to shape appropriate punishment options, and, second, to fund treatment options so that this flexibility does not 

become discriminatory against those unable to pay. 

The issue of discriminatory effects of any change in 

criminal drug policies has become a potent concern. Between 1983 and 1989, because of almost equal increases in 

the arrest of black non-Hispanics and of Hispanics, there 

was almost a 20 percent drop in the proportion of white non- 

~V~~tisiics among \a?, popUa.~~ns. This hause in the pro- portion of minorities is traceable directly to drug arrests, because white non-Hispanics comprised 38.6 percent of those 

being held in jail on all offenses in 1989, but they made up 

only 15.7 percent of those held for a drug 

Elected officials need to be sensitive to this unequal 

impact on minorities and assure themselves that policies dealing with drugs are neutral. Policymakers need 

to set clear drug treatment goals. If the goal is reduced 

cost to the taxpayers through client fees, then the programs will serve casual drug users who are still gainfully 

employed. If the goal is to achieve a high rate of “cure” 

and/or reduced drug use, then programs serving voluntary, non-criminal justice clients will be able to record 

the greatest number of successes. However, if the goalis 

to reduce criminal activity, then providing adequate 

funding, and locating programs where criminal activity 

is the highest are crucial strategies. 

Elected officials also must be ready to accept the pos- sibility of inadvertent bias. For example, a judicial 

roundtable discussion noted that prioritizing the use of 

limited treatment resources through the use of objective 

offender profile ratings would result in a “decrease in 

treatment options and opportunities for the poor black offender. Drug treatment programs generally show more 

success with educated participants than with undereducated.”” In another instance, a Minnesota state law, 

which was recently held unconstitutional by a county 

judge, provided a four-year sentence for first-time users of 

crack cocaine, but only probation for first-time users of co- caine in its powdered form. The judge’s ruling was based 

on the fact that 92 percent of those arrested on charges of 

possession of crack in 1988 were black, while 85 percent of 

those arrested on charges of possessing powdered cocaine 

were 

As noted in Chapter 1, the release of statistics at the 

beginning of 1991 indicating that casual drug use was down 

but that the number of hard core cocaine users had increased opened up new debate on the focus of the nation’s 

drug control policy. “Yuppies” may well have been 

reached by efforts such as the media-based Partnership for 

a Drug-Free America, which delivered approximately $1 

million worth of pro bono advertising per day in 1990 and 

was to continue for at least two more years. They also may 

have been intimidated by middle-class fears of being 

jailed. But, as noted in Chapter 3, criminal sanctions 

shaped by middle-class values are not necessarily intimidating to those from crime-ridden areas. 

Tracking the Severity of the Drug Problem 

Controversy over the success of the war on drugs is 

heightened by difficulties in measuring the incidence of 

drug use. A much-needed tool to track actual use by of- fenders has recently been spurred by federal coordination 

efforts. Heretofore, most criminal drug-use information 

has been subject to the vagaries of self-reporting byarrest- , 

ees and could not be compared or compiled across lurkdictions. In 1987, the National Institute of Justice began 

the Drug Use Forecasting (DUF) program in New York 

City. By 1990,23 cities had entered the program, all using 

the same methodology to obtain a statistically valid sampling of voluntary and anonymous urine spekmens andhterviews from new arrestees. The following summary i 

representative of the previously unavailable informatioi 

that can help officials make informed decisions: 

100 U.S. Advisory Commission on Intergovernmental Relations 
During the first quarter of 1990, more than half 

the malearrestees testedpositivefor adrug at the 

time of arrest, the range was from 57 pcrcent in 

Kansas City to 80percent in Philadelphia and San 

Diego. Among female arrestees, the range of 

drug use was 44 percent in San Antonio to 88 percent in Cleveland. Multiple drug use was highest 

among male arrestees in San Diego (50%) and 

Chicago (46%), and among females in Portland 

(36%) and San Diego (34%). Cocaine use among 

male arrestees was higher than the use of any other drug in all cities but Portland, Indianapolis, 

Denver, Phoenix, and San Antonio. In those 

cities, marijuana was the most prevalent drug. 

Cocaine use was the most prevalent drug among 

female arrestees in all DUF cities, excluding Indianapolis and San Dieg~.’~ 

The availability of this type of information will help the public and policymakers sort out the unique situation in their 

community from national coverage and help support policy 

decisions on the need for and effect of expanded drug treatment services focused on the criminal justice system. 

Using the Criminal Justice System 

as the Gateway to Treatment 

Of course, not all drug abusers will be found in the 

criminal justice system. According to a 1990 report from 

the National Institute of Medicine, 

about one-fifth of the estimated population 

needing treatment-and two-fifths of those 

who clearly need it-are under the supervision 

of the criminal justice system as parolees, probationers, or inmates. Overlap with the homeless estimates and expectant mothers would 

make the number higher. . . . Half or more of the 

admissions to typical community-based residential and outpatient drug treatment programs (except perhaps methadone) are on probation or parole when they enter treatment.74 

However, it is true that the largest single group of serious 

drug users in any locality come through the criminal jus- tice system every day. “The criminal justice system could 

be a gateway to treatment,” according to EricD. Wish, director of the Center for Substance Abuse Research at the 

University of Maryland. “Prisoners in urban jails who are 

cocaine users could be ushered into treatment facilities at 

a fraction of the cost of irnpri~onment.”~~ 

Elected officials, who want to use the opportunity 

presented by a person being caught up in the criminal justice system as leverage to get him or her into drug treatment and-even more importantly-to increase the odds 

that the person will respond to treatment, need to be 

aware of the crucial role they play in the following areas: 

Availability of Treatment-General government dollars will have to be appropriated to subsidize the cost 

of treatment for many hard-core users, as well as to 

provide adequate treatment slots, 

Location of Treatment-Unfortunately, this too often becomes a major policy decision rather than an administrative detail. Treatment programs need to be 

located where the offenders are: in the community, in 

jails, and in pre-release prison facilities. There is a high 

level of resistance to treatment among most substance 

abusers and, especially in the early stages, they will not 

make extraordinary efforts to get to treatment. 

Length ofTreatment-The Institute of Medicine’s review of the effectiveness of drug treatment programs 

identified the length of time in treatment as the highest predictor of success. Budget decisions that are 

based on assuming that a 60-day cure will do the job 

may, in fact, waste resources. 

Coordinated Treatment- Again, because the abuser 

is typically resistant to treatment initially, disparate 

signals from “The System” are used as opportunities 

to slip through the cracks. Elected officials represent 

the ultimate authority to require interagency cooperation if it does not come from within. 

Consequences-The claim that individuals forced 

into treatment by the criminal justice system will not 

be successful has not been borne out by re~earch.’~ 

Very few individuals go into substance abuse treatment without pressure, such as loss of job, marital 

breakup, or the pleading of family or friends. If, instead, 

the threat is jail or prison, then the criminal justice system must be able to carry out that threat or crucial leverage will be lost. General government officials have 

the responsibility to provide that incarceration capacity. 

Several of these areas involve significant subissues that 

warrant additional discussion because of their intergovernmental, interbranch, or interagency ramifications. 

Availability of Treatment. The availability of adequate 

treatment is first and foremost a funding problem, whatever the source of funds. Historically, there has been significant intergovernmental involvement, both as a revenue-sharing issue to address the high need for services in 

low-income areas and as means to provide program oversight in a rather sophisticated field. 

Less than 30 years ago, it was generally accepted that 

drug addiction was incurable.77 Nevertheless, during the 

1960s and into the 1970s, many programs with claims and 

counterclaims sprang up. To help policymakers throughout the country sort through this picture, the federal government through the National Institute on Drug Abuse 

(NIDA) launched the first of three national studies on the 

effectiveness of drug treatment programs. The first was 

the Drug Abuse Reporting Program (DARP), which examined outcomes for 44,OOO clients entering 52 NIDAsupported drug abuse treatment agencies in the years 

1969-74, with follow-up for up to 12 years. The second was 

the Treatment Outcome Prospective Study FOPS), which 

interviewed more than 11,000 drug users when they first 

entered treatment in 1979, 1980, or 1981 in 41 selected 

programs, with follow-up for up to five years after leaving 

treatment. A third national study, the Drug Abuse TreatU.S. Advisory Commission on Intergovernmental Relations 101 
ment Outcome Study (DATOS), is scheduled to assess 

outcomes for programs in the 1990~~~ 

The results of theTOPS study were published in 1989. 

The heart of its findings was that: 

[Wlhat distinguished positive outcomes was the 

length of time spent in treatment. A minimum of 

three months was necessary to produce positive 

changes; beyond those first three months, outcomes improved with time spent in treatment. 

Duration of treatment and satisfactory completion were more useful predictors than other client characteristics.79 

This finding has significant implications for on the 

typical government cost-containment discussion to limit 

the time spent in any type of treatment program to 60days. 

(This arbitrary number has gained usage because it is the 

amount of time for which the typical private insurance 

policy will cover in-patient treatment.) The TOPS study 

indicates that such limited programs may simply waste resources. The most successful treatment results involved 

six to 12 months.8O 

Equally significant as an intergovernmental issue was 

the report’s commentary that: 

[The period of time studied, 1979-811 marked the 

culmination of a decade of intense federal, state, 

and local efforts to design, implement, and sustain a comprehensive system of drug abuse treatment programs throughout the United States.. . . [It became] a benchmark for the effectiveness of 

drugabuse treatment.. . . Afterthe OmnibusReconciliation Act of 1981 established block grant 

funding of programs through the states, this comprehensive system received less attention and 

support, resulting in diminishing public expenditures for treatment in the 1980s.8’ 

The TOPS report notes that in 1979-81, the averageannua1 cost per client for treatment in the outpatient drug-free 

programs was $2,000. It was $1,945 for outpatient methadone and $6,135 for residential treatment. “Comparison 

with current data reveals that expenditures for drug abuse 

treatment have decreased since the time this study began. 

This suggests that the quality of treatment may have deteriorated since the early 1980~.”~~ 

This does not mean that the number of people being 

treated has declined. In fact, from 1987 to 1990, public 

treatment slots climbed from approximately 800,OOO to 1.5 

million, according to the Office of National Drug Control 

Policy. The resulting conflict between the constraints of 

public budgets and treatment research findings, such as 

TOPS, was bluntly stated by Peter Reuter of RAND, “Basically, what we did in the 1980s was greatly increase the 

number of people treated but lower the quality of the 

treatment. Most experts would say it is less important to 

cycle more and more people through treatment than to 

provide them with services that are worth a damn.”83 Congress has considered but not passed legislation that would 

link federal money to requirements that statesbe held accountable for the quality of drug treatment plans. 

It would appear that the demand for more treatment 

slots will continue to compete with adequacy of treatment 

for limited budget dollars well into the 1990s. The backlog 

of need in the criminal justice system is a serious problem in 

many areas. For example, waiting lists mean a delay of three 

to six weeks in getting probationers into treatment in Maryk1nd.8~ It sometimes takes up to six months for parolees to be 

admitted to a substance abuse program in New Jer~ey.8~ 

In response to a provision in the Anti-Drug Abuse Acr 

of1986, a 1990 National Institute of Medicine report confirmed the lack of treatment slots and deterioration of the 

quality of treatment. The report’s findings had a heavy 

criminal justice emphasis. It not only called for significant 

increases in the quality of drug treatment and an aggressive outreach to expectant mothers, it also recommended 

that the number of probationers treated be doubled and 

that the number of prison inmates in treatment be increased by 50,000 daily. The estimated annual cost of the recommended total package was $2.2 billion. The 1989 cost of 

the corrections component was estimated at over $800 million ($660 million to increase the daily treatment enrollment 

of probationers or parolees by 132,000 at a cost of $5,000 each 

and $156.3 million to increase daily prison treatment enrollment by 50,OOO at a annual cost of $3,125 each.)86 

Recently, the federal government has begun again to 

increase funding for drug treatment through discretionary 

grants under the federal war on drugs. The Office of 

Qeatment Improvement of the Alcoholism, Drug Abuse, 

and Mental Health Administration (ADAMHA) is implementing treatment demonstrations totaling $8 million for 

FY 90 and $16 million for FY 91. From 1987 to 1989, the 

Bureau of Justice Assistance provided $10 million in discretionary funds to drug rehabilitation programs for people under penal controP7 (see Figure 4-7). 

However, as articulated by former Attorney General 

Richard Thornburgh, this funding is “designed to promote 

innovation and foster improvement in the nation’s rriminal 

justice system. It is our federal role to try to get the thinking 

going, to support demonstration projects to see if we’re on 

the right track, to evaluate what’s right and what’s wrong 

with the project, and then to get the word out to those of you 

in state and local government.”88 The federal funding is not 

intended to support the ongoing cost of treatment. 

Therefore, the remaining 98 percent of the Institut 

of Medicine’s annual $750 million criminal justice pric 

tag looms large over state and county governments. I 

criminal justice drug treatment was funded in the samt 

way that the general population’s drug treatment needs 

are funded, then only 33 percent of these funds would 

come from state and local governments, while 27 percent 

would be from third-party insurers, 23 percent from the 

federal government, and 17 percent from private individuals and charitiesa However, the vast majority of thecriminal justice need is among working-age males, who consequently are not covered by Medicaid. Of the small 

percentage who are employed, most are in low-wage jobs 

without Comprehensive health insurance. 

The intergovernmental challenges of budgeting will 

be discussed in greater detail in Chapter 7. It is important, 

however, for elected officials to have this picture of the 

102 U.S. Advisory Commission on Intergovernmental Relations 
Figure 4-7 

Federal Anti-Drug Abuse Expenditures for Treatment, Prevention, and Criminal Justice 

1969 197 1 1973 1975 19?7 1979 1981 1983 1985 1987 1985 

Source: Dean R. Gerstein and Henrick J. Hawood, eds., Treating Drug Problems (Washington, DC National Academy Press, 

1990), p. 216. 

magnitude of the funding challenge in order to assess the 

potential for improving criminal justice drug treatment. 

Consequences for Non-Participation. Drug testing of probationers and parolees is a hot issue in criminal justice. 

The heat results because most elected officials, judges, 

and prosecutors think it should be done, but correctional administrators don’t do it. On the face of it, it appears to be a 

classic example of interbranch conflict. Although studies do 

not show that drug testing has any more effect on hard-core 

users than DUI laws have on alcoholicsPO the lack of testing 

and/or lax testing by corrections officials does not reflect dis- agreement with the policy. It more commonly reflects the inability to do anything about negative results. 

President George Bush proposed that drug testing be 

implemented throughout the criminal justice system. The 

rationale behind this policy is well stated by the Office of 

National Drug Control Policy: 

I 

Probation and parole are excellent points at which 

to hold offenders accountable for staying off 

drugs. . . . It is a cost-efficient way to keep offenders 

off drugs during the critical period immediately fol- lowing release from incarceration. Testing of pretrial defendants permits early identification of 

those defendants who may need drug treatment?’ 

However, such a federal policy would add still another 

element of controversy to drug testing, thrusting it into 

the forefront of the debate on intergovernmental mandates. According to the National Conference of State 

Legislatures, the cost of implementing drug testing 

throughout the criminal justice system is estimated to 

be over $10 billion. “Such a new investment at the state 

level would equal the total of all state expenditures for 

corrections for the fiscal year 1989.’s2 

As the examples in the focus (page 104) illustrate, 

funding increased detection without funding the expected 

consequences presents the same dilemma to elected officials in drug testing as in coordinating the criminal justice 

system as a whole. Given limited resources, where does 

the balance belong: in catching more wrongdoers or in ef- fectively dealing with those who are caught? There are numerous officials dealing with criminals-including judges, 

prosecutors, and corrections personnel-who believe that 

unless we do the latter, we are wasting resources on the 

former; only if there are consequences for noncompliance 

can the criminal justice systembe an effective leverage for 

treatment. In a New York State study, it was reported that 

many offenders prefer a short jail sentence to treatment. 

“Abusers wish to avoid the ‘hassles’ associated with chang- ing their lives.’*3 (See focus study, page 105.) Only when 

the alternative is lengthy incarceration are the abusers 

more willing to enter drug treatment. This reaction makes 

a strong case for ensuring that the criminal justice system 

has the penal resources to give teeth to orders that probationers or parolees participate in treatment, especially 

combined with the TOPS findings that: 

(1) The criminal justice client stayed in treatment 

longer than the client with no criminal justice 

involvement. 

U.S. Advisory Commission on Intergovernmental Relatlons 103 
Focus 

System Impacts of Drug Testing 

The costs of drug testing are driven by several factors. One is the reliability of drug testing because punishment based on unconfirmed test results can be challenged. The level of monitoring affects costs because the 

more drugs that are to be tested for, the more costly the 

analysis. In addition, costs are substantially higher if 

testing is to detect use rather than only abuse. Finally, 

“the cost of testing must include the costs of follow-up 

and treatment, since testing without follow-up treatment or supervision would waste the resources applied 

to testing.” 

These system-wide costs are usually prohibitive. For 

example, the cost estimate by the Colorado Legislative 

Council for a bill that specified a loss of 15 days good time 

for anyone testing positive and revocation of probation or 

parole for a third positive test included 340 additional 

treatment beds, 100 prison beds, and more than 100 probation officers. In Pima County, Arizona, pretrial drug testing 

led to a 70 percent decrease in people being released on 

their own recognizance and a tripling of those who had to be 

supervised by probation officers on conditional release. In 

addition, if arrestees may be released at any hour, trained 

specimen-collection staff should be on duty 24 hours, otherwise, jail facilities may be affected. 

The California Blue Ribbon Commission on Inmate 

Population Management reported an even more magni 

fied impact of drug testing on the rest of the criminal justice system: 

[Tne California Department of Corrections] 

CDC, [the California Youth Authority] CYA, 

and local corrections should immediately develop and implement a state and local corrections 

substance abuse strategy to systematically and 

aggressively deal with substance abusing offenders while they are under correctional supervision, 

because this is perhaps the most significant contributing factor to prison and jail overcrowding. 

[Plarole agents and probation officers increasingly test parolees and probationers for drug use. 

However, there are limited options for parole 

agents to use other than returning a parolee to 

prison when drugs are detected. Once incarcerated, the problems of substance abusers are not 

being addressed. Although the percentage of parole violations involving drugs has remained relatively consistent over the past three fiscal years, 

the overwhelming increase in the number of parole violations overall drives this major factor in 

prison population increases. . . . Drug violators 

increased from 850 in 1980 to 18,700 in 1988, exceeding technical violations for the first time. 

Sources: Testimony of Slate Senator Bill Richardron on Behalf of the National Conference of State Legislatures before the Committee 

on Government Opemtwns, Subcommittees on Legislation and National Security, and Government Information, Justice and 

Agricullure, US. House of Representatives (Washington, DC National Conference of State Legislatures, May 2, lw), p. 

2; Colorado Legislative Council, Committee on Criminal Justice, &port to the General Assembly; and (Ca1ifomia)Commission on Inmate Population Management, Final Report (Sacramento, January 1990), - - p. 77. 

(2) The length of time in treatment was the greatest ment episodes, have less serious drug abuse patpredictor of success. terns, and be more criminallvactive. (It shouldk 

(3) Substantial decreases in criminal activity were 

Coordinated Treatment. If for no other reason than to 

save resources by not funding duplicative bureaucracies, general government officials may have to serve as 

the catalyst for interagency cooperation. However, if 

they find that lack of cooperation stems from valid program concerns, it also may fall to them to arbitrate the 

splitting of responsibilities to achieve appropriate accountability. The challenge to policymakers is not to let 

administrative in-fighting divert efforts away from what 

should be the goal: to reduce crime by more effective 

treatment through whatever agency. 

Whoever is responsible for drug treatment programs, 

the structure should recognize the following differences between rriminal justice referrals and other clients: 

Clients who are involved in the criminal justice 

system when entering treatment are more likely 

to be male, young, have no prior drug abuse treatfound. 

noted here that there was no signifkant difference in post-treatment criminal activity between 

those referred by the criminal justice system anc 

those who were not.) 

Parolees initially may appear to be particularlyresistant to treatment. They have, after all, general. 

ly been “sober” for a lengthy period of time while 

incarcerated. Especially in overwhelmed comrnunity treatment centers, this attitude may not be 

effectively challenged because of the more visibli 

problems of active ~sers.9~ 

Relatively worse outcomesfor criminal justice referrals were found for depression, unemployment, or other behaviors.,Those free of such serious difficulties stand a much better chance of 

successfully completing treatment?’ 

m 

The last two factors were addressed in the conclusion 

3f a study by the National Institute of Drug Abuse that, 

104 US. Advisory Commission on Intergovernmental Relations 
Focus 

New York Multi-Agency Collaboration 

In 1986, Assemblyman Melvin Miller proposed a $1.3 milon budget amendment to provide resources to four state agenies to address a “chronically neglected criminal justice and 

rime control issue-the relationship between alcohol, drug 

buse and crime.” The agencies were Corrections, Parole, Subtance Abuse Services (DSAS), and Alcoholism and Alcohol 

ibuse (DAAA). Noting a history of difficulties in collaboration, 

he legislation designated that there be an outside group to help 

3cilitate the interagency approach envisioned and to evaluate 

he effectiveness of the program once it became operational. 

The Vera Institute of Justice was selected, and the followng we history draws from its interim reports in 1987,1988, and 

989. This summary highlights resistance to interagency collabration. This is not meant to discourage similar initiatives; intead, it is presented as assurance that resistance can be overome. In addition to this New York program, New Jersey’s Muual Agreement Program and Oregon’s Cornerstone program 

ire further examples of successful interagency collaboration. 

In the initial planning meetings of what came to be called 

ACCESS,” the division of budget and key legislative committee 

taff were present. Initial interagency tensions were reported high: 

Budget worried that funds appropriated for the demonstration would disappear into agency operations already 

in place, and would thus fail to spark visible and incremental activity. The drug and alcohol agencies were unenthusiastic about finding themselves legislated into 

roles as subcontractors to a criminal justice agency (Parole); they also made it clear that their funding of voluntary agencies in the community did not give them unambiguous leverage over these providers’ private triage decisions. Corrections wanted more flexibility about how 

to spend its share of the appropriation than the budget 

bill appeared to permit. And differences brewed about 

which agency-Parole or Corrections-would employ 

the initiative’s coordinator. 

Concerns such as these did not automatically disappear. 

For example, one goal of the legislation was to provide joint 

training so that all players would be speaking the same language 

and be responsive to agreed-on treatment goals. Parole officers 

needed to know “how to evaluate treatment options in ways 

likely to afford a match between parolee and provider,” and 

providers needed to know “how Parole operates and the special 

demands made on individuals under Parole supervision.” Given 

the combined drug and alcohol abuse problems of many offenders, 

training also was to “foster communication across conventional 

turf and to seek to develop a “team approach” for the interagency 

staff who are setting up the pre-release treatment program.” 

Nevertheless, at the end of the first year, the joint training envisioned in the legislation was structured so that parole officers 

would hear from one agency one day and from another the next. 

Furthermore, the legislation established two new positions 

in both DSAS and DAAA to be contracted to Parole. DSAS recruited two counselors at grade levels higher than the funding 

provided, but DAAA decided to forgo the opportunity to fill its 

two new positions-thus relinquishing “no small advantage in a 

bureaucratic, civil service environment where establishing ncw 

positions for new programs is difficult indeed.” To fill the void, 

Parole expanded its own staff by two individuals, whom DAAA 

agreed to train. 

The loss of not having personnel in the DAAA chain of command was real in trying to get parolees into community services: 

The active presence of DAAA within the Parole asses- sment and referral service was viewed by the framers of 

the initiative. . . as providing an important source of 

leverage with which to gain access to communitybased alcoholism treatment providers who have not been 

eager to find room for offenders or parolees. These 

providers are largely licensed under mental hygiene law by 

DAAA, and almost all of them are subsidized by State dollars allocated by DAAA. That circumstance would make a 

DAAA employee (or an employee of the local govemment unit that funds alcoholism treatment agencies)much 

more likely to get the attention of a provider than are parole officers, no matter how well-trained. 

In addition, as the program became operative, the ACCESS evaluation team made fewer referrals to alcohol treatment, perhaps because of the imbalance of experienced drug treatment professionals over the parole employees who were simply in alcoholism. 

The explanation for the alcoholism agency’s reluctance to 

participate in the team approach, in contrast with the drug 

abuse agency going beyond what was required, is in part reflective 

of problems that arise around different treatment philosophies: 

Many AA-oriented counselors view TCs (therapeutic 

communities) as not abstinence-based and thus believe 

these programs have the potential to yield disastrouseffects with individuals who have had AA or NA treatment. Others suggest that the models have converged 

in recent years . . . [and that] these programs’ approaches to actual treatment may vary less than their 

stated conceptual differences. . . . In any case, it is clear 

that AA and TC approaches have important symbolic 

and historical differences. 

This tension betwen professional treatment orientations existed 

within Corrections as wel as between agencies, leading the Vera 

Institute to observe in its 1987 evaluation that a greater understanding of the core program and a greater sense of “ownership” 

of the program by the feeder prison sites needed to be fostered. 

As indicated in the beginning of this discussion of interagency challenges in the ACCESS program, these barriers can 

be broken down: 

Giving the initiative’s central concepts a chance to become real, over the past three years, has confirmed the 

virtue of patience. . . . The four State agencies have 

forged the long-sought but previously unrealized col- laboration that was properly viewed as prerequisite to 

the development of post-release treatment that actually 

reaches parolees and is responsive to their special 

needs. 

It is important, however, to undersoore the role that alert political 

leadership played in surmounting such interagency resistance by 

legislating ongoing oversight and an outside negotiator. 

Sources: Vera Institute of Justice, Alcohol, Dnigs, aiid Ginie: An Interim Report on New York State’s Interagency Initiative (New York, 

1987), pp. 1, 25-26, 65, and 67; Alcohol, Drugs, and Crime (1989), p. 2. 

U.S. Advisory Commission on Intergovernmental Relatlons 105 
especially for criminal justice referrals, greater emphasis 

needs to be placed on reintegration into society once addiction is controlled, through meaningful vocational and 

employment services and post-treatment support 

groups.9‘j As emphasized in the National Academy of 

Sciences’ critique at the beginning of this chapter, money 

spent on drug treatment will have a higher return if it is 

part of a multifaceted approach. 

There are some who advocate that program delivery 

must be in the hands of correctional officials if the program is not to become a “poor cousin” in agencies serving 

noncriminals. Others believe that making use of existing 

expertise is the only way to get adequately trained treatment professionals involved in meeting criminal justice 

needs. There does not appear to be one “right” answer. 

For example, Ohio’s Governor’s Committee on Prison 

and Jail Crowding recommended that the Department of 

Alcohol and Drug Addiction Services move aggressively 

to certify existing community corrections programs as 

drug treatment programs. This is as much to engage non- criminal justice agencies in the improvement of services 

provided by correctional personnel as it is to capitalize on 

the much higher awareness among correctional administrators of the need for treatmentP7 

What is important is that there be an accountable 

criminal justice advocate involved in any treatment program, to be a reminder that the order of the court is seri- ous and to advocate services relevant to the offender. 

Drug treatment agencies are not much geared, 

understandably, to relapse prevention. [Of- fenders] don’t need detox at release, but many 

are desperate in their need for help in staying 

sober under the stress of community re-entry.. . . No one isbetter positioned than [a parole agent 

with training in substance abuse] to campaign 

for a treatment response that is tailored to suit 

parolees in such straits.’48 

In addition to lack of comprehensive program development, another factor that can undercut treatment effectiveness is conflicting messages to the offender. These mixed signals start when arrest is not followed by a commensurate 

court response. As the National Center for State Courts’ 

“Large Court Capacity Increase Project” notes, 

A major problem for courts handling drug cases is 

the lack of dispositional options available to 

them. A law enforcement-based strategy can produce lots of arrests but doesn’t adequately address what is to be done with drug abusers once 

they are in the criminal justice system. . . . [Llegislated mandates, such as drug testing and incarceration, “gridlock” courts but do not necessarily get 

people into needed treatment.99 

Conflicting messages also may occur when sentencing 

is not cognizant of professional treatment practices, as 

noted in the Washington Metropolitan Council of Governments’ focus. Even when the offender cares, he or she 

ends up not knowing which “authority” to please. In addition, as the Vera Institute noted in commenting on New 

York’s ACCESS program, conflicting treatment approaches unfortunately become the “hook” an abuser can 

use to reject treatment. In the extreme, conflicting ideas 

of treatment can reach constitutional proportions, as in a 

Maryland Court of Appeals ruling that a judge may desig- nate the type of facility, but not a specific facility. The 

court observed that: 

It is difficult to perceive how the functions of DJS 

[Department of Juvenile Justice, an executive 

agency] could be properly fulfilled if it could not 

control the monies appropriated to it. It is DJS, 

not the court, that is charged with administration 

of the State juvenile, diagnostic, training, deten- tion, and rehabilitation institutions. . . .Whether 

DJS has funds available begs the question. It may 

well determine that the monies would be better 

spent elsewhere to serve the purposes clearly an- nounced by the legislature.’00 

The judge who presided in two of the three cases that had 

been appealed maintained, “I still think that this court has 

as a duty and obligation to do that which is in the best inter- est of the [child]. . . .”lol 

Summary 

Dealing effectively with the potential next generation 

of adult criminals as they pass through the juvenile justice 

system and treating substance abuse in all criminal offend- ers are not only high priority issues in themselves, but they 

also present microcosms of major governmental issues in- volved in any treatment program. For effective reintegra- tion and long-term results, services must be provided in 

the local community. This is true even when treatment is 

initiated while the offender is incarcerated. Criminal jus- tice policies and treatment policies must be examined to 

determine (1) who is being reached, and (2) if these repre- sent priority groups. Noncriminal justice agencies need to 

be used as powerful allies, but they seldom readily accept 

the additional workload. Finally, communication between 

criminal justice and general government officials and pro- gram managers is essential to address differing expecta- tions and develop realistic expectations. 

Specifically, willingness to support treatment alterna- tives will be sustained only to the degree that it is understood by elected officials, criminal justice authorities, , 

treatment professionals, and the public that: 

1. 

2. 

3. 

Success is possible, but the ability of profes- sionals to change addictive behavior or parenting voids is at least as limited for criminals 

as it is for noncriminals. 

Simply by ensuring longer participation, criminal justice sanctions can improve the results of 

any treatment or training program.However, 

participation is affected directly by the opacity 

of the system to cany out the threat of incarceration for nonparticipation. 

Changing dysfunctional and nonproductive 

behaviors while the person is under penal 

106 U.S. Advisory Commission on ’-*-*--mmentaI Relations 
Focus 

Metropolitan Washington Council of Governments Judicial Seminar 

In January 1990, the Metropolitan Washington Council of 

Governments held a two-day Drug Awareness Seminar for 

Judges, funded by grants from the State Justice Institute and 

the federal Bureau of Justice Assistance. The agenda was set 

according to the judges’ interests based on a questionnaire. 

High on their list was learning about what drug treatment alternatives were available in their region. Therefore, they were receptive to having a dialogue with the treatment providers and 

probation officers invited to attend. 

The judges were most interested in effectively implementing their sentencing options. The providers were anxious to 

open a dialogue to foster a better understanding of addictive 

and recovery processes. As one provider observed, “The size of 

the problem, the waiting list in every jurisdiction, the uneven 

distribution of services, when coupled with the nature of the illness all make effective treatment much more difficult and certainly makes communication among us, at times, less than effective.” [emphasis added] 

The comments that follow have been drawn from the evaluation report of this seminar. They demonstrate the need for 

greater understanding between the court and treatment agencies. They also underscore the importance of surfacing this 

need by direct contact between key players. 

A judge: “My experience has been that short-term [drug and 

alcohol treatment] programs don’t work.” 

Response: “Many short-term programs are quite effective. 

What often breaks down is the failure to ensure an adequate 

aftercare treatment component.” 

A judge: “What is the incidence or reliability of sendinl 

someone in for an evaluation and having you evaluafe that 

person and coming up with a treatment plan that really turns 

out tobe the right treatment plan even if that person engages 

in it or not? Is your evaluation reliable?” 

Response: “It’s not that good yet, judge. We are working hard 

on assessment. . . .” 

Judge: “This puts us is a terrible position. You tell us to put 

him in a particular program and we go with it and it turns out 

to be the wrong program.” 

Response: “This is why I prefer that you use your sentencing 

authority to sentence the offender into drug treatment. The 

drug treatment personnel in conjunction with the court will 

decide what that will be.. . . That allows the offender to make 

it orbreak it. Ifthey can make it in outpatient treatment after 

detox, great! If they can’t, then they are still court mandated 

into treatment and you can try something else.” 

A judge: “I’m a judge and I’m not a treatment professional 

and that’s the real problem. You’re asking me to make a determination which is better made by a treatment professional.” 

Response: “That’s right! And I would ask you not to make 

that determination. . . .” 

A judge: “My experience has been that some treatment programs refuse to.. . follow what you order and want to do what 

they want to do instead. It really raises the big question 01 

who should be making that final decision. Should the health 

care professional make that decision or should the judge 

make that decision after considering the recommendation 01 

the health care professional?” 

Source: Metropolitan Washington Council of Governments and Metropolitan Washington Court Administration Conference, 

Drugs and the Judicial Response: Dntg Awareness Seminar for Judges in the Metropolitan Washington Regibn: Evaluation Re- port, by Ronald I. Weiner (Washington, DC Metropolitan Washington Council of Governments, January 1990), pp. 20,23-26. 

control can improve the goal of criminal 

sanctions to stop further criminal acts. 

4. However, most criminal offenders have a variety of dysfunctional behaviors and conditions (e.g., lack of education, lack of job skills, 

lack of employment opportunity, lack of family or community support, in addition to substance abuse). This reduces the chance of 

long-term success from any program that attempts to change only one of the conditions. 

It takes political courage to initiate such a dialogue on 

the chances of success. However, many elected officials 

realize that it must be done. The mayor of Macon, Gcorgia, is one such example. He distributes a brochure prepared by his office on coordinating community resources 

to fight the war on drugs with the following message: 

The drug problem is so widespread that it is unrealistic, indeed futile, to expect immediately 

identifiable results or improvements. Short-term 

indicators of progress can be measured by the 

number and types of tasks successfully completed. . . . Long-term indications of success such 

as reduced numbers of drug-related crimes or decreases in the number of drug users and dealers in 

the community will take longer to realize.lo2 

The admonition of the mayor’s message would be the 

same if all references to drugs were removed. Reducing 

criminal activity through educational, employment, substance abuse, mental health, or juvenile programs is possible, but it requires a long-term, comprehensive effort. 

GOVERNMENTAL 

AND INTERGOVERNMENTAL 

POLICY CHALLENGES 

Determining who can be in the community rather 

than in jail or prison is at the heart of creditable alternative sanctions, sentence reductions, or pretrial release. 

Making this policy call is seldom in the hands of any one 

US. Advisory Commission on Intergovernmental Relations 107 
individual or unit of government. Therefore, even if a rational basis can be developed for a change in policy, intergovernmental communication is crucial to carry it out. 

Unfortunately, as the Baltimore Bar Association observed in its review of the criminal justice system: 

There appears to be a lack of communication between governmental entities, executive and judicial, in almost all directions. The observation applies to relations between the Mayor and the 

Circuit Court, the Circuit Court and other components of the criminal justice system, the City 

and State, and among and between City and State 

agencies concerned with the war on drugs.‘03 

Creating the public climate to try alternative sanctions is only part of the battle. It must be matched by numerous supportive internal changes. In some systems, 

overload has served as a catalyst for change. In others, 

overload has served to block change. Reducing criminal 

behavior can get lost in the press of processing cases, housing inmates, or stretching available dollars or, as it is sometimes more succinctly stated: “When you’re up to your 

neck in alligators, it is difficult to keep your mind on the 

fact that your primary objective is to drain the swamp.” 

However, overload has merely exacerbated traditional reasons for reluctance to cooperate in supporting alternative sanctions. Overload is not at the core of the problem; rather, the established impediments include: 

The constitutional isolation and narrowly focused 

missions of judges, prosecutors, public defenders, 

and police; 

The tendency of treatment professionals to see 

their mission and clientele confined to “regular” 

people and lack of acknowledgment that once a 

person commits a crime, he or she is still their responsibility; and 

The fact that most alternative sanctions must be 

sited locally to be effective. Even well-versed 

local officeholders have resisted any shift away 

from sending people to prison if it is regarded as 

simply a shift of a state burden to their local budget. Other public officials may simply be coming 

to the defense of constituents who object to having “criminals in their community.” 

Such intergovernmental conflicts, along with budget considerations, will be taken up in the following subsections, 

which focus on how alternative sanctionsfit within general 

government concerns. 

Integration of Criminal Justice 

and General Government 

Less than 30 percent of prison populations and 40 percent of jail populations have completed high school; most 

were not employed full time before arrest; over threequarters report using illegal drugs; and more than onethird drank daily during the year preceding their arrest.lo4 

These and other factors, such as mental health problems, 

underscore the need to resolve the issue of the responsibilities of general government agencies versus developing rehabilitation programs within the correctional system. The most 

productive resolution of this conflict for each state and locality ultimately rests with general government officials. 

The National Association of Counties’ Public Safety 

Committee recognized the role to be played by general 

governments in its December 1990 statement that counties must focus theirjustice efforts on implementing three 

major principles to foster coordinated delivery of services 

in the community: 

In addition to front-end investment in youth, 

Counties need to develop strategies and “team” 

approaches that deal with the whole person; and 

local government can be the catalyst for the delivery and coordination of comprehensive services 

and need to assure opportunities for health, shelter, education and employment needs.lo5 

The need for general government services to be provided to offenders in the community also has been underscored consistently by national research. For example, in 

1976, the report of the Comptroller General of the Unitec 

States on probation noted a “highly significant statistica 

relationship between the extent to which probationers received needed services and success of probation.”lo6 

In 1981, the National Academy of Sciences reaffirmed its 

conviction that 

rehabilitative efforts will have to be more extensive, multifaceted, and better integrated. . . . Much of what is labeled “community-based cor- rections” continues to be societal casework carried out in probation and parole departments. 

The involvement of educational, welfare, and 

community action organizations in devising rehabilitation programs has been limited.’O’ 

Most recently, the 1990 U.S. Sentencing Commission’; 

discussion of intermediate sanctions concluded that: 

Whenever possible, using such community re- sources is more desirable as it avoids duplication of 

services and allows the participant to be connected 

with a resource that will continue to sewe hisher 

needs after legal obligations . . . are cornpleted.lo8 

Reducing Turf Protection 

The reluctance of general government agencies to 

meet criminal justice needs stems from several sources. 

First, criminals are often regarded as disruptive to agency 

efforts to work with more responsive or easier cases. Sec- 1 

ond, criminal justice goals may differ from the professional judgment of the outside treatment providers. Third, it is 

usually to the agency’s advantage to concentrate its resources on a clientele that commands greater public sup 

port. All of these could be lumped under the familiar tern 

turf protection. Agencies have loyalty to their ongoing 

commitments, they do not like to have their professional 

judgment questioned, and they must set priorities in their 

budget battles. 

108 U.S. Advisory Commission on intergovernmental Relations 
Before elected officials can change these attitudes, 

they need to be sure that their policy oversight does not in 

fact exacerbate them. To the degree that elected officials 

regard criminal justice issues as separate and apart from 

other programs, they will be interested in other measures 

of treatment success only if new criminal activity also has 

stopped. A sober, literate criminal is still a criminal. 

The alternative is for general government officials to 

hold treatment providers accountable only for that aspect 

of the criminal’s behavior that they are equipped to handle 

and not to expect that one initiative will solve the multifaceted causes of crime. In addition, budget support may be 

required to address the strong feeling of most treatment 

providers that they should not be responsible for security. 

Not only are they not qualified or trained to do so, but 

many feel the negative aspects of the authority they must 

assume interferes with their treatment role. The budget 

impact of double staffing for treatment and for surveillance may have to be faced. 

Further perspective on bridging the gulf between 

treatment providers and criminal justice policymakers is 

contained in the following advice to judges and treatment 

providers on establishing alternative sanctions: 

[S]uccessful programs emphasize: integrity-remain committed to the goals, the vision, and processes agreed to . . . openness-create access and 

let people in authority know about the program 

so that they can buy into it. . , [and] political support-make sure that friends are sought from the 

legislative and executive branches to help fund 

and protect the program’s integrity.lW 

The more that general government officials communicate 

that they expect a focus on program integrity and/or are 

receptive to providers communicating this integrity to 

them, the greater the chance that confidence in alternative programs will be built. 

In addition, general government officials can use budget discussions to advance instruments of cooperation. 

For example, written agreements to formalize working relationships can reduce tension and its potential to derail 

programs. Such agreements can reserve a specific number 

of treatment slots, they can specify the type and frequency 

of feedback information, and they can resolve issues of 

confidentiality and security. If these formal agreements 

include interagency payment or private sector contracting 

for the services, the services also are likely to be used 

more. Treatment agencies would not be able to turn criminal justice referrals away unless the contract slots were 

filled, and correctional authorities would feel budget pressure to make use of prepaid services. Public agencies 

would benefit from a clear accounting of costs in their annual budget development. 

Finally, traditional intergovernmental cooperation 

can play a strong role. If agencies are used to working together and if local governments take pride in their control 

over providing services, this will carry through into correctional programs. For example, according to Hennepin 

County’s probation chief: 

[Clommunity-based programming for corrections 

services has been well accepted in Minnesota. This 

is true not only in the corrections arena, but in the 

public health, social service, and education fields 

as well. We have many community-based programs in these other areas that correction’s staff 

draw on to support clients that come through our 

system. It is that coordinated effort that makes 

much of our program a success.11o 

Disparate Funding Responsibilities 

However, in many jurisdictions, disparate intergovernmental responsibilities for providing human services is 

the norm. This not only means that habits of cooperation 

probably will not be present, but also that the budget leverage that could be used by general government elected 

officials to affect agency policy will be dissipated. 

If a single unit of government controls the budgets of 

all the players, it is much easier to force interagency cooperation. Unfortunately, this is seldom the case: Substance 

abuse programs usually are provided by counties, but cities 

also may fund treatment. Adult education usually is provided by separately funded school districts. Mental health 

services may be provided locally by the county, state, and/ 

or municipality. Job training and placement is usually a 

state or municipal function. 

This disparate funding focus further undercuts the 

push for alternatives because governing bodies may not be 

able to realize any net savings in their individual budgets. 

Counties may see immediate direct benefits in funding 

less costly alternatives rather than building a new jail, 

while cities can only anticipate a long-term pay-off from 

reducing crime through drug treatment. Several states 

fund community sanction programs only to the degree 

that they actually divert offenders from state prison. 

The challenge to general government elected officials to supply resources to correctional needs has been 

long standing. The need was stated succinctly by the director of the American Correctional Association in response to the 1984 ACIR report on local jails, “Corrections is a shared responsibility and to be able to 

accomplish positive change we need to stop the isolation 

from other community agencies.””’ However, it is one 

thing to utilize general government resources where they exist; it is quite another to face difficult intergovernmental 

policy decisions where the resources do not exist. 

Adequacy of Community Resources 

As noted in several other areas of criminal justice concern, the provision of treatment, education, and work programs in the community is impeded by the concentration 

of the need in America’s impacted ghettos. Whether the 

treatment service is county funded or city funded, both are 

undercut by the cycle of the local tax base being weakened 

by crime, the underlying causes of which cannot be addressed because of the weak tax base. The state, as a 

whole, then has to fund an extraordinary number of prison 

beds for inmates from these urban cores. This high need 

for state prison beds results both because the cycle of local 

criminal justice system contact has done little to reduce 

criminal activity, which has resulted in increasingly serious 

U.S. Advisory Commission on Intergovernmental Relations 109 
criminal behavior, and because there are extremely limited alternatives in the community unless they are established by the state. 

In the 199Os, this divergence in the ability of high-crime 

communities to provide treatment, educational, and work 

opportunities is being further exacerbated by drugs. The 

more the war on drugs has been successful in reducing casual 

use, the more it has become apparent that the persistence of 

hard-core drug use is concentrated in urban centers where it 

is related to the inability of the educational system, the economy, and family support systems to foster an attractive alternative to drug use and dealing. The following observation 

represents the view of many large-city officials: 

Trading off of scarce federal resources from critical domestic programs to fund the war on drugs. . . severely limits alternatives that can be offered to 

those lured into the drug trade. . . . For too many 

young people from broken, poor families, drugs 

offer the only way to what we were all raised to 

understand was the American way-that any 

child born anywhere can make it to the top."* 

The costs of establishing alternatives where none exist will be very significant. Nevertheless, the public policy 

debate needs to focus on whether the price borne by the 

taxpayers as a whole is any less whether public resources 

continue to be drawn off to fund the cost of police, courts, 

and state imprisonment or whether they also fund community alternatives. 

Intergovernmental Funding and Control 

Even when the public can be convinced of the need to 

have more offenders serve their sentences in their local 

community, and even when a network of treatment and 

surveillance can be forged between criminal justice and 

general government agencies, another area of controversy 

must be addressed: Will a shift in fundsand control accompany a shift in prisoners? 

Intergovernmental issues concerning the presence of a 

state offender in the community revolve around three sets of 

circumstances: state-sentenced prisoners backed up in local 

jails, redefining state responsibility, and defining the responsibility for community corrections. In each of these areas, the 

decisions that are made about intergovernmental funding 

and control can have an important bearing on the use of alternatives to incarceration, their availability, their effectiveness, and their public safety credibility. 

State Prisoners Backed Up in Local Jails 

At the end of 1990,21 states reported that state prisoners were held in local jails because of crowding in state 

facilities. The number of state prisoners tends to be more 

of an issue of delays in constructing new prisons rather 

than conscious state policy decisions. Therefore, the numbers backed up will vary fromyear to year. However, eight 

states had more than 10 percent of their state-sentenced 

inmates backed up in local jails during at least one of the 

years 1988,1989, and 1990: Louisiana (three- year annual 

average of 24.1 percent), Tennessee (22.2 percent), New 

Jersey (14.0 percent), Mississippi (12.7 percent), Kentucky 

(12.6 percent), Virginia (10.6 percent), Arkansas (8.7 percent), and Idaho (8.5 per~ent)."~ 

In any state, a backup of state prisoners in local jails 

raises the types of issues that surround a typical contract 

dispute: What is the service provider's obligation to provide service and at what price? In correctional terms, these 

issues would be phrased: Are localities legally obligated to 

keep state prisoners and what is a fair per diem payment? 

There has been a variety of local lawsuits, either to remove the state prisoners or to have the state pay the locality a more adequate per diem. ATexas court recently ruled 

that the state must pay $40 a day for state felons held in a 

local jail longer than seven days after senten~ing."~ Ina 

1988 Virginia court ruling, the issue was not the per diem 

payment but whether the state had to remove its prisoners. In this local decision, the court allowed 60 days before 

state prisoners had to be remo~ed."~ In Albany, New 

York, the sheriff hit this issue from two sides. He refused 

to take state parole violators backinto his jailand, when he 

was sued by the state, he countersued for removal of the 

state-sentenced felons he was holding.Il6 

Redefining State Responsibility 

In a few states, the intergovernmental conflict produced by state prisoners backed up in local jails has been 

settled through redefining who isa state prisoner. This has 

resulted in an unanticipated adjustment to tough sentencing laws, through formalizing a little-noted chain reaction. 

If tougher sentencing laws produce prison and jail overcrowding, where or how these sentences are served may 

have to be changed, with the result that a person committing the same criminal act today compared toa decade ago 

may still receive the same type of punishment. 

For example, in 1989, the Tennessee Select Oversight 

Committee proposed that felons sentenced for crimes 

such as petit larceny, check forgery, or selling marijuana 

would not be sent to prison, but would serve their time in 

local jails. The committee further proposed that consideration be given to alternative housing and/or programming 

for all mi~demeanants.~" 

There are those within the correctional field who welcome this inevitable progression. For them, the compelling reason to legislatively redefine the types of prisoners 

who will be the state's responsibility is not to relieve overcrowding but to recognize that most first-time, nonviolent I 

offenders do not belong in the state prison system. 

Local officials' acceptance of redefining state respon 

sibility has been driven less by programmatic issues than bj 

planning and budgeting concerns. In the related aftermath of the local Virginia court ruling cited above, the 

1990 legislature changed the state code to stipulate that 

state felons sentenced to less than two years-rather than 

less than one year-could be left in local jails. The critical 

intergovernmental trade-off was that the code also was 

changed to end the DOC director's discretion to remove 

state prisoners from local jails. Local sheriffs and government officials accepted the expanded definition of whom 

they were responsible for because in the future they would 

have control over whom they took. As one local officialob 

served, "We'd rather have to plan for more jail inmates 

I 

11 0 U.S. Advisory Commission on Intergovernmental Relations 
than not be able to plan at all because thcre is no control 

over the state’s actions.””* 

Responsibility for Community Corrections 

State systems of justice also are being redefined over 

the basic question of whether alternatives to imprisonment should be a local responsibility or a state responsibility. As mentioned earlier under the discussion of costs 

driving the acceptance of alternatives, county officials may 

be relatively willing to fund an alternative to someone being held in jail when they can see a direct benefit in controlling the jail’s demands on their budget. 

County and municipal officials, however, may be very 

resistant to supporting alternatives to state prison because 

they see an added program responsibility with no political 

benefit. In fact, the suspicion may be so great that even a 

promise of added state funds is not well received, as in the 

following example from Ohio: 

[Tlhe proposal to shift low-level felons to community facilities and programs was not popular 

with many county commissioners and sheriffs, despite the interrelated call for adequate State 

funding. Local officials expressed suspicion about 

the State’s willingness to subsidize local corrections operations for years to come. . . .l19 

Proposals to fund local programs for state prisoners may 

be regarded as a classic “camel’s nose under the tent.” Localities fear that once the focus of the programs is shifted, 

the responsibility to fund them adequately will follow. 

One way around such intergovernmental suspicion 

over diverting prisoners from the state system into the 

community is for the state system to move into the community. Again, in Ohio: 

[Tlhe 1982 legislature proposed a system of community-based correctional facilities for felons, 

built by the State and subsidized by state funds, 

but governed and operated by local boards. While 

proposals to shift low-level felons to community facilities under the Community Corrections Act have 

been opposed by shenffs and local officials, these 

new state facilities are being relatively well received 

and are accomplishing the same objective.12o 

The California New Prison Construction Act (1990) 

took a similar approach in establishing community correctional centers. As in the Ohio approach, technically, the 

allocation of responsibility in California’s criminal justice 

system was not changed: the state is still responsible for 

the same classes of offenders, but these offenders are now 

in the locality in programs operated by the locality. The 

state will contract with counties that volunteer to have a 

facility for specific types of slots for offenders for whom 

the state is responsible (e.g., 50 community detention, 50 

specialized probation for drug abusers, and 100 residcntial 

drug treatment). Counties may serve up to 15 percent additional local offenders at local expense. The proposed financing of these facilities is notable because it pegs local 

reimbursements to current state costs for comparable activities. Thus, it avoids both the pitfalls of state payments 

not tracking those cost increases that localities cannot 

control, while holding local spending accountable to the 

same standards used by the government raising the funds. 

Specifically, it was proposed that the state pay the localities 85 percent of the average annual state operating cost 

of incarcerating an offender and fund local construction of 

a state-designed facility at a rate no more than 75 percent 

of the state cost to construct a minimum-security bed.121 

The success of such a state-run correctional program 

in the community versus a locally run program depends a 

great deal on each state’s level of responsibility for noncriminal justice support services. If, as in New York’s 

ACCESS program, treatment centers are licensed by the 

state, or employment services are a state function, then a 

state-run community facility may be able to command better 

cooperation in integrating the offender into the network of 

community services than a local criminal justice agency can. 

In other localities, placing correctional programs under the 

same budget authority as local general government treatment programs may create the needed focus. 

Basic governmental management concerns that arise 

whenever local autonomy is superseded by a state-run 

program must be considered as well. The most important 

need is to develop an organizational structure that will allow the centralized, distant policy approval and budget authority to be responsive to the variety of local resources 

and personalities that exists across any state. 

Another part of rethinking the way the state system of 

justice is structured to achieve greater use of alternatives 

is to look at who should be accountable for the improvements needed to support the use of alternatives. For example, in approximately half the states, probation supervision and pre-sentence reports are a local responsibility. If 

better information is needed about the offender for more 

appropriate sentencing decisions, who will pay for more and 

better trained personnel to improve pre-sentence reports? Is 

it better for the state to subsidize targeted improvements, 

leaving control and accountability within a local network 

to maximize responsiveness and access? Or, does the state 

need to guarantee that minimum standards are met, so 

that lax management in one locality will not jeopardize the 

program statewide? 

Another focus of intergovernmental relations in alternative sanctions revolves around state Community 

Corrections Acts, described in Chapter 3. CCAs represent 

a comprehensive approach to shifts in funding and in responsibility. They include a variety of approaches that 

tend to reflect the following factors: 

Whether probation and/or parole supervision 

was historically a local or a state function; 

Whether prison overcrowding is a major issue; and 

How large a percentage of the prison population 

comes from how few jurisdictions and how economically strong those jurisdictions are. 

One state’s CCA may simply be a vehicle for providing 

supplemental funding to its localities. Another state’s 

CCA may contain substantial incentives to enact local 

programs, while still another’s may contain financial penalties for not using community options. 

H 

H 

H 

U.S. Advisory Commission on Intergovernmental Relations 11 1 
As the cost of criminal justice has escalated with the 

rising numbers of offenders incarcerated, great pressure 

hasbeen put on state and bcalbudgets. Those communities most heavily affected by crime frequently also are so 

financially distressed that the issue of local control becomes secondary to the battle for financial relief. However, it is important that intergovernmental funding decisions focus first on how to heighten accountability for 

effective community corrections programs and maximize 

the delivery of services. Agreeing on this goal will establish a crucial level of trust between the state and local governments. It also will lead to a more lasting understanding 

of why an offender should be kept within the locality versus being put in a distant state prison. Intergovernmental 

funding decisions should flow from these decisions, not 

control them. The issue is not who pays, but that well focused programs give everyone the opportunity to save. 

Probation and Parole Officers’ 

Accountability and Workload 

The intergovernmental placement and governmental 

support of probation and parole officers frequently is central not only in funding discussions, but also in the other 

main concerns of this chapter: 

The need to establish a productive relationship 

between the criminal justice system and other 

agencies; 

The public’s concern about safety over all other 

goals of criminal justice; and 

The acceptance of alternatives to incarceration as 

meaningful sanctions. 

More than 15 years ago, a U.S. Government Accounting 

Office report on recidivism sounded this warning: 

Deciding whether adequate resources are assigned to probation efforts or to other elements 

of the criminal justice system will ultimately be a 

political matter. . . , If action is not taken to correct probation systems’ problems, the systems will 

probably deteriorate further, increasing the danger 

to the public and the amount of recidivism.122 

This warning is even more crucial for the 1990s. 

Probation and Parole Caseloads 

During much of the 1980s, it could be pointed out that 

as fast as prison and jail populations were growing, the use 

of probation was growing even faster. To many, this was a 

welcome indication that officials were making thoughtful 

sentencing decisions rather than automatically imposing 

incarceration. However, as noted in Chapter 1, the thrceyear trend from 1988-90 indicates that this balance may 

have run its course. 

While government officials should be concerned 

about the impact on their budgets if the three-year shift 

toward growth in prison and jail sentences continues at a 

greater rate than the use of probation, they first need to 

investigate whether past budget decisions contributed to 

rn 

rn 

rn 

the shift. Specifically, did increased reliance on probation 

without increased funding for supervision produce a 

short-lived, false economy? 

Probation and parole caseloads increased significantly in many jurisdictions during the 1980s. For example: 

California’s Blue Ribbon Commission reported 

that “during the last 20 years, criminal justicebudget increases have been as follows: courts 196%’ 

prosecution 179%, law enforcement 169%, and 

probation 98%.”123 “Because of underfunding and 

large caseloads, probation supervision following release from jail or in lieu of incarceration today is 

mostly monitoring for rearrest or unsupervised 

community release.”124 Sixty percent of Los Angeles probationers are tracked solely by computer 

and have no contact with an officer. 

The New Jersey County and Municipal Government Study Commission concluded, “Caseloads 

for the probation officers must be reduced. The average adult caseload is 162, it should be no more 

than 100. The counties would need 175 additional 

officers at a cost of $3.5 million annually.”1u 

An Ohio Governor’s Committee recommended 

an “increased number of probations officers to allow more interaction between offenders and those 

charged with surveillance. The average caseload 

in the seven largest counties in Ohio is 120 probationers per probation officer. This does not allow 

much time for the officers to monitor offenders or 

to complete thorough pre-sentence investigations.”126 

Harris County (Houston) reported that it would 

need to hire 140 new probation officers to meet 

the 1OO:l maximum standard adopted under the 

Texas Community Corrections 

The Hennepin County (Minneapolis) Community Corrections Advisory Board chairman observed, “The only way that a system which encompasses a wide variety of sanctions [can] be 

credible is if we allocate resources sufficient to 

make [it] credible. Up to this point community 

services have had to compete with institutional 

resources and [they] lose every time.”128 

In fact, concerns about probation and parole are one 

of the most often repeated points in any comprehensive 

review of a state and/or local criminal justice system. 

Caseloads are so large that few even bother to point out 

that the 1967 President’s Commission on Law Enforcement and Administration of Justice recommended a caseload of 35 cases per officer.lB As Table 4-2 indicates, three 

out of five felony probationers see a probation officer no 

more than once a month, at best, because actual contacts 

are often less than the number pre~cribed.’~’ 

This picture underscores the importance of government officials examining past trends and the current status of probation and parole supervisory caseloads before 

11 2 US. Advisory Commission on Intergovernmental Relations 
Community Corrections does not have the resources to verify the information being used to 

make release decisions or to do any field supervision of the defendants released.”’34 

Table 4-2 

Prescribed* Number of Contacts 

with Probation OFficer, 1989 

Initial Supervision Prescribed Number Intergovernmental Responsibility 

Level of Contacts Of for Probation and Parole ~~ 

As important as it is, achieving reasonable caseloads is 

Intensive not the only major issue in probation and parole adminisMaximum 3 per month 32 tration. A key issue in 1976-responsibility for probation 

Medium 1 per month 37 services-remains a problem. According to the GAO reMinimum 1 per 3 months 12 port referred to in the beginning of this section: 

Administrative None required 9 

9 per month 10 % 

Decreasing caseloads in and of itself will not increase a probation system’s effectiveness. A probation system must first systematically identify 

probationers’ needs. It then must either directly 

satisfy these needs or arrange for them to be satisfied by other social institutions or resource^.'^^ 

*Not necessarily actual contacts. 

Source: U.S. Department of Justice, Bureau of Justice Statistics, 

Recidivism of Felons on Probation, 1986-89. 

considering new community programs* Has there been GAO then identified a major obstacle to achieving this 

so little supervision or treatment guidance of probation- goal: “Making community agencies responers that they continue to commit criminal acts until the 

si

ve to probationers’ needs maybe beyond the authority of 

court has no choice but to incarcerate? Will a new pro- probation systems.,,136 Interestingly, was one finding 

have surfaced where new concepts are being undercut to GAO: 

by existing excessive: 

gram be any Once again, with which the Department of Justice took issue in a letter 

w In critiquing New York’s ACCESS program, the 

Vera Institute noted that “the press of demands on 

Parole’s ACCESS counselor, coming from the gen- eral parole population, was a nearly fatal distraction 

from the need to focus on Lincoln graduate^."'^' 

The Baltimore Bar Association reports that “due 

to lack of funding, the frequency of monthly drug 

tests administered to probationers and parolees 

where a drug problem was indicated was cut from 

three times a month to once every two months. 

The number of agent contacts has dropped from 

three to two times a month in the intensive or 

high risk category.”132 

When drug counselors in the Washington, DC, 

area noted that “for first-time offenders, it is important for treatment officials to communicate 

with probation officers and make the recommendations as to the type of treatment required based 

upon the evaluation process,” a judge responded, 

“Our probation agency now has officers handling 

caseloads around 150 cases per officer. They can’t 

possibly supervise that many people effe~tively.”’~~ 

In Hennepin County’s comprehensive review of 

ways to reduce the need to build a new jail, the 

recommendation for increased pretrial release was 

accompanied by this warning, “As release policies 

are changed over time, the issue of public safety 

will become increasingly important. Since more 

defendants are likely to be released pending trial, 

more resources will be needed to track and supcrvise these releasees. At present, the Bureau of 

w 

w 

w 

We believe probation agencies can strongly influence the services community resource agencies 

provide. Much more needs to be done by probation agencies to focus the attention of the community on the need for certain services, negotiate 

to have these services performed, and establish a 

referral system that encourages participation by 

community resource agencies. Realistically, if one 

accepts the premise of the reintegration model, 

the probation agencies are committed to the task of 

attempting to secure some modifications in the acceptance of the probationers by the community.137 

This forceful articulation of the rationale for coordination 

of probation services in the community underscores the 

need to address the intergovernmental issue that was not 

discussed in that 1970s exchange. 

This intergovernmental issue is the decision as to who 

will administer probation and/or parole supervision. 

Twenty-six states use state administration alone. Nine 

states use judicial administration. Thirteen states use a 

mix of state and local efforts. For example, the Hams 

County Probation Department is a mixed system. It must 

comply with standards established by the state Department of Criminal Justice; the local criminal court judges 

establish operational policy and direction; the county provides probation facilities and equipment; operational 

monies and salaries are derived from the state and from 

court-ordered supervisory fee collections. In 21 states, 

probation and parole supervision are combined, and that 

appears to be a national trend. In some states, misdemeanor probation cases are handled separately from 

those of felons, and juveniles may be dealt with separately 

from ad~1ts.l~~ 

US. Advisory Commission on intergovernmental Relations 11 3 
A focus group discussion of chief probation officers 

brought forth the following considerations about the operational results of these various arrangements: 

Regarding Judicial Appointment 

“I sit apart from other general government agencies. Although the county funds my budget, it 

works on their head that I am the only one appointed by somebody else.” 

“I don’t find myself invited to some of the discussions other probation chiefs are.” 

“The power that you have in being appointed by 

the court is that the courts are a powerful constituency.” 

“Those of us under the judiciary historically have 

a ‘don’t step out in front approach.’ I am always 

thinking in terms of the decorum of the superior 

court. And I can never move out in front of them, 

and embarrass them, and put them in tension 

with the constituency that they serve.” 

Regarding Local Appointment 

“Probation is now included as part of the general 

government cabinet; it was not when probation 

was under the court. I am the only criminal justice 

agency represented.” 

“The most dynamic in terms of innovation and 

the greatest latitude and freedom of movement 

are those states with strong leadership at the local level.” 

Regarding State Appointment 

“My contact with local and state legislators is selfgenerated and many times frowned upon by the 

people in [the state capital].” 

“If you work for the state Department of Corrections, and you begin to step too far out in front of 

the institution, then you become a maverick.” 

“I am treated by judges as an equal, not as somebody who works for them.”139 

Most of these concerns underscore the desire to have probation supervision within the same governmental network 

as the activities in which the probationer is supposed to 

participate. 

Given that judges, the clerk of court, the prosecutor, 

and the sheriff are all politically independent, probation is 

the only direct link between general government and the 

criminal justice system in most communities. The critical 

nature of this link was emphasized by the chief of a local 

probation system, as follows: 

You stop trying to build your way out. You work 

purposefully and intensively to create intermediate sanctions based on cooperation and partnership between the incarceration side and the community corrections side of the criminal sanction 

continuum. There is no other way, I am convinced, to gain community support and solve the 

overcrowding crisis. 14’ 

Another aspect of assigning governmental authority 

over probation is the fact that most probation departments 

are responsible for two distinct functions: compiling information for the judge to use in the sentencing decision and 

supervising offenders who are serving alternative sentences. A 1989 New Jersey legislative commission proposed to split these predispositional and post-dispositional 

probation services. It was recommended that the investigative work to assist judges in sentencing continue to be a 

part of the trial court system, but that the state should assume funding ($22.7 million). Post-dispositional superviSOT services were recogpized by the commission as a major 

component of the correctional system. This community 

corrections function would continue to be funded by the 

counties ($39.1 million), but with the administrative control that had previously been the court’s.141 The commission noted that: 

With this recommendation, counties will be responsible for a continuum of services to offenders 

with a major emphasis on community corrections. 

The chief probation officer should be appointed 

by the respective appointing authority of the various counties to give county government both the 

administrative and financial responsibility to operate this program.142 

The recognition of the New Jersey cornmission that 

most probation agencies carry two distinct functions not 

only highlights the rationale of having accountability for 

supervision attached to the community, it also throws 

needed light on the importance of accurate information 

about the offender for alternative sanctions to gain creditability and use. As the National Academy of Science ob 

served, one of the principal reasons for failure is that “programs inadequately screen participants.” 

When criminal justice officials are brought together 

to assess system deficiencies, the need for accurate information is typically high on the list. From bail decision tc 

jail classification to pre-sentence report to applying sen. 

tencing guidelines to prison classification to parole deci 

sion, the assumption is that each decisionmaker is dealing 

with accurate information. The decisionmaker who does 

not trust the information will typically respond conservatively, choosing the more costly alternative or calling for’ 

new information in a wasteful retracing of effort. General 

government officials who want to see more effective targeting of treatment resources and/or who believe that jail 

and prison space should be utilized for the more serious 

criminals, will have to address the need to establish information systems to support these policy goals. The New. 

Jersey commission’s recommendation for state funding4 

pre-dispositional probation services recognizes the cod 

and systemwide coordination required, which will be dC 

cussed in Chapter 8. 

For purposes of identlfylng the governmental and inter+ 

governmental policy decisions needed to utilize senten& 

114 U.S. Advisory Commission on Intergovernmental Relations 
options, it is sufficient to note that the budgetaly impact of 

addressing caseload deficits in probation and parole and of 

establishing the technical capability for significantly improving the information base is great. These funding requirements complicate the intergovernmental decision about the 

placement of probation and parole where accountability can 

be tied most closely to the deliveq of services. 

Balancing the Conflicting Missions 

of Public Safety, Punishment, and Rehabilitation 

As emphasized at the beginning of this scction, determining who can be in the community rather than in jail or 

prison is not in the hands of one individual, agency, or unit 

of government. To achieve support for alternative sanctions, therefore, the distinct missions of judges, prosecutors, public defenders, corrections managers, probation 

and parole supervisors, police, and treatment providers 

must be balanced. Further, actually establishing effective 

programs requires that the resulting consensus be backed 

by the public resources and the political will to fund it. 

This final subsection will discuss the potential for alternative sanctions to be given greater weight in these policy 

considerations. 

A 1991 U.S. Supreme Court decision (Harmelin v. 

Michigan) gave significantly greater latitude to “community standards” in determining tough sentences. This decision gives renewed emphasis to the need to clearly face 

the question in each locality: What is to be the balance between punishment Uust desserts), incapacitation (deterrence), and rehabilitation? There are strong advocates for 

each of these philosophies, and most of the advocates 

complain that the reason their approach has not shown 

better results is that it has not been fully carried out. 

It is a challcnge for political leaders not to let any 

single element overwhelm a comprehcnsive approach, 

through which law enforccment and correctional approaches will compliment rather than undercut each other. For example, if intermediate penalties are to work, 

they must be enforced; however, because ovcrcrowded facilities will break the system, enforcement needs to be based 

on a set of graduated responses. The National Institute of 

Justice has developed an intcnsive retreat model for forging 

such compromises within local criminal justice systems. Absent an NIJ comprehensive refocusing exercise, opportunities must be found to use the characteristic concerns of 

individual officials to support greater emphasis on alternative sanctions. 

Judges appear to be ready to back alternative sanctions, at least to the degree it gives them more optionsfor 

control. Therefore, it is important that judicial conccrns 

about control be addressed. For example, in a 1987 Michigan survey, although two-thirds of the judges expressed 

the desire for more community options to increase their 

range of sentencing alternatives, only one-third stated 

that they actually would use them. A Michigan legislative 

report concluded that: “The implications seem clear-develop community-based ‘punishments’ that are punishments in reality. By so doing, judicial perceptions that such 

community-based punishments are soft should ~hange.”“~ 

Focus 

NIC Intermediate Sanctions Project 

In the belief that alternative rehabilitative programs cannot be imposed from the top down but have 

to be developed at the local level, the National Institute of Corrections and the State Justice Institute have 

launched a program to bring key local officials together. This “Intermediate Sanctions Project” focused on 

officials in 12 jurisdictions in 1990 to “encourage and 

support their ownership of alternative sanctions and to 

enhance the technical quality of their policy analysis 

and program development.” 

Federal fundspay for three local officials to attend 

a retreat. Others may be included and, thus far, each 

locality has funded the cost of at least five to as many as 

ten additional people. The chief judge, prosecutor, and 

chief jailer must participate. The project also recommends that the police chief, local elected officials, 

head of the community services board, and influential 

citizens be considered. In all cases, the principals must 

attend-no deputies. 

At the retreat, these local officials focus very simply 

on determining the locality’s philosophy of corrections 

and how it is to be accomplished. There is no right or 

wrong approach. The importance is to get agreement, so 

that support for governmental decisions can be marshaled to carry out that philosophy effectively. 

The project has targeted only the largest jurisdiction in a state, not because criminal justice problems 

are usually greater there, but because a successful approach developed there will usually have the greatest 

influence on the other localities in the state. 

Source: US. Department of Justice, Office of Justice Pro- grams, A Survey of Intermediate Sanctions (Wash- ington, DC, 1990). 

Although heavy fines payable over a longer period of time 

were mentioned, others-such as diligently enforced 

community service or limited freedom of movementwould have to involve “real supervision,” through significantly lower caseloads, to achieve the judges’ concept of 

“real punishment.” 

The degree to which the courts will use alternative 

sanctions also depends on their level of knowledge about 

the programs and the details of supervision. For this reason, most CCA boards include judicial representation, or 

even stipulate that the chief judge chair the board. However, in at least one state, Virginia, the state supreme 

court advised the local courts that judicial participation in 

the oversight of community corrections was a breach of 

the separation of powers. Fortunately, such an additional 

barrier to increasing judicial understanding through increased participation does not exist in most other states. In 

fact, the Alabama focus (page 116) presents a good example of the leadership that the bench can exert and the importance of developing familiarity with the actual operation of alternative sanctions. 

U.S. Advisory Commission on Intergovernmental Relations 11 5 
Focus 

Alabama Judicial Leadership 

In 1987, the chief justice of the Alabama Supreme 

Court appointed a task force, which he charged to find 

ways to reach a zero rate of growth in the prison population. The Edna McConnell Clark Foundation survey 

of the public’s willingness to support alternative sanctions, cited earlier, helped convince judges that they 

could avoid being labeled soft on crime when they were 

up for reelection if the alternative punishment is 

“clearly tough, fits the crime and the criminal, and is 

carefully monitored.” As an example of the benefit of 

the initiative, according to Governing Magazine, “one 

judge released a seven-page sentencing order explaining why a 22-year-old man who was guilty of several 

burglaries, would not go to prison. . . [why] restitution, 

drug counseling, community service and getting a 

GED served everyone better than imprisonment. The 

man kept his job, and he’s paying taxes. . . .” 

The Alabama Department of Corrections backed 

the judiciary’s efforts. “When you can’t possibly afford 

enough prisons to house all your criminals, you have to 

find new and better ways to punish. That is what we are 

doing in Alabama now. Our judges are leading the 

way,” according to a spokesman for the Department of 

Corrections. “If any such program is to succeed, it must 

have public acceptance. That, in turn, must be based on 

public understanding.” The department was particularly active in an information campaign that generated 

favorable news stories and editorials. 

The judicial leadership has enabled other public 

officials to embrace the need for alternatives. The 

mayor of Montgomery, Alabama recently stated, “Alternative sentencing is an idea whose time has come, 

and we are seeing it work in Montgomery” especially, 

he went on to assert, given the importance of maintaining prison space for violent criminals. 

Sources: John Doble and Josh Klein, Punislring Criminals: 

The Public’s View: An Alabama Survey (New York 

The Edna McConnell Clark Foundation, 1989); 

and John H. Hale, “Stone Walls Do Not a Prison 

Make, As Alabama Tries Alternatives,” Governing 

4 (March 1991): 9. 

Judicial understanding of the totality of the system 

particularly important, given low public confidence in the 

effectiveness of courts in dealing with crime. Through 

their broader involvement, judges can address the system 

impacts of their decisions and better speak to the politics 

of borderline decisions. For example, in the Iowa survey 

cited in Chapter 2, which reported that probation officers 

recommended incarceration for recidivists almost twice as 

often as judges imposed it, it is important to note that the 

judge’s decision was right 65 percent of the time.144 In the 

national f ollow-up of 79,000 probationers, the decision not 

to follow the recommendation to incarcerate was right in 

63 percent of the This is a significant saving of resources. 

Just as the judge’s mission-to give an appropriate 

sentence-can be focused on strengthened community 

sanctions, so can the mission of correctional authoritiesto protect public safety while administering an overcrowded system-encompass strengthened alternatives. 

For example, when the Los Angeles Board of Supervisors 

refused to fund a follow-up probation component of a jail 

boot-camp program, the sheriff took the “unprecedented 

step” of giving the Probation Department $1.5 million of 

his own funds. “The Sheriff said, simply, that without probation this program could not succeed.”l* 

In other localities, jail administrators and sheriffs see 

long-term advantages in identifying an inmate’s willingness to accept treatment before release, rather than waste 

resources on unsuccessful probation when there is less supervisory pressure. For example, the sheriff of Alexandria, Virginia, started a Sober Living Unit at the jail in 

1988. The need for such a program was amply demonstrated by the fact that 80 percent of the participants had 

never had treatment of any kind, despite the fact that 95 

percent had been incarcerated before, and by the participation of inmates who stayed beyond their release date to 

complete the 90-day program. 

Even prosecutors, whose mission is to convict people 

of the crimes they have committed, may be motivated to 

back more effective probation and parole supervision over 

additional convictions. Among the prosecutor’s offices 

that have special programs to revoke probation or parole 

for the commission of a new crime, rather than prosecuting the new crime itself, are Wayne County (Detroit), NeH 

York City, and Los Angeles County. These prosecutors 

see another “slap on the wrist” as not only wasting court 

resources, but being much less effective than demonstrating that the court order for the original conviction is to be 

taken seriously. “Probation would once again be a contract 

to be honored not a meaningless joke.”147 

Parenthetically, the independence of criminal justice 

officials can mean that the system may not respond justbecause prosecutors emphasize probation as a serious sanc- tion. In two instances above, judges were refusing motions 

for revocation hearings or not scheduling them in a timely 

manner. In New York City, the mayor had to force the is- sue; in Wayne County, the prosecutor had to win a Court 

of Appeals decision (People v. William) over his right to 

enter into revocations. 

The key to increasing the support of probation and pa- role officials for alternative sanctions may be to recognize 

the traditional multiplicity of their missions. Even though 

many probation and parole officers have moved am) 

froma social work orientation (which often meant thal 

they felt they were admitting failure if they had to move tc 

recommit an offender) to a law enforcement orientation 

(which regards catching violations to be a success), mosl 

would still prefer to have a progression of sanctions. Thc 

central conclusion of the California Blue Ribbon lid 

Force stated it well: 

The criminal justice system in California is out 

of balance and will remain so unless the entire 

state and local criminal justice system is addressed from prevention through discharge of 

11 6 US. Advisory Commission on Intergovernmental Relations 
jurisdiction. Judges and parole authorities lack 

sufficient intermediate sanctions to make balanced public safety decisions. . . . Judges must 

balance punishment, public safety and effectiveness; and, given limited resources, have increasingly selected incarceration.. . . Parole officers given the same lack of resources in 

deciding whether to violate or not have dramatically increased reincarceration as their choice.148 

The Governor’s Commission in Ohio made a similar observation, specifically, that a return to prison should not 

be the only option for a parolee who tests positive for 

drugs. “A progressively severe range of sanctions should 

be developed, with prison as the ultimate penalty.”149 

Providing probation and parole officers with greater 

program choices and reasonable caseloads also may help 

address conflicts in mission between them and treatment 

providers, which center on the classic pull between treating the offender as a criminal or as a person in need of services. Some treatment providers complain that probation 

officers are too intrusive, as with security audits of contract residential facilities, while others complain that they 

do not get adequate supervisory backup. Many programs 

based on the Alcoholics Anonymous 12-step model maintain that even being asked whether or not the offender has 

attended violates their program’s integrity. Others believe 

that being seen as “an arm of parole” hinders their effectiveness in establishing a therapeutic relationship. Who is 

in charge of the treatment also can be a focus of conflict 

over what constitutes success or what type of treatment is 

necessary. The more the role of the probation and parole 

officer is clarified, the more treatment providers can define their own needs to assure program success. 

Finally, determining the balance between public safety, punishment, and rehabilitation calls forth traditional 

issues of state control. Because local governmental units 

are legal creatures of the state, many state officials feel an 

obligation to oversee local activities, especially where issues of public safety are concerned. As noted in the discussion of Community Corrections Acts in Chapter 3, state 

regulation of local programs has a heavy emphasis on public safety, including what types of offenders can participate, what security procedures should be followed, and 

how security audits should be conducted. These state regulations represent efforts to bolster the lowest common 

denominator of local correctional experience. Even though 

the assumption behind local advisory boards is that community representatives should be in control of who is released 

into their community, there is also a concern that many localities need to be shielded from inadvertent mistakes due to 

lack of extensive experience in dealing with criminals. 

Any legislative consideration of restructuring probation 

or parole accountability usually finds numerous reputable 

voices speaking in favor of stronger public safety supervision. 

Judges, prosecutors, and police officials repeatedly are 

brought into contact with criminals who do not successfully 

complete probation or parole. They have little occasion to be 

reminded of those whose criminal activity ends. The challenge for state legislatures and executive agencies is to not 

allow legitimate concerns about possible career criminals, 

organized gangs, and drug networks to completely overshadow getting first-time, nonviolent offenders into community 

senices and out of a potential careercriminal track. 

In the process of standing up to disparate voices from 

all comers of the criminal justice system and insisting on 

open dialogue, general government elected leaders will be 

able to identlfy the individuals who are innovators. In one 

locality, it was the sheriff who went out and sold the community on work release; in another, it was a judge who tailored restitution so that it can be broadly applied. One 

prosecutor used federal drug forfeiture funds for crack 

mothers, while a clerk of court was key to using summons in 

place of arrest and incarceration. Supporting those in the 

crirninal justice system who are willing to stand behind a program and get others to buy-in to make it work, always has 

been more successful than any solution imposed from outside-not just outside the locality, but even imposed by general government officials outside the criminal justice system. 

Elected officials may, in the end, take their lead from 

the public that, perhaps, too much is made of competing 

missions in criminal justice. When the Edna McConnell 

Clark national focus groups were asked which of four 

goals is the most important for the criminal justice sys- tem-punishment, incapacitation, rehabilitation, or deterrence-many found it hard to understand the basis for 

the question. All were important.lS0 

SUMMARY 

There are no inexpensive or guaranteed answers. 

There are no noncontroversial answers. But, improving 

the criminal justice system’s ability to reduce criminal behavior has become a problem that cannot be ignored by 

general government officials. County and city government 

actions are particularly important because of the combined weight of the following: 

Many offenders did not graduate from high 

school or are illiterate, abuse alcohol and/or 

drugs, and have poor employment records. 

Most first offenders remain in the community. 

Almost every state prisoner will return to the 

community. 

Although local general government elected officials 

are key to overcoming community resistance and to developing cooperation from general government and private 

agencies, they may not be able or willing to fund the required services. State legislators and governors, therefore, need to resolve issues of governmental responsibility 

and address the problem of inadequate resources, especially in crime-impacted areas. 

States have used a variety of means-increasingly under the umbrella of a Community Corrections Act-to 

shift responsibility for the least serious offenders back to 

the localities, as tougher penalties have moved more offenders into state prisons. Defining responsibility and 

U.S. Advisory Commission on Intergovernmental Relations 117 
funding usually must be linked, however, to reduce intergovernmental resistance. This is true not only because areas most impacted by crime do not have adequate community resources but also because the intergovernmental 

division of responsibilities within criminal justice does not 

support a natural shift to nonincarceration options. Counties and cities will not see immediate benefits from relieving state prison budgets, nor will cities and most states 

from relieving county jails. (Intergovernmental funding 

considerations are discussed further in Chapter 7.) 

Intergovernmental dispersion of responsibility also 

requires special effort to coordinate supervision and community programs. Probation officers can serve as the point 

of contact, but their authority may be limited by the institutional placement of the agency. 

Even when a state or county has budget responsibility 

for both institutional and community corrections, funding 

alternatives still may be overwhelmed by the growth in jail 

and prison budgets. In this spiral, too often, alternatives to 

incarceration have come to stand for no action and simply 

may reinforce criminal behavior. Reduced growth in 

courts sentencing offenders to probation at the end of the 

199Os, in fact, may be the result of not funding programs 

commensurate with the high use of probation at the begin- ning of the decade. Staffing new approaches at current 

levels may produce the same results. 

Finally, as discussed in the beginning of this chapter, 

establishing a rationale for using a full range of correctional options is as important as resolving governmental responsibility for them. Creditable information is essential. 

The program’s administrators need to believe in the efficacy of the approach, criminal justice authorities need to 

understand how their actions can enhance its potential, 

and treatment providers need to be helped to have a stake 

in it. Political leaders need to be informed and be willing to 

speak in terms the public can understand in order to receive the support needed to back their sentencing, policy, 

and budget decisions. 

Perhaps more than ever, America’s federal system is 

an asset. In an arena where there are no proven answers, 

each state becomes a laboratory to develop a continuum of 

criminal justice responses reflective of its priorities. If 

there is a desire to control prison growth, such a continuum will need to start with appropriate community sanctions and services that are reinforced rather than withdrawn in the face of initial criminal activity. The 

extraordinary cost of incarceration is justified only when 

other options are ineffective. 

NOTES 

Mark Corrigan, “The Politics of Sentencing Reform,” County 

News, September 12, 1988, p. 13. 

Governor Michael Castle of Delaware before the National 

Conference on Intermediate Punishments as Sentencing Op- tions, September 6, 1990. 

’Crime and Punishment: The Public’s View (New York: The 

Edna McConnell Clark Foundation, 1987), p. 15. 

Hams County Community Justice Council, Hanis Co~nty 

Community Justice Plan: Fiscal Year 1991 (Houston, lWO), p. 

68. 

Governor Michael Castle, panelist, National Conference on 

Intermediate Punishments as Sentencing Options, September 

4-7, 1991. 

Doug McDonald, panelist, National Conference on Interme- diate Punishments as Sentencing Options, September 4-7, 

1991. 

’John J. DiIulio, Jr., and Anne Momson Piehl, “Does Prison 

Pay? The Stormy National Debate over the Cost-Effectiveness 

of Imprisonment,” The Brookings Review 9 (Fall 1991): 28. 

Peter W Greenwood, The Violent Offender in the Criminal Jus- tice System (Santa Monica: RAND Corporation, 1981). 

9Comgan, “The Politics of Sentencing Reform,” p. 19. 

lo Alvin Cohn, “The Failure of Correctional Management,” Fedeml Probation 55 (December 1987): 3-7; Daniel L Skoler, Organizingthe Non-System (Lexington, Massachusetts: D.C. Heath, 

Lexington Books, 1977); Susan E. Martin, Lee B. Sechrest, and 

Robin Redner, The Rehabilitation of Criminal Offenders: New 

Directions for Research (Washington, DC: National Academy 

Press, 1981); U.S. Department of Justice, Bureau of Justice 

Statistics (BJS), “Recidivism of Young Parolees,” BJS Special 

Report, May 1987; “Recidivism of Felons on Probation, 

1986-89,” BJS Special Report, February 1992. 

l1 “Recidivism of Felons on Probation, 1986-89.” 

l2 BJS, Prisons and Prisoners in the United States (Washington, DC, April 1992). 

l3 “Recidivism of Prisoners Released in 1983,” BJS Special Re- port, April 1989. 

14Comptroller General of the United States, State and County 

Probation: Systems in Crisis (Washington, DC: U.S. Depart- ment of Justice, Law Enforcement Assistance Administration, 

1976). 

l5 “Recidivism of Prisoners Released in 1983.” 

16Virginia Department of Criminal Justice Services, Felony Justice in ViGinia (Richmond, 1987). 

l7 U.S. Department of Justice, National Institute of Justice (NIJ), 

NU Conference on Intemiediate Sanctions (Washington, DC, 

1990) p. 34. 

’* Martin, Sechrest, and Redner, The Rehabilitation of Criminal 

Offenders, p.1-10 and 1-32. 

l9 Joan Petersilia, Die Iilfluence of Criminal Justice Research 

(Washington, DC U.S. Department of Justice, National Insti- tute of Justice, 1987), p. 41. 

2o Martin, Sechrest, and Redner. The Rehabilitation of Criminal 

Offenders. 

21 Ibid., p. 1-21. 

221bid., p. 1-11. 

23 Vera Institute of Justice, Alcohol, Drugs and Crime (New York, 

1989), p. 2. 

24 NIJ, NIJ Conference on Intermediate Sanctions, p. 23. 

25 Crime and Punishment: The Public’s Kew, p. 26. 

26 Marvin E. Wolfgang, Robert Figlio, and Thorstein Sellin, Delinquency in a Birth Cohort (Chicago: University of Chicago 

Press, 1973). 

27 “Violent Crime in the United States,” BJS Bulletin, March 

1991. 

2s Petersilia, The Injluence of Criminal Justice Resemh, p. 47. 

r, Ibid., p. 49. 

30 Warren C. Gregory, The Crisis in the Michigan Criminal Justice 

System: Causes, Consequences, and Options (Lansing: House 

Fiscal Agency, 1989), pp. 20-21. 

31Jame~ Austin and John Irwin, WIO Goes to Prison? (San 

Francisco: National Council on Crime and Delinquency, 

1990), p. 12. 

118 US. Advisory Commission on Intergovernmental Relations 
32F’roportions of 1991 prison populations from Prisons and Pris- onemin the Unitedstates (April 1992), and the estimated num- ber of prior convictions from “Profile of State Prison Inmates, 

1986,” BJS Special Report (January 1988). 

j3National Council on Crime and Delinquency, Preliminruy 

Evalution of the Illinois Supplemental Meritorious Good Time 

Program (San Francisco, May 20, 1991). 

34“Profile of Jail Inmates, 1989.” 

”State of New Jersey County and Municipal Government Study 

Commission, Corrections Policy for the 90’s (Trenton, 1989); 

David Freed, “Crime Overloads LA. Justice System,” Los An- gela Times, December 16, 1990; Hennepin County Board of 

Commissioners, Hennepin County Sheriff, Hennepin County 

Attorney, Fourth Judicial District Court, and Minneapolis Po- lice Department, Hetinepin’s criminal Justice Systetn and the 

New Public Safety Facility (Minneapolis, January 1990). 

36“Pr0file of Jail Inmates, 1989.” 

37BJS, BJS Data Report, 1988 (Washington, DC, 1989). 

uI “Profile of Jail Inmates, 1989.” 

39 Ibid. 

a“Homicide among Young Black Males-United States, 

1978-1987,” Morbidity and Mortality Weekly Report, December 

41 Bob Miller, National Association of Counties Annual Meeting, 

Litchfield Park, Arizona, January 11, 1991. 

42Executive Office of the President, Office of National Drug 

Control Policy, National Drug Control Stmtegy (Washington, 

DC, 1990). 

43 BJS, Sourcebook of Criminal Justice Statistics, 1990 (Washington, DC, 1991), p. 449; U.S. Department of Justice, Federal Bureau of Investigation, Uniform Crime Reports, 1990 (Washing- ton, DC, August 11, 1991), p. 171. 

44 Sourcebook of Criminal Justice Statistics, 1990, p. 45 1; Uniform 

Crime Reports, 1990, p. 235. 

45“Violent Crime in the United States.” 

46Sourcebook of Critnitial Justice Statistics, 1990, p. 448. 

47Stanley E. Morris, “The Drug War: Meeting the Challenge,” 

Joumal of State Goveniment 63 (Spring 1990): 29-32. 

BJS, “BJS National Update,” April 1992. 

@Metropolitan Washington Council of Governments (COG) 

and Metropolitan Washington Court Administration Conference, Drugs and the Judicial Response: Drug Awareness Seminar 

for Judges in the Metropolitan Wahington Region: Evaluation 

Report, by Ronald I. Weiner (Washington, DC: Metropolitan 

Washington Council of Governments, January 1990), p. 27. 

“Profile of Jail Inmates, 1989.” 

51 Ohio Governor’s Commission on Socially Disadvantaged 

Black Males, Ohio’s African-American Males: A Call to Action, 

Volume One (Columbus, 1990). 

52Ru~ll Committee, Bar Association of Baltimore City, The 

Drug Crisis and Underfunding of the Justice Systetn in Baltimore 

City (Baltimore, 1990). 

53 Howard N. Snyder, Court Cmers of Juvenile Offenders (Pitts- burgh National Center for Juvenile Justice, 1988). 

54New Jersey County and Municipal Government Study Commission, Corrections Policy for the 90’s. 

55Donald Murray, “Committee Examines ‘Front-End’ Strategies to Prevent Crime,” County News, February 4, 1991, p. 6. 

%New Jersey County and Municipal Government Study Com- mission, Corrections Policy for the 90’s, p. 90. 

7, 1990. 

57 Uniform Crime Reports, 1990. 

Colorado Legislative Council, Report to the Colorado General 

Assembly. 

Virginia Prison and Jail Forecasting Policy Committee, Report 

(unpublished, September 1989). 

61 The Compiler 10 (Winter 1991). 

62Malcolm M. Lucas, Chief Justice of California, “State of the 

Judiciary Address,” Assembly Joumal, February 12,1990, p. 4. 

63 Stanley Lundine, “Treatment Key to Fighting Drugs,” Joumal 

of State Government 63 (Spring 1990): 35-36. 

64‘‘Violent Crime in the United States.” 

65 Ibid. 

66 Ibid. 

67 “Drug Use and Crime: State Prison Inmate Survey, 1986,” BJS 

59 Freed, “Crime Overloads LA. Justice System.” 

Special Report, July 1988. 

Ibid. 

November 11,1990. 69 James E. Burke, “Breaking a Habit of Mind,” WashingtonPost, 

70 “Profile of Jail Inmates, 1989.” 

71 COG, Drugs and the Judicial Response, p. 38. 

72 Marc Mauer, Americans Behind Bars: A Comparison oflntemationalhtes oflncarcemtion (Washington, DC: The Sentencing 

Project, 1991). 

73 “Arrestee Drug Use,” Drug Use Forecasting (October 1990). 

74 Dean R. Gerstein and Henrick J. Hanvood, eds., TreatingDrug 

Problems (Washington, DC National Academy Press, 1990), 

75 W John Moore, “Rethinking Drugs,”National Joumal, Febru- ary 2, 1991, p. 270. 

76R~bert L. Hubbard et al., Drug Abuse Treatment: A National 

Study of Effectiveness (Chapel Hill: University of North Caroli- na Press, 1989); Bruce D. Johnson, Douglas S. Lipton, and Eric 

D. Wish, Facts about the Criminality of Heroin and Cocaine 

Abusers and Some New Alternatives to Incmemtion (New York 

Narcotic and Drug Research, 1986); and Gerstein and Harwood, eds., Treating Drug Problems. 

77 Hubbard et. al., Drug Abuse Treatment: A National Study of Effectiveness. 

78 Ibid. 

79 Ibid., p. 7. 

Ibid. 

*’ Ibid., p. xiv and 12. 

82 Ibid., p. 69. 

83 Moore, “Rethinking Drugs,” p. 271. 

84 COG, Drugs and ihe Judicial Response. 

85New Jersey County and Municipal Government Study Com- mission. Corrections Policy for the 90’s. 

86 Gerstein and Hanvood, eds., Treating Drug Problems. 

87 Ibid. 

88 Office of the Attorney General, “Opening Remarks as Delivered by Dick Thornburgh, Attorney General of the United 

States, at the National Drug Conference,” p. 9. 

pp. 7-10. 

89 Gerstein and Hawood, eds.. Treating Drug Problems. 

90 NIJ Reports: Special Issue on Drugs (Summer 1990). 

91 Office of National Drug Control Policy, National Drug Control 

Strategy, p. 18. 

92 Testitnony of State Senator Bill Richardson on Behalf of the Nutional Conference of State Legislatures before the Committee on 

U.S. Advisory Commission on Intergovernmental Relatlons 119 
Government Operations, Subcommit tees on Legislation and National Security, and Government Information, Justice and Agri- culture, US. House of Representatives (Washington, DC: National Conference of State Legislatures, May 2, 1990), p. 2. 

93 Johnson, Lipton, and Wish, Facts about the Criminality of Heroin and Cocaine Abusers, p. 6. 

94Vera Institute, Alcohol, Drugs and Crime (1989). 

95 Hubbard et. al., Drug Abuse Treatment: A National Study of Ef96 Ibid. 

97 Ohio Governor’s Committee on Prison and Jail Crowding, Final Report, by David Diroll, Candace Peters, and Steven Van 

Dine (Columbus: Governor’s Office of Criminal Justice Services, 1990). 

fectiveness. 

9a Vera Institute, Alcohol, Drugs and Crime (1989), p. 4. 

wNational Center for State Courts, “Large Court Capacity In- crease Project” (Williamsburg, Virginia, October 1989), p. 35. 

loo In Re: Demetrius J., No. 100; In Re: Darvanion M.,No. 101; In 

Re: Shawn J., No. 102. Court of Appeals of Maryland, Filed 

January 2, 1991, p. 7. 

Ibid., p. 16. 

Drugs” (Athens, no date), unpaged. 

Justice System in Baltimore City, p. 45. 

BJS Data Report, 1988. 

“’Murray, “Committee Examines ‘Front-End’ Strategies To Pre- vent Crime.” 

lo6 Comptroller General, State and County Probation: Systents in 

Crisis, p. 25. 

Martin, Sechrest, and Redner, The Rehabilitation of Criminal 

Offenders, p. 2. 

lo* US. Sentencing Commission, Intemiediate Sanctions: A Dis- cussion of Illustrative Pivgranis (Washington, DC, 1990), p. 59. 

COG, Drugs and the Judicial Response, p. 48. 

Memorandum from Michael Cunniff, Hennepin Bureau of 

Community Corrections, to Vivian Watts, December 21,1990. 

‘11 US. Advisory Commission on Intergovernmental Relations, 

Jails: Intergovernmental Dimensions of a Local Problem (Washington, DC, 1984), p. 224. 

112 Julio Barreto and Janet Quist, “Cities Need Money to Fight 

Drugs,” Journal of State Government 63 (Spring 1990): 50-51. 

ACIR computation from “Prisoners in 1990,” BJS Bulletin, 

May 1991, and “Prisoners in 1989,” BIS Bulletin, May 1990. 

‘14Mary Colby, “State Gets Tab for Convicts Held in County 

Jails,” City & State, June 3-16, 1991. 

Richmond Circuit Court, Manchester Division, Case # A 3398-C. 

116 Confidential interview, 1990. 

117 (Tennessee) Select Oversight Committee on Corrections, 

State and Local Correcfions: A Coordinated Strategy for Tennessee (Nashville, 1989). 

Io2University of Georgia, “Developing a Community War on 

lo3 Russell Committee, Die Dnrg Crisis and Underfunding of the 

11* Confidential interview, 1990. 

119 Ohio Governor’s Committee on Prison and Jail Crowding, Final Report, p. 4. 

120 Ibid. 

121 (California) Commission on Inmate Population Management, 

122 Comptroller General, State and County Probation: Systems in 

123 (California) Commission on Inmate Population Management, 

124 Ibid., p. 10. 

I2’New Jersey County and Municipal Government Study Com- mission, Corrections Policy for the 90S, p. 61. 

126 Ohio Governor’s Committee on Prison and Jail Crowding, Final Report, p. 38. 

I2’Harris County Community Justice Council, Hurrik County 

Community Justice Plan: Fiscal Ear 1991 (Houston, 1992). 

128 Patricia Conley, “Counties Review Sentencing Standards,” 

County News, November 5,1990. 

129 Comptroller General, State and County Probation: Systems in 

Crisis, p. iv. 

“Recidivism of Felons on Probation, 1986-89.” 

Final Report. 

Crisis, p. 74. 

Final Report, p. 128. 

I3l Vera Institute, Alcohol, Drug and Crime (1989), p. 2. 

132 Russell Committee, The Drug Crisis and Underfunding of the 

133 COG, Drugs and the Judicial Response, p. 23. 

134 Hennepin County Board of Commissioners et al., Hennepin’s 

Criminal Justice System and the New Public Safety Facility, p. 17. 

135 Comptroller General, State and County Probation: Systems in 

crisis, p. 51. 

136 Ibid. 

137 Ibid., p. 167. 

‘38 Cindy S. Rosenthal, Opportunities in Community Corrections 

(Denver: National Conference of State Legislatures, 1989). 

139 Taken from focus group discussion of chief probation officers, 

1990. 

lmBany J. Nidorf, “What Do You Do When You Can’t Build 

Your Way Out” (unpublished paper), p. 6. 

New Jersey County and Municipal Government Study Commission, Corrections Policy for the 90’s. 

Justice System in Baltimore City, p. 27. 

142 Ibid., p. xvi. 

143 Gregory, The Crisis in the Michigan Criminal Justice System, p. 

18. 

144 Curtis Campbell, Candace McCoy, and Chimezie A.B. Osigweh, Yg, “The Influence of Probation Recommendations on 

Sentencing Decisions and Their Predictive Accuracy,” Fedeml 

Probation 54 (December 1990). 

145 “Recidivism of Felons on Probation, 1986-89.” 

‘&Nidorf, “What Do You Do When You Can’t Build Your Way 

Out,” p. 6. 

147 John D. OHair, “Cut Crime through Changes in Prisons, Probation, and Parole,” Detroit Free Press, December 18, 1990. 

14* (California) Commission on Inmate Population Management, 

Final Report, p. 4. 

149 Ohio Governor’s Committee on Prison and Jail Crowding, Final Report, p. 38. 

Crime and Punishment: ilie Public’s View. 

120 U.S. Advisory Commission on Intergovernmental Relations 
5 -CAPITAL EXPANSION 

ll f Dresent trends continue. almost everv countv and 

state chrief executive, budget chief, and lawmiker wi face 

the need to build more prison or jail space in the coming 

decade. The difficulties in defusing the forces that have 

spurred recent sentencing trends and in generating the ex- tensive support needed for effective community alterna- tives make a continuation of present trends likely. Even if 

cost restraints and court orders temper the effects of sen- tencing policies and enhance the use of alternatives, the 

relief may be short term. It is only the rate of growth that is 

slowed, but growth continues. 

On the positive side, the need to make a major capital 

expenditure can provide critical leverage for thorough sys- tem analysis, reconsideration of priorities, and establish- ment of sound planning procedures. Such efforts also af- ford an excellent opportunity to establish ongoing 

coordinating mechanisms for bringing independent crimi- nal justice officials together. 

This chapter highlights how states and localities have 

responded to these planning needs and coordinating op- portunities. In addition, it discusses4wo other distinct ar- eas: judicial involvement and the capital improvement 

process. From complex legal documents and constitution- al theory to the cost of nuts and bolts, these two issues rep- resent the extremes of general government elected offi- cials’ concerns and responsibilities. What they have in 

common is the potential to impede or support sound 

decisionmaking and program administration. 

HOW CAN YOU BE SURE 

YOU NEED MORE SPACE? 

Throughout this discussion, the assumption is made 

that elected officials want to spend only what is absolutely 

necessary on prisons and jails. These buildings are not 

points of civic pride, and no one wants to build space soon- er than it is needed, only to have it filled up. Therefore, 

the initial line of questioning is 

‘ 

“Do we redly need to build?” 

The first subquestion then becomes 

‘Why can’t more inmates be put in the existing 

space?” 

Followed by 

“Who is currently being held and for how long?” 

“Are people being held in an expensive secure fa- cility who don’t need to be?” 

And, finally, 

“HOW soon must the need be met?” 

“How much and what kind of space is needed?” 

Determining a Facility’s Capacity 

General government officials frequently become ex- asperated just getting an answer to the first question: How 

many can the current jail or prison system hold? Usually, 

the more inquiries and comparisons made, the more nu- merous and diverse the answers become. 

The following list of reasons for such diverse answers 

may seem overly technical at this point. But it is presented 

because it gives a quick overview of the major issues officials 

must be prepared to deal with in building correctional facilities: court decisions, accreditation standards, program operation, security, environmental regulation, and site limitations. 

Supreme Court rulings in 1979 (Bell v. Wolfish) 

and 1981 (Rhodes v. Chapman) held that placing 

two inmates in a 75-square foot cell or in a 

63-square foot cell was not in itself unconstitutional 

depending on the totality of other conditions. Prisons or jails built before this ruling usually have an 

original “design capacity” that does not meet this 

standard; consequently, their “operating or functional capacity” will be less.’ In contrast, a few sys- tems, including the federal system, are based on a 

design capacity of single occupancy, and by using 

the Supreme Court standard for doubleelling 

could increase capacity. For example, even after facilities under construction are complete in 1995, the 

federal system would be mted as being 32 percent 

over capacity under its traditional standard of single 

occupanw doubleelling all cells over 7O-square 

US. Advisory Commission on Intergovernmental Relations 121 
feet (except high security) would result in the system being 5 percent under capacity.* 

Court rulings also have stipulated the amount 

and types of out-of-cell space that must be available, which have been incorporated into the 

American Correctional Association’s (ACA) accreditation standards. These requirements, referred to as the “totality of conditions,” also can 

reduce the operating capacity of older facilities. 

ACA standards recommend that a percentage of 

secure, unoccupied units be available at all times 

to allow separation of inmates from the general 

population when trouble occurs. Security concerns also include having the excess capacity to 

handle weekend and seasonal surges in jail populations. Although prison and jail dormitories easily lend themselves to adding more bunk beds, the 

greater the number of inmates in one room, the 

greater the security risks. 

Finally, even if compromises are achieved on all of 

the above factors, potential suits over state and federal Clean Water Act violations may cap the amount 

of doubling-up that can occur in some prisons because many prison facilities are not on municipal 

sewage treatment systems. 

As this brief list demonstrates, weighing all of the factors in determining the capacity of a given jail or prison 

system is complex; therefore, elected officials will need to 

delegate review of the correctional system’s response. Too 

often, when elected officials become the arbitrators, it is 

hard to balance short-term capital cost-cutting with 

long-term operational concerns. Nevertheless, elected officials might need to be specific in directing the capacity analysis to identlfy any physical constraints, such as the number 

of toilets or the size of the kitchen, which, if corrected, can 

allow more prisoners to be housed in the facility. 

The next level of inquiry in determining space needs is 

to determine how the current space is being used. This is 

the golden opportunity for general government officials to 

bring criminal justice officials together in a joint effort tobetter integrate the system. This is particularly true for jails because they are the crossroad of the criminal justice system. 

Prison construction planning will be discussed separately. 

Reducing the Need for New Jail Space 

Building a new jail should be the last step to provide 

for the system’s needs, not the first. A coordinated examination of the best use of jail space can create support for 

all of the program initiatives discussed in the previous 

chapters. The following summary demonstrates how essential it is to get all of the independent criminal justice 

officials and agencies involved in analyzing how to reduce 

the need for new jail space. 

Pretrial Release 

The goal is to reduce the number of days of detention 

for persons who are typically released before trial. Police 

and prosecutors need to agree on the use of summons in 

lieu of arrest. Judges, magistrates, and jail intake personnel need to develop guidelines delegating release decisions so that they can be made on a 24-hour basis. The 

prosecutor, defense counsel, judges, the clerk of court or 

court administrator, and the pretrial services agency need 

to agree on expanded pretrial release alternatives and expedited bail procedures. 

Case Management 

The goal is to analyze and expedite case flow. The 

prosecutor, public defender, and court administrator need 

to agree on hearings for minor offenses. The prosecutor and 

the public defender should agree on the use of deferred 

prosecution. The sheriff and the court administrator need 

to examine notification procedures that track the status of 

each jail inmate; the prosecutor’s and public defender’s 

offices may also need to be involved. The prosecutor and 

the forensic laboratory need to establish priorities. The 

court administrator, prosecutor, and public defender need 

to agree on scheduling calendars. The chief judge and the 

probation department need to examine the use and content 

of pre-sentence reports to determine their timeliness. 

Alternative Sanctions 

The goal is to build support for effective sanctions, 

which do not require use of a secure jail bed. The sheriff 

and the probation department must agree on security responsibility. The prosecutor, judges, sheriff, and/or probation department must agree on program goals. General 

government officials need to agree on the location of 

non-secure alternative facilities for those convicted of 

DUI, probation violators, and substance abusers. General 

government officials also must be involved in developing 

guidelines for work assignments in the community. 

State Transfers 

The goal is to reduce the number of days inmates sentenced to serve time in prison are held in the local jail. The 

sheriff, clerk of court, and prison intake officials should 

examine the procedures used to notify the state that all 

the legal requirements have been fulfilled and a felon is 

ready for transfer into the state system, as well as theprocedures used to accomplish the transfer. The sheriff, prison intake officials, and parole officials need to resolve the 

holding of parole violators in jail. They also may need to 

address scheduling of parole hearings if minor felons be- come eligible for parole before they can be transferred 

into the state system. 

Using the Need for Jail Space 

as an Opportunity for System Analyses 

It is possible that, under the leadership of a chief 

judge or through the efforts of the sheriff, criminal justice 

officials have spent months reviewing operational alternatives before the request for capital expansion was made. 

Such internally generated cooperation is not typical, how- ever, given the traditional isolation of independent criminal justice officials, as will be discussed in greater length in 

Chapter 8. The more pronounced the isolation, the more 

crucial it becomes for the general government leadership 

to regard the building of a new jail as a prime opportunity 

to forge greater collaboration. 

122 U.S. Advisory Commission on Intergovernmental Relations 
Focus 

Criminal Justice System Analysis and Cooperation Related to Expansion 

of Hennepin County, Minnesota, Detention Center 

quest to the county board of commissioners. 

1986-1987-An internal county task force reviews 

the request. 

1988-The county board decides to establish a 

Public Safety Facility Committee to plan the 

new facility, chaired by a member of the 

county’s board of commissioners. This coordinating committee included city representatives (mayor, city council president, chief of 

police, and city coordinator); the county administrator; criminal justice officials (sheriff, 

county attorney, public defender, and the 

chief judge); a suburban police chiefs’ representative; and five citizen members. 

1989-The Minnesota legislature authorizes the 

county to issue bonds for planning and site acquisition, but directs that a new study be performed before construction bonds will be authorized. The state legislation stipulates that 

the county board, the sheriff, the county attor1990-The legislature receives the report. This additional analysis was conducted under the auspices of the County Justice Coordinating 

Committee. This ongoing committee, which 

meets monthly, had been created in 1988 “to 

respond to increasing criminal justice system 

pressures.” The committee includes two county 

board members, the sheriff, the county attorI ney, and the judges participate in the study. 

ney, the chief judge, a juvenile court judge, 

the mayor, and two city council members. 

This chronology lists six different groups that reviewed the need for additional space. In addition, the 

sheriff used the services of the National Institute of 

Corrections (NIC), a federal agency, for three different 

analyses of prisoner movements and population projec- tions. Furthermore, in 1981, the sheriff began meeting 

regularly with the chief judge to work on processing 

delay. These meetings have included the county attor- ney, the public defender, police officials, private attor- neys, and county staff. 

Although the time taken to proceed with construction has been costly in terms of leased space and system 

inefficiencies, the positive side includes significant 

long-term advances that have improved the administration of justice and have “reduced the seventy of the 

crowding” in the jail. Specifically, improvements al- ready implemented have freed up approximately 10 to 

15 beds on weekdays and 20 to 30 beds on weekends. 

Planned improvements could free up another 40 to 70 

beds daily. However, while this represents a reduction 

of more than 10 percent of the jail’s population, it is 

termed “inconsequential in the face of future demand.” 

Therefore, equally positive is the formation of the 

ongoing County Justice Coordinating Committee to expedite the resolution of operational problems and foster 

a climate of support for innovation. It is possible that 

had such a recognized coordinating committee been in 

place from the beginning, the process of gaining county 

board and legislative approvaj might have been expedited. 

Their “comfort level” would have been greater than it was 

with simply receiving a request from the sheriff. 

However, it is also important to note two admonitions in the 1990 report to the legislature on “ways and 

means to improve the administration of the criminal jus- tice system.” These provisos apply to planning 

trade-offs that must be recognized by general govern- ment officials who are successful in establishing orbeing 

able to work with a coordinated criminal justice system: 

1. The better functioning and coordinated the 

system, the less that can be gained by delaying 

the decision to build once the need is identified; and 

2. The better functioning and coordinated the 

system, the more building with “future flexibility is of paramount importance.” 

In other words, the better functioning and coordinated the system, the less fat there is to absorb shocks 

and the more important it is for general government officials to be responsive. 

Source: Hennepin County Board of Commissioners, Hennepin County Sheriff, Hennepin County Attorney, Fourth Judicial District 

Court, and Minneapolis Police Department, Hennepin’s Criminal Justice System and the New Public Faciliv (Minneapolis, 

January 1990). 

US. Advisory Commission on Intergovernmental Relations 123 
This opportunity is particularly advantageous because, 

in building a jail, general government elected officials gain 

new authority to command cooperation. Most criminal justice officials will respect the general government officials’ 

right to ask for a thorough review simply because they are 

asked to foot the bill. Furthermore, this political authority 

generally is backed by the general government’s legal authority not to take action if whatever conditions they deem 

appropriate-including cooperative efforts-are not met. 

Determining the Nature 

of Future Prison and Jail Needs 

The final area of inquiry in determining whether to 

build is future need. Budgetary oversight should look for 

the response in terms of what kind of space will be needed, 

not just how much. It is very important, however, that general government officials not interpret this to mean that 

they should make design decisions. This should ultimately 

be the purview of the sheriff or prison administrator who 

will be running the fa~ility.~ Instead, general government 

officials should be concerned about the various types of 

space needed and should convey early and clearly that 

they expect to see a level of analysis that identifies: 

1. 

2. 

3. 

4. 

5. 

The types of inmates that are being held in 

the state or county correctional system as a 

whole; 

Whether there will be any major shifts in 

these types of populations in the future; 

The types of space and levels of security being 

used to hold the various classes of inmates; 

The types of needs that will be met by the 

new facility; and 

A projection of the number of beds needed 

and the proportion of inmates requiring 

more costly security. 

The fifth factor-analysis of the types of prisoner populations to be housed-will be the most difficult to produce, but it is crucial. Correctional experts emphasize that 

this analysis is the first step in assuring that the design of 

the facility will minimize management problems. General 

government officials should regard this information as the 

most crucial step in controlling costs. For example, as 

noted in Chapter 3, jail expansion may provide the opportunity to separate the detention population from those individuals who have been found guilty and sentenced to 

serve time in jail. Those detained awaiting trial, such as an 

accused murderer or those with long criminal records, 

need much higher security and, therefore, a much more 

expensive facility than the type of person sentenced to 

serve time in jail, such as drunk drivers. 

The same relationship between the cost of the facility 

and its level of security exists in prison construction and is 

at the heart of prison planning. This is in contrast to jail 

planning, for which system analysis and coordination of 

first importance. The greater importance of analysis of 

security needs in prison planning derives from the fact that 

prison systems have fewer options for diverting inmates 

and because prison systems have large enough populations to make a separation of prisoners into different types 

of facilities feasible and, therefore, economical. However, as jail populations grow, the size of some subpopulations may become large enough to justify different arrangements. Finally, in addition to a security needs 

analysis, state prison systems should be expected to produce a separate analysis of the future needsfor female, geriatric, and long-term health services for those serving 

mandatory sentences who cannot be released. 

Projecting the need for space and analyzing the security 

needs of a prison system or in a jail design demands a sophistication in population projection that most jails and many 

prison systems cannot produce. As noted elsewhere, many 

factors determine how many people will be arrested, prosecuted, and sentenced to jail or prison, and how long they will 

stay. Because these criminal justice activities operate independently, they need to be tracked separately to determine 

their total effect. Unfortunately, too often, all that is available is a statistical projection of historic penal population totals, with no analysis of changes occurring in the system. 

It has been traditional to address changes outside the 

system, which are expected to affect the total sue of the inmate population, under the assumption that if there is a 

change, for example, in the numbers of people aged 18-30 in 

the general population, there will be a corresponding change 

in the inmate population. However, this type of modeling 

has been ineffective in dealing with the ovemding effects of 

increased drug arrests, which have brought in a much higher 

percentage of females and blacks than traditionally have 

been in the general inmate population, or with the increased 

convictions for sexual or other abuse of females, which represent higher percentages of older white males. 

Almost all systems should be able to produce an analysis of the first four factors, although the workloads andlor 

training of existing staff may require the use of outside 

consultants. The more advanced the internal planning and 

coordination of the criminal justice system, the less need 

there will be for consultants. Nevertheless, targeted use of 

consultants may surface alternative approaches to problems that were assumed to be endemic. They also may give 

support to system administrators when program suggestions from general government officials are not fruitful. 

For example, the Minnesota legislature suggested that 

Hennepin County consider a night court to shorten the 

time that defendants are detained in jail. An outside consultant, through the National Center for State Courts, was 

able to draw on national examples to identify the limits of 

such a proposal.4 

There are models that use a different statistical approach to simulate trends within the criminal justice system. 

They separately track a number of different offense categories, including not only how many areconvicted, but for 

how long they are sentenced and how long they will serve. 

Such systems may require historic information on more 

than 100 variables and a means to update the information 

regularly. Several projection models are summarized in 

124 U.S. Advisory Commission on Intergovernmental Relations 
Focus 

Determining Future Space Needs 

and Developing a Ten-Year Master Plan in Virginia 

In 1989, the Virginia Department of Corrections 

(DOC), following policy direction from the governor’s 

office, developed a ten-year master plan for prison 

construction. The nature of the governor’s direction 

was that, although the outgoing administration had increased prison capacity by 45 percent, the ongoing 

need for construction and its type, location, and timing 

needed to be documented for future administrations 

and for the legislature. 

The ten-year plan was built on elements that had received legislative support during the just-completed 45 

percent increase. First, because part of the increase had 

to be camed out under mid-year emergency legislation 

in order to provide space rapidly for unanticipated 

growth, there was strong legislative and executive budget 

support for a sophisticated population projection model, 

which the DOC had just brought on-line. Elected officials also were better able to focus on the intractable 

need for prison space because the model more clearly 

identified the limits of relief that could be provided by 

alternatives, such as the Community Corrections Act. 

Another element of consensus was the use of repeat 

design. During the previous construction, five basic designs had emerged that could be clearly identified and 

understood by the legislature in terms of relative cost 

and size: maximum-security buildings with a corridor design of single cells, medium-security buildings with cells 

large enough for two inmates surrounding an open day 

area, medium- to minimum-security dormitory facilities 

varying in size and perimeter security, small intensive 

program facilities, and standardized program and support buildings. These components also could be combined into multiple-facility complexes. 

The third component accommodated two legislative 

cost-savingpolicies that affected inmate housing. First, to 

save money on construction, elected officials believed it 

was reasonable to house approximately half of the inmate population in dormitories. Given this legislative direction, prison administrators were able to address security concerns by focusing on perimeter security and by 

planning for a small percentage of single cells to be constructed alongside dormitories to permit immediate separation of troublesome inmates. 

The second cost-saving directive came from the legislature’s historic reaction to federal court rulings elsewhere, which led to a stance that all medium-security 

cells should be built large enough to house more than 

one inmate, if necessary. This decision to build in excess 

capacity was balanced by legislative budget language that 

stipulated the amount of double-celling that would be 

used, because the more double-celling, the less need for 

new construction. The ten-year plan not only sized support facilities accordingly, but prison administrators strove 

to get the understanding of elected officials that, while 

honoring the system-wide average, they needed to retain the flexibility to vary the actual amount of 

double-celling to reflect the mission of each prison and 

that inmate management dictated a lower level of 

doubling-up in dormitories. 

A fourth area addressed in the plan was siting and the 

Environmental Impact Statement (EIS) process. The need 

for a comprehensive approach to deciding where prison 

expansions would be located was felt strongly by the governor, various cabinet members, legal counsel, prison officials, and those legislators who had been involved in recent site determinations. In the plan, DOC identified 

nine areas in the state as locations for new prisons, inventoried the existing facilities for expansion, and set priorities for the appropriateness of each type of prison facility 

for each area. This statewide assessment presumed that 

the more sites addressed in a single EIS review, the less 

the use of alternative sites could be raised as an argument 

against any other given site, since all possible sites would 

be used eventually. Furthermore, DOC administrators 

strove to underscore to elected officials that early site 

identification was crucial to timely completion of facilities without costly construction changes. 

The final area of concern, particularly within DOC 

management, was to clearly spell out the calendar that 

must be followed to open each facility in time to meet population projections. Legislators and budget officers readily 

appreciated the specificity produced by this final planning 

step. A ten-year matrix was developed with a timeline for 

each of the 26 proposed facilities as to when the legislature would have to appropriate site acquisition funds, 

when the site would have to be approved and purchased, 

when the legislature would have to appropriate design 

funds, and when construction funds would have to be appropriated. Approximate costs, based on the use of repeat designs, were also presented for each fiscal year. 

The existence of Virginia’s ten-year DOC master 

plan depended on the willingness of an outgoing governor to announce publicly that his administration had not 

“solved” the prison problem, the development of a significantly more sophisticated and credible means to project 

prison population growth, the increased understanding of 

the problem within the executive department of budget 

and the legislative budget staff, and the sophistication 

that the Department of Corrections had gained in the 

first ad hoc round of dealing with the explosive growth in 

the prison population. 

Like all planning documents, this master plan will be 

modified by the action of succeeding governors and the 

legislature as conditions warrant. Nevertheless, it places 

cost ramCfications of currentpenalpolicies, and the need for 

timely action, clearly in the public arena. 

U.S. Advisory Commission on Intergovernmental Relations 125 
Chapter 8, and the National Institute of Corrections can 

assist a prison or jail system in reviewing its needs. 

Whatever statistical model is selected, elected officials need to be aware of two constraints in their desire for 

accurate inmate population projections. First, because 

each system is unique, ready answers will not be available 

unless an investment has been made in developing an accurate data base. Every state’s criminal justice system 

reacts differently to crime and has different demographic 

conditions that influence crime. This is equally true for each 

locality. Therefore, a projection must be based on an accurate, individualized data base, which takes time to develop. 

Second, accurate projections cannot be derived from 

statistical analyses alone, no matter how sophisticated. 

Everyone who has dealt with computers has heard the admonition, “garbage in, garbage out.” All projection programs require a number of assumptions, such as how drug 

arrests will continue to rise, how installing a computerized 

fingerprint identification system will affect convictions, 

when revised parole guidelines will be put into effect, and 

what categories of inmates may experience reduced parole rates. Relevant assumptions must be developed cooperatively throughout the criminal justice system and be reviewed widely. Even when the best informed subjective 

judgments are brought to bear on the objective statistical 

model, these observations from the Hennepin County jail 

study still need to be kept in mind: “forecasting [is] more of 

an art than a science. . . . The fact that a difference [in forecasts] exists should be no surprise to any reader who follows 

such statistically popular areas such as the stock marketT5 

Summary 

Elected officials enter a complex world as they exercise their oversight responsibilities in the decision to build 

prison or jail space. Their contribution to the right decisions being made will be measured by their ability to appreciate this complexity while holding criminal justice officials accountable. Criminal justice officials must be able to 

document capacity limits, to catalog alternative programs 

and policies that can reduce space needs, to present an analysis of the specific types and numbers of offenders who can 

be diverted by these alternative programs, and to demonstrate professional competence in making population projections. The process of producing this basic information will, in 

and of itself, create criminal justice system improvements. 

If the process is not working because criminal justice 

officials are not responding, then the general government 

elected official will need to marshal the leadership to insist on a collaborative approach, rather than adding to the 

lack of cohesion by imposing judgments from the outside. 

On the other hand, if thoughtful criminal justice collaboration is present, then general government officials need 

to join constructively in that effort. 

The Chinese character for “crisis” combines the characters for “dangerous” and for “opportunity.” A prison or 

jail overcrowding crisis is often regarded only in terms of 

the danger it represents to the staff, to the inmates, to 

maintaining the integrity of sentencing decisions, to general budget priorities, and to the possibility of federal 

court intervention. The broad public interest would be 

well served by focusing instead on the singular potential 

presented by prison and jail overcrowding to forge criminal justice coordination and planning. 

GENERAL GOVERNMENT OFFICIALS’ 

RESPONSIBILITY IN BUILDING 

PRISONS AND JAILS 

Once the decision is made to construct a prison or jail, 

general government elected officials are presented with a 

range of political issues, intergovernmental responsibilities, and nuts and bolts challenges to protect the public 

purse. Capital outlay authorization often must overcome 

broad political concerns. Facility design issues provide 

great potential for productive intergovernmental interaction. Considering long-term operating costs, challenging 

red tape, and managing construction are tests of government’s ability to get the job done. 

Sources of Funding 

Opposition to funding will be held to a minimum if 

general government officials have exercised their responsibility to hold criminal justice officials accountable for 

documenting current capacity, coordinated efforts for efficient system management, and analyzing the amount 

and nature of future need. Therefore, securing the money 

to build a jail or prison depends heavily on the decision 

processes described in the previous section. The votersor the state funding authority in those states that assist localities-will expect answers to the same basic questions. 

The actual authorization for the capital outlay depends on the source of funding. The most common 

sources of funding and the political dynamics of the authorization process are as follows: 

General Tax Revenue-Capital outlay authorization may be the final step of the decision process 

to approve the need for additional space. This is 

particularly true for prisons that are funded out 

of general tax revenues through the annual capital improvement budget of the state. Politics will 

be limited to the legislative/executive politics of 

setting budget priorities. 

General Obligation Bonds--The documentation 

of the need for correctional space may have to be 

put before the voters. If proper analysis has been 

done, most political questions will be resolved 

well enough to carry the issue at the polls. 

State Funding of Local Jail Construction-At 

least seven states (Virginia, Cal$ornia, Kentucky, 

Louisiana, Alaska, Georgia, and Ohio) provide 

funding for local jail construction.6 In this instance, state-local relations becomes the political 

focus because the granting of state funds is seldom automatic and entails some degree of state 

126 US. Advisory Commission on Intergovernmental Relations 
review of the local decision. Not surprisingly, the 

greater the state aid, the more substantive the review. In addition, most states cap the amount allocated to localities. 

For example, if state funds come from a general obligation bond, the bond authorization will 

limit the amount of money available. Therefore, 

if more localities apply for funding than the 

money available, the amount they receive may be 

reduced, or there will be a limit on the number of 

localities receiving funds. In Ohio, for example, 

although state appropriations have provided for up 

to a 50 percent state match for county full-service 

jails, no facility has received more than 30percent 

state funding for single-county or 42 percent for 

multijurisdictional jails7 As the California case 

study notes, only a limited number of localities 

receive funding from each state bond, although 

each does receive 100 percent of the cost of its jail. 

In states that use general tax revenues, the 

total amount contributed to any one locality is 

capped, at least in part, to avoid localities being 

able to cash a blank check on the state treasury 

for their construction decisions. For example, in 

Virginia, while small projects will receive 50 per- cent state funds, no locality can receive more than 

$1.2 million. It is notable, however, that in an effort 

to influence local decisions through its state fund- ing, Virginia has removed this dollar cap for region- al jail facilities, which are eligible to receive 50 per- cent funding no matter how costly the facility. 

Private Financing- Several private companies 

design, finance, build, as well as operate prison 

facilities. They have great interest in equity financing because, of all of their services, it offers 

the most secure opportunity for profit. The growing popularity of privatization has helped overcome concerns about the additional cost to the 

public of such private financing. Therefore, as inmate population growth has necessitated aggressive building programs, governments have turned 

to lease-backs and other private financing alternatives. For example, financing five prisons with 

general obligation bonds between 1985 and 1990 

caused a severe drain on South Carolina’s bonding capacity.s The sixth prison will use a design-build-finance private consortium that will 

lease the prison to the state. 

Drug Forfeiture Funds-The federal government has been able to use substantial funds from 

asset forfeitures for prison construction. In May 

1990, the U.S. Attorney General reported that 

“drug traffickers [were] financing their own ‘housing’-to the tune of $376 million in new prison 

construction!’* Recent action by many states to 

enact state laws parallel to federal forfeiture laws 

can present a similar potential to use forfeiture 

funds for state prison and jail construction. As the 

Attorney General’s statement indicated, the public politics of such financing are good, although 

resistance could come from other criminal justice 

agencies that have made use of the funds. 

This summary of financing would not be complete 

without mention of one other element that influences the 

political receptivity to jail and prison construction: the ma- jor budget shock it represents. This is especially true for 

county jail construction. The average cost of the minimum 

and medium security prisons opened in 1989 was $30,000 

to $50,000 per bed, and the average cost of additions to ex- isting facilities was $15,000 per bed.1° Even the debt service on a 200-bed jail represents a significant budget increase, especially in counties having relatively small 

budgets that do not include school debt or public works 

projects other than those that are financed by revenue 

bonds. Therefore, even if the need is documented and 

there is reason to believe that voters will accept the need, 

there still may be strong political reluctance based simply 

on the magnitude of the cost. 

State Oversight of Local Jail Construction 

Another reaction to the extraordinary local budget 

impact of constructing new jail space is to seek state fund- ing. Increased state funding often recognizes the broad responsibility that the state has for criminal justice. Not only 

are many jail inmates accused of breaking a state law, but 

frequently the demands on state prison and probation ser- vices are directly affected by the lack of jail space. Argu- ments against the state assuming more responsibility to 

fund jail construction include limited state funds, tradi- tional county responsibility, the use of jail terms for violat- ing local ordinances, and limited state control over local 

construction decisions. 

No matter what balance of stateAoca1 funding is de- cided on, state involvement in local jail construction decisions can take on an intergovernmental focus of its own. 

Three factors influence this focus. First, most county officials undertake a jail construction project only once in 

their careers, while many states are involved in almost 

continuous construction. Second, the design of a facility is 

crucial to its long-term operating costs and security. Third, 

the design of a penal facility should reflect the inmate 

management philosophy of its operator. There is general 

agreement that the intergovernmental resolution to balance these three factors should be: The state can and 

should help localities avoid costly operating errors, but the 

state assistance should be given with enough flexibility to 

accommodate local penal philosophies. 

The California focus study represents an innovation 

in state assistance, which uses the need for new jail space 

to leverage increased local coordination. In contrast, 

many states limit their involvement to their regulatoryauthority. Such state regulatory requirements cover minimum 

standards, such as the number of square feet per inmate and 

the capacity of kitchen, out-of-cell, and lavatory facilities. 

These state standards usually reflect advisory standards de- veloped by the American Public Health Association, the 

American Correctional Association, and the U.S. Depart- ment of Justice’s Federal Standards for Prisons and Jails. 

U.S. Advisory Commission on Intergovernmental Relations 127 
Focus 

California’s Role in Local Jail Planning and Finance 

The California legislature worked with two 

successive governors to forward five statewide bond 

referendums between 1980 and 1988 totalling $1.455 

billion for construction of local jails. Between 1980 

and 1984, state funds provided about 14,000 jail beds, 

while county funding paid for another 10,000. Three 

elements are central to the California program: local 

system planning, state prioritization, and 100 percent 

state funding. 

State legislation requires that county criminal justice committees be set up to examine the role of the local 

jail. These committees are required to complete a thorough needs assessment and alternative analysis to support their need for new jail space. This process has fostered a better flow of information between the jail and 

the court. It has led to procedural changes in booking and 

pretrial detention. It has highlighted the need for significant technical improvements in population projections. 

The state-required process also has forged support among the independent criminal justice authorities for alternative programs. For example, the Los 

Angeles County sheriff testified before the board of 

supervisors in support of the probation department’s 

budget requests that: “These programs of the Probation Department [community work crews, intensive 

supervision, electronic surveillance, work furlough, 

and others] reflect the kind of cooperative spirit that 

must be shared by each and every component of our 

criminal justice system ifwe are to succeed in solving the 

custody crisis.” 

Local review frequently has led to significant 

changes in the proposed jail facility. Therefore, it determines over one-third of the decision for state funding under the following criteria developed by a state advisory 

committee to the department of corrections, which administers the funds: 

Degree of Need 

Crowding: 102 points 

(with subtotals for present and future 

crowding as represented by numbers 

and percentages) 

(including fire and life safety, 40 

points; dilapidation, 50 points; and 

other problems) 

Facility Problems: 125 points 

County Eflorts to Solve Jail Problems 

Alternatives to Incarceration: 67 points 

(with subtotals for specific programs 

and for “system performance” 

measures such as incarceration rates) 

(including past capital expenditures, 

compliance with minimum jail 

standards, quality of planning, and 

readiness to proceed.) 

Other Past Efforts: 50 points 

Finally, maximum state pressure for thorough local 

jail planning was achieved and justified by the state’s decision to fund the top-ranking projects 100 percent, 

rather than giving something to everyone. While this 

decision initially created an outcry from all the un- funded counties that had applied, it produced new appreciation for the level of local analysis it would take to 

be funded by the state. Perhaps because state funding is 

neither token nor indiscriminate, four succeeding state 

bond referendums have had solid political backing. 

Source: U.S. Department of Justice, National Institute of Justice, “Construction Bulletin: From Arizona to South Carolina: Transfer 

of a Prison Design Model,” NIJReportr; Washington, DC, August 1990. 

Additional general health, fire, and building code requirements may be enforced by other government authorities. 

However, such regulatory oversight usually does 

not look at operating concerns, such as whether guards 

have unobstructed lines of sight or whether design 

changes can eliminate security posts for significant 

long-term savings. Some states and the federal government try to achieve such an operational design review by 

encouraging localities to use national inventories of recently constructed jail and prison facilities. For example, the Construction Information Exchange is a new 

National Institute of Justice (NIJ) program that has established a National Directory of Corrections Construction, which is a guide to over 250 jails and prisons built 

since 1978 with information on site adaptation, construction costs, staffing levels, and operational costs. 

The NIJ program also puts state prison and local jail officials in contact with colleagues who have experience 

with particular designs.” 

The federal government’s altruism in assisting states 

and localities to use tested designs is mirrored by some 

states as a service to their localities. For states that contribute to local jail operating costs, however, there also is a 

direct self-interest in encouraging design efficiencies. If 

the state is not involved in the initial design, the potential 

for state-local funding conflicts is heightened. 

For example, Virginia, which ranks highest in state 

funding of local jails,I2 pays the salaries of sheriff’s deputies (guards). The number of guard positions for each local 

jail is determined by the state compensation board. This 

board looks at state needs as a whole and attempts to 

maintain equity across jurisdictions. On the other hand, 

the state DOC performs security audits as part of its jail 

certification program. DOC certification may require 

128 U.S. Advisory Commission on Intergovernmental Relations 
more staff positions because of the layout of the jail than 

the compensation board has funded. Localities argue 

that the state should fund what the state requires. The 

state argues that the state should not have to fund staff increases dictated by inefficient local design decisions. 

Whether operating costs are a significant intergovernmental concern or are funded by the same unit of government as construction, general government officials 

need to be aware that operating costs over the life of a jail 

or prison will be at least 10 times the construction ~0sts.l~ 

Therefore, in both prison and jail construction, while the 

design configuration should remain in the hands of the 

sheriff or DOC, the government officials who will be funding the operational costs of the facility are exercising legitimate oversight to set policy for staffing ratios early in the 

design process (see Figure 5-1). 

Performance-based standards are one way that a state 

can influence localities to make reasoned design decisions 

without dictating actual design. For example, the state can 

tie its jail construction funding to a guardhmate staffing 

ratio that does not exceed a state-specified level. Such a 

requirement also would benefit local general government 

officials by surfacing staffing requirements well before the 

jail is opened. This can help avoid the situation that occurred in a few California counties where new jails remained unopened because the counties could not afford 

the required staffing. One jail sat empty for over a year.14 

Prototype designs, as mentioned in the focus study of 

Virginia’s 10-year plan, is another approach being used increasingly to enhance reasoned decisions in both prison 

and jail construction. Repeat designs reduce surprises. This 

not only cuts construction costs; it allows for uniform operation, budget control, training, and security in large prison systems. Any structural or operational problems that do surface 

can be eliminated in the next adaptation. Standard items 

such as windows, fixtures, and roofig can be mass ordered. 

Contractors can bid on a prison with documents virtually 

identical to facilities that they have already built. 

Use of prototype designs has taken on an expanded 

intergovernmental dimension with the recent increase in 

construction activity. The plans for a federal prison in 

Phoenix were adapted for use by South Carolina under 

NU’S Construction Information Exchange. The South 

Carolina facility was opened on a “record schedule and 

budget.” This intergovernmental cooperation also was 

able to resolve persistent legal questions, so that both the 

U.S. Bureau of Prisons and South Carolina have full rights 

to the plans and construction documents for future use.15 

Figure 5-1 

The Million-Dollar Prison Cell: $1,282,293 

$85,000 

Direct 

Construction 

costs 

$183,000 

Debt Service 

‘0 Years X 10% 

$1,0 14,293 

30-Year 

Operational Costs 

1 Source: National Council on Crime and Delinquency, 85 Ears of Justice Reform, 1991 

~~ 

U.S. Advisory Commission on Intergovernmental Relations 129 
Government Officials 

as Construction Managers 

Along with financing and early consideration of operating costs, construction management represents another 

important area of general government involvement in 

prison and jail construction. The challenge in construction 

is for elected officials to strike the balance between stewardship of the public purse and government efficiency. 

Many states and some localities have been under 

great pressure to expedite prison and jail construction. 

This may be due to court orders or simply the need to 

maintain reasonable operating conditions in the face of 

population surges. The need for expedited construction 

can involve general government officials in a number of 

policy decisions, for example: 

EIS Review and Comment -Expedited or concurrent review by environmental agencies may need 

to be used. This may be accomplished by executive order or it may require emergency legislation, as was enacted by Oregon in 1989.16 

Emergency Budget Authorizations-If population 

projections are suddenly exceeded, as they were 

in 1988 and 1989 in many jurisdictions, close cooperation may be required between the executive and 

the legislature to provide emergency space. Even to 

maintain a planned construction program, annual 

budget authorization procedures may need to be 

examined to assure that contracts can be let efficiently. Such a review of red tape may benefit capital outlay procedures in other government areas. 

Construction Accountability -The high level of 

prison construction in many states has led to an 

examination of who should be responsible for 

oversight: a general services agency with expertise gained from overseeing other government 

construction or the corrections department that will 

be directly affected if there are construction delays. 

Policy Compromises-Most experienced elected officials appreciate that compromise is not always 

bad. For example, although the use of inmate labor may have to be limited to speed construction, 

general government officials should expect savings from the increased use of repeat designs. 

Some of these procedural decisions require action by 

a majority of the elected officials. Others-including the 

specific cost oversight considerations discussed belowinvolve only the top leadership, such as the governor’s office, the county executive, or the budget committee. 

The following factors are key to cost-control decisions 

and oversight by general government officials: 

w The later in the construction process that changes 

are made, themore costly. The direct responsibility of general government leaders is to finalize 

the site decision as soon aspossible. Their oversight responsibility is to assure that the prison 

or jail administrator is fully involved in the design phase before the start of construction and 

regards decisions as essentially final to avoid 

costly change orders. 

Average cost estimates may be significantly altered by 

site adaptation costs, availability of utilities, and 

the level of security the facility is designed to provide. Similarly, cost estimates for renovations require detailed knowledge of asbestos removal, 

health code requirements, and structural soundness. The direct responsibility of general government officials is to provide budget flexibility until 

these factors can be determined. Their oversight 

responsibility includes establishing a detailed 

long-range planning process that identifies these 

factors early. 

w 

rn Correctional facilities are complex. To save 

short-term and long-term costs, the direct responsibility of general government leaders is the 

same as their oversight responsibility. They should 

require assurance that there is professional competence in construction management and an early, 

comprehensive value-engineering review. However, no single individual, especially elected officials, 

should be able to impose sole judgement. 

Summary 

This entire overview of prison and jail construction 

can be summarized in the same way: no single individual 

should be able to impose sole judgement. The magnitude 

of the budget impact for construction and operating costs 

makes it imperative that general government officials become involved. However, productive involvement depends on respecting the balance that needs to be struck 

between professional experience and political reality. 

Correctional officials have the responsibility to present 

well thought-out options and consequences of construction decisions. General government officials have the responsibility to address budget and environmental concerns by using that information or calling for more. 

Timely completion depends on the same information flow. Correctional administrators can present consequences and they can expedite their own decisionprocesses. Ultimately, however, it is general government 

leaders who will establish the priority for timely completion by initiating the funding decision and, as necessary, 

conveying a sense of urgency to other agencies involved 

in construction. 

Finally, intergovernmental assistance can be very important in making informed decisions. Information banks, 

performance standards, and requirements for criminal 

justice impact analysis need not impinge on local integrity. 

Instead, the earlier that general government officials are 

aware of these initiatives, the more they should appreciate 

that they represent crucial guidance in a field where most 

people have little experience. 

130 U.S. Advisory Commission on Intergovernmental Relations 
CONSEQUENCES OF INACTION: 

COURT INTERVENTION 

For many governments under court order for prison or 

jail overcrowding, there is only one intergovernmental issue: 

federal court intervention. As in most heated disputes, truth 

lies on both sides. Many states and localities would not have 

undertaken adequate capacity expansion without court action or a threat of suit. At the same time, some court orders 

have gone beyond prevailing practices and have intruded 

into administrative and legislative responsibilities. 

Some states and localities have been reluctant to recognize the need to expand their correctional facilities. 

DOC or sheriff protestations of capacity restraints are 

brushed aside by general government officials: “You told 

us that last year and the year before and the year before 

that. Yet, you’ve always found room and nothing has exploded.” Unsophisticated population projection models 

have been inadequate and/or easily manipulated by general government officials who resist surfacing the need for 

construction so they can divert money to more popular 

programs. Even complex statistical projections have failed 

when there is no subjective review by and coordination 

with other criminal justice agency initiatives. 

Beyond such conscious avoidance, as this chapter already has established, even well-intentioned states and localities will find it hard to avoid overcrowding. The complexity of prison and jail construction makes a timely 

response to explosive population increases extremely difficult. Even expedited prototype construction on an existing site seldom can be completed in less than two years 

from budget authorization to occupancy. The process for 

most facilities takes more than five years if it begins with a 

comprehensive system analysis of alternatives or it involves siting controversies (discussed in the next chapter). 

Furthermore, many states and localities must overcome both long-term neglect and explosive population increases. For example, until the 1980s, no new prisons or 

state youth institutions had been built in California for 20 

years. Despite an aggressive building program design that 

will increase the system’s capacity from 28,155 inmates in 

1984 to 72,233 in 1994, the California system will be more 

overcrowded in 1994 than it is today (see Figure 5-2).17 

Given the lack of political reward for spending large 

sums on prison or jail construction and the rapid increases 

in the number of persons incarcerated since the 

mid-l970s, it is not very surprising that 33 states are under 

federal court order for overcrowding.1s In addition, 25percent of the 508 jurisdictions that have large jails (more 

than 100 inmates), and consequently hold approximately 

81 percent of all jail inmates in the country, are under 

court order to limit population in at least one jail.lg 

These federal court orders have been a significant 

source of intergovernmental tension. The tension has its 

roots in the constitutional protection of the rights of the 

individual versus the will of the majority. Therefore, it is a 

balance of power issue between judicial interpretation of 

cruel and unusual punishment and the executive and legislative reflection of the electorate’s priorities. However, 

given that the most far-reaching decisions have been entered in the federal courts, in practice, it also has been 

framed as an intergovernmental issue of federal standards 

of humane prison and jail operation versus state and local 

government penal philosophies. 

The remainder of this chapter reviews specific concerns that have surfaced in trying to achieve an acceptable 

interbranch and intergovernmental balance. A brief history of the evolution of court interventions sets the stage. 

Figure 5-2 

California Department of Corrections Population Projection versus Design Capacity 

(assumes no 1990 or 1992 bonds for new construction) 138,640 

1984 1986 1988 

Years 

1990 1992 

* Includes 8,030 community beds. 

Source: CDC Offender Information Services. 

U.S. Advisory Commission on Intergovernmental Relations 131 
This is followed by a discussion of the type of court oversight that has occurred and its ramifications, with particular emphasis on accreditation, the role of court masters, 

and the duration of court orders. The ramifications of this 

judicial oversight stress the involvement of elected general government officials and the effect of population caps. 

Finally, prospects for change are discussed, including indications of reduced federal court involvement and the role 

of individual state and federal judges. 

Evolution of Court Response 

to Conditions of Confinement 

Application of the U.S. Bill of Rights to protect offenders is a relatively new phenomenon. Even more recent is the notion that federal courts should intercede in 

state correctional systems and remedy perceived constitutional violations affecting inmates. Before the 1960s, the 

judicial role in corrections was limited to the interpretation of statutes and review of some administrative actions. 

By the mid-l960s, the federal judicial posture regarding 

the internal management of prisons had begun to shift to 

active involvement. 

This increased federal court activity was not limited 

to, nor was it exclusively spurred by, deplorable conditions 

in state and local corrections systems. It was part of a 

broad philosophical focus on federal oversight, which included mental health treatment, welfare administration, 

education finance, and school desegregation. All of these 

policy areas now have judicially determined criteria that 

state officials must follow in order to achieve compliance 

with federal court orders. 

In the field of corrections, federal court decisions 

have been based largely on the Eighth Amendment’s protection against cruel and unusual punishment, the Fourteenth Amendment’s due process and equal protection 

guarantees, and the federal Civil Rights Act of 1871. These 

federal provisions have not been applied just to remedy 

overcrowding. Whereas 33 states are under court order 

for conditions of confinement that include overcrowding, 

eight more states have been successfully sued for unconstitutional administrative practices alone, some of which 

include violations of First Amendment rights of freedom 

of religion and speech. Such judicial oversight is almost 

without precedent among Western nations where, in lieu 

of constitutional litigation, the tendency has been to rely 

on special inspectorates and procurator offices, supervisory judges and magistrates designated for this particular 

purpose, and visiting commissions and 

The swing toward active court intervention has been 

seen as necessary but sometimes excessive. The following 

comments of the U.S. Supreme Court in Bell v. Worfsh 

(1979) express the dichotomy well and highlight the fundamental intergovernmental balance at issue: 

There was a time not too long ago when the federal judiciary took a completely “hands-off” approach to the problem of prison administration. 

In recent years, however, these courts largely 

have discarded this “hands-off” attitude and have 

waded into this complex arena. The deplorable 

conditions and draconian restrictions of some of 

our Nation’s prisons are too well known to require recounting here, and the federal courts 

rightly have condemned these sordid aspects of 

our prison system. But many of these same courts 

have, in the name of the Constitution, become increasingly enmeshed in the minutiae of prison 

operations. Judges, after all, are human. They, no 

less than others in our society, have a natural tendency to believe that their individual solutions to 

often intractable problems are better and more 

workable than those of the persons who are actually charged with and trained in the running of 

the particular institution under examination. But 

under the Constitution, the first question to be 

answered in not whose plan is best, but to what 

branch of the Government is lodged theauthority 

to initially devise the plan. This does not mean 

that constitutional rights are not to be scrupulously observed. It does mean, however, that the 

inquiry of federal courts into prison management 

must be limited to the issue of whether a particular system violates any prohibition of the Constitution, or in the case of a federal prison, a statute. 

The wide range of “judgment calls” that meet 

constitutional and statutory requirements are 

confined to officials outside of the Judicial 

Branch of Government.*’ 

In 1991, the U.S. Supreme Court signaled a return to 

less intervention in a 5-to-4 opinion in Wilson v. Seiter. The 

majority opinion recognized that states often have limited 

resources to deal with tough problems and found that prisoners must prove more than the mere existence of poor 

prison conditions to establish cruel and unusual punishment. Justice Antonin Scalia observed that use of the 

word “punishment” in the Eighth Amendment implies 

some degree of intent. Writing for the majority, he also 

maintained that claims of unconstitutional prison conditions have to be analyzed one by one, rather than on the 

basis of whether the “overall conditions” are so bad as to 

violate the Constitution. The dissent noted that the standard ‘‘likely will prove impossible to apply in many cases. In- humane prison conditions often are the result of cumulative 

actions and inactions by numerous officials inside and outside a prison, sometimes over a long perid of time.”22 

The Nature of Judicial Oversight 

Federal court action has been both pervasive and detailed. As of January 1990, only five states had never been 

involved in some type of federal litigation challenging 

overcrowding and/or conditions in their prisons, according 

to the American Civil Liberties Union’s (ACLU) National 

Prison Project. As previously noted, 41 states (plus the 

District of Columbia, Puerto Rico, and the Virgin Islands) 

are currently under court order or consent decree to reduce 

population levels and/or improve the conditions of confinement in either their entire correctional system or a major fa- 

~ility.~~ As noted, approximately, 20 percent of all the nation’s jail inmates are in facilities that are under court order. 

132 US. Advisory Commission on Intergovernmental Relations 
For some, the pervasiveness of such federal court involvement in itself raises serious intergovernmental concern. Others may accept the need for court protection of 

imprisoned individuals, given their status as political pariahs, but they question the fact that individual judges can 

dictate administrative details. Not only is this seen as usur- pation of power, but solutions are sometimes marred from 

too limited a focus. Judges are seen as being concerned 

only about the inmate rights in the case before them and 

not about broader issues of public safety, institutional se- curity, system impacts, or general government budget lim- itations. Examples of court ordered remedies include: 

rn 

rn 

In Philadelphia, a 1988 federal court order 

stopped the jailing of defendants who are ar- rested on bench warrants because they fail to 

make scheduled court appearances. Since that 

order went into effect, bench warrants have in- creased from 20,000 to 34,000. According to the 

former staff director of a criminal justice task 

force appointed by Pennsylvania’s chief justice, 

“Why on God’s earth would anyone show up in 

court and face substantial risk of conviction and 

lengthy (often mandatory) prison sentences if he 

can remain free with impunity?”24 

In October 1985, a federal court ordered Tennes- see not to accept any felons into the state system 

unless there was space available. That order 

solved overcrowding in state facilities, but the inmates did not disappear. Almost immediately, 

the number of felons being held in local jails be- gan to increase.25 In 1989,25.7 percent of Tennes- see’s state prisoners were being held in local jails; 

in 1990,18 percent were reported backed ~p.2~ 

Following the court handing down a 248-page order in the Texas case of Ruiz v. Estelle (1980), 

there were twice as many riots in the Texas prison 

system in six months as in the preceding eight 

years; there were 13 escape attempts, compared 

to only two the previous year; and four inmates 

were killed by other prisoners, the greatest number in nearly a decade. According to observers, inmates had heightened expectations and officers 

were less certain about the enforcement of some 

rules and how they were to carry out their duties.” 

A study released in 1983 reported that “the 

costs of implementing guaranteed rights [from 

court orders] ranged from as little as $5 million 

for some county governments to as much as $1 

billion or more for some state governments.”28 

These costs have escalated in the ensuing decade. In a more recent example, the Georgia 

Association of Counties reported that over 

$240 million was appropriated for some 13,000 

prison and probation beds during 1989 and 1990 

to extricate the state from the threat of a lawsuit that would have resulted in federal takeover of the entire Georgia DOC.29 

These examples reflect the major administrative and political concerns that have arisen out of court actions: prisoner release, administrative interference, and cost. 

Several steps typically precede such court directives. 

First, a suit is filed. Although it must be filed in the name 

of a prisoner or class of prisoners affected by the alleged 

unconstitutional conditions, virtually all major suits have 

been spurred by outside legal counsel, such as ACLU. 

There then ensues a period of negotiation. If the negotiation does not result in a consent decree, the case will go 

before a judge (or, possibly, a panel of judges if a state or 

federal law is being challenged as unconstitutional). 

The period of negotiation may stretch for years. During that time, the court will become familiar with the de- tails of the situation, and the judge will be better able to 

determine whether the defendants are acting in good 

faith. For example, after years of negotiation with various 

Cook County (Chicago) officials, the judge ordered designated criminal justice officials to agree on a plan to relieve 

jail overcrowding, including officials such as the chief probation officer and the clerk of court, who normally were 

not included in the past. If any of the officials refused to 

participate, they could be held in contempt. 

Equally important, the criminal justice officials view 

negotiating a consent decree as a way to protect their interests. The alternative is a court order, developed as “the 

judge’s isolated response to facts and issues sifted through 

the adversary process.”3o However, general government 

elected officials are as apt to be critical of consent decrees 

as they are of court orders based on a finding of guilt be- cause they both represent a compromise between correctional administrators and inmate representatives. There- fore, the starting point is typically well beyond what has 

been supported by the legislature or the executive. 

Specific court directives also may be issued from the 

time the court agrees to hear the case if public officials or 

administrators are found to be not acting to relieve the 

conditions. These additional requirements may include 

restraining orders to halt an activity or contempt of court 

rulings. Such judicial actions are often the focus of the 

most intense separation-of-powers disputes, and descriptions of such disputes have been painted in polar extremes: a conscientious judge frustrated with recalcitrant 

statehocal officials versus resource-strapped state/local 

officials beleaguered by arbitrary rulings. 

Three aspects fuel this conflict: the elevated role of 

amici litigants, determination that “the totality of conditions” is unconstitutional, and the use of special masters. 

Unlike typical lawsuits, amici curiae or “friends of the 

court” participate fully with the lawyer who represents the 

inmate plaintiff(s). These public interest group lawyers, 

therefore, will meet with the judge assigned to the case 

during early negotiations. This can result in their using 

their broad awareness of penal suits to expand the inmate’s 

case to issues in which they perceive the judge has speck1 

interest?* What may start as a narrowly focused inmate complaint of inadequate medical care, as in Nm v. Alabama 

(1972), can become a class action for major penal reform. 

Rulings and consent decrees based on the totality of 

conditions may encompass a long list of items, many of 

US. Advisory Commission on Intergovernmental Relations 133 
which would not be found unconstitutional in another setting. Supreme Court decisions in 1991 and 1992, which will 

be discussed later, have called into question the practice of 

continuing a court order or consent decree until every 

condition is met. 

The use of special masters also can broaden the issues 

under dispute, and it can significantly increase the detail 

of the court’s intervention. Of the 41 states under court 

order or consent decree, 21 have special masters, monitors, or mediators appointed by the In most cases, 

the special master has the sole task of overseeing compliance with judicial orders. This allows the judge to be 

very specific in oversight and is usually the origin of complaints that the judge is running a jail or prison system. 

Examples of the kinds of intrusion that have occurred 

include critiquing the condition of the prison library’s law 

books, issuing pencils to inmates in solitary confinement, 

determining which inmates would be removed to community facilities, and having unlimited access for inmate interviews. Although Federal Rule of Civil Procedure 53 

provides for the appointment of special masters only when 

“some exceptional condition requires it,” the determination of “exceptional” is up to the judge. One judge may appoint a special master only “to observe and report theirobservations to the court”; another may give the special 

master the “authority to supervise, coordinate, and approve all steps taken by the defendants to effectuate com- 

~liance.”~~ Whatever the initial authority given the special 

master, it is enhanced by (1) limited responsibilities compared to prison administrators, (2) the fact that the master 

may hold the position longer than individual prison officials, 

and (3) the expertise of the master in the eyes of the judge. 

There has been a significant number of U.S. Supreme 

Court rulings that have urged judicial restraint to avoid overstepping the judge’s proper role in the balance of powers: 

In 1972-“Federal courts sit not to supervise prisIn 

In 

ons but to enforce the constitutional rights of 

all ‘persons’ including prisoners. We are not 

unmindful that prison officials must be accorded latitude in the administration of prison 

affairs, and that prisoners necessarily are subject to appropriate rules and regulati~ns.”~~ 

1974--‘We should not be too ready to exercise 

oversight and put aside the judgment of prison 

administrators. . . . The operation of a correctional institution is at best an extraordinarily 

difficult undertaking. . . [Prison officials must 

have] necessary discretion without being subject to unduly crippling constitutional impediment~.”~~ 

1979-“Inquiry of federal courts into prison 

management must be limited to the issue of 

whether a particular system violates anyprohibition of the constitution or, in the case of a 

federal prison, a 

In 1981-‘‘A prison’s internal security is peculiarly a matter normally left to the discretion of 

prison administrator^"^' 

In 1983-“Prison officials have broad administrative and discretionary authority over the institutions they manage”38 

From the Court of Appeals for the Second Circuit: 

In 1982-“The duty to protect inmates’ constitu- tional rights, however, does not confer the 

power to manage prisons, for which courts 

are ill-equipped, or the capacity to second-guess prison administrators. . . . Our task 

is limited to enforcing constitutional standards and does not embrace superintending 

prison admini~tration.”~~ 

These opinions are cited to demonstrate the length of 

time that the U.S. Supreme Court has been making the 

same point about the separation of powers. From the perspective of state and local officials interviewed for this 

study, little has changed. 

The duration of court orders is a final indication of the 

nature of judicial oversight. In most cases, compliance is a 

long and arduous journey that requires years of combined 

effort by general government and criminal justice officials. For example, inmate David Ruiz first filed suit 

against the Texas Department of Corrections Prison Director Jim Estelle in 1972. After years of federal and state 

investigation and court action, the case came to trial in 

1978. The trial lasted a year. In 1980, U.S. District Judge 

William Wayne Justice placed the entire prison system under court order for overcrowding and unconstitutional 

conditions. During those 10 years under federal court order, contempt orders were entered and vacated, a special 

master was appointed, and additional litigation was initiated because of the impact of changes in the state prison 

system on local jails. Judge Justice is expected to approvea 

final settlement between Texas officials and inmates in late 

1992,2Oyears after the suit was filed. It should be noted that 

Texas prison officials, the governor, and legislature bitterly 

contested federal intervention in the early stages. 

Texas is not an aberrant case. Numerous other states 

have had all or parts of their correctional system under 

court order for over a decade. The length of such suits 

have four origins: 

The detail and breadth of some court orders and 

consent decrees make compliance seem like the 

labors of Hercules. 

Following precedent set in civil rights appeals, 

judges need assurance not only that the unconstitutional practices have been discontinued 

but that there is no reasonable expectation that 

they will 

In many jurisdictions, increased law enforcement, longer sentences, and the war on drugs 

have overwhelmed much if not all of the progress 

made in the correctional system to remedy unconstitutional crowding and the program limitations such crowding may produce. 

State or local officials maybe slow to respond. For 

example, in Rufo v. Inmates of Suffolk County Jail, 

134 U.S. Advisory Commission on intergovernmental Relations 
the Suffolk County, Massachusetts, cases that 

were decided by the U.S. Supreme Court in 1992, 

the District Court suit was first filed in 1971. A 

new jail was supposed to have been completed by 

1983, but construction was not started until 1987 

and the facility was not opened until 1990.41 

Ramifications of Court Suits 

Threats of court suits and court orders have had nu- merous consequences. Correctional space and program 

needs have been addressed. Elected officials have become 

more directly concerned. Planning has been enhanced. 

Coordination has been forged. Administrative changes 

have occurred. Many of these changes have come at substantial cost, however, including early release of inmates 

and serious tension over intergovernmental control. 

System Improvements 

at the Price of Budget Control 

Overall, perhaps the greatest effect of suits over con- ditions of confinement is the precedent they set. Ru- lings-such as a minimum of 63 square feet of living space 

for a cell holding two people-established standards used 

by most jurisdictions to try to avoid a successful suit. Con- sequently, efforts to avoid suit, as much as court orders, 

have resulted in a significant growth in spending to construct prisons and jails. The proportion of correctional 

budgets consumed by construction grew from 7.7 percent 

in 1977 to 11.2 percent in 1985.42 This increase is all the 

more notable given that operating costs also were escalat- ing rapidly because of the growing number of prisoners. 

The opportunity for program improvements presented 

to correctional officials by court intervention has been 

another avenue of change. Often, a judge has shown great 

sympathy to correctional needs that, routinely, have been 

rejected in legislative and executive budget actions. The 

opportunity this sympathy represents is magnified by the 

fact that, under Section 1983 of the CivilRightsAct of1871, 

suits are usually filed against the DOC director or the 

sheriff. Suits rarely are filed against the state or thegovernor. Even if the correctional head wanted to go only as far 

as general government elected officials had supported in 

the past, such loyalty could come at the expense of the correctional administrator’s own standing in the judge’s eyes. 

It is the administrator who would appear insensitive, uncooperative, or incompetent, perhaps resulting in even 

harsher court orders to “get his attention.” 

Another significant avenue for correctional system 

improvements that has arisen out of court suits is the development of national accreditation programs. Established in the late 1970s, the American Correctional Association’s Commission on Accreditation for Corrections 

became the first major accreditation system dealing exclusively with public agen~ies.4~ Accreditation has become 

the best insurance policy against suit, not only for conditions of confinement, but also for liability in cases of suicide or other injuries. Increasingly, judges are using ACA 

standards as their measure of compliance. 

Although the judge’s sympathy is driven by consideration of what a solid correctional program should be, state 

and local officials have been quick to point out that the 

judge has no responsibility for funding. Unlike executives 

and the legislature, federal judges (who are not elected) 

need to give no consideration to cutting other programs, 

raising taxes, or losing their position. 

Therefore, court suits frequently have resulted in 

general government elected officials realizing that they 

must become involved directly in correctional issues. 

Whereas in the past there simply was no political gain in 

being involved, a court suit can make it a loss not to be. 

Generally, this recognition has not come until the suit is 

well under way and a consent degree between the judge 

and the correctional administrator is entered into. 

One governor, who inherited a state whose entire prison 

system was under court order, had previously served as 

speaker of the House in his state legislature. He descnlbed 

the typical situation around the country in this way: 

There is no romance in corrections. The romance 

is in education and all those kinds of things. [Governors] kept pushing it back and pushing it back 

hoping it would go away. And, if you look at governors, for most of them it did go away, because they 

went out of office before they really had to deal 

with it. The point is that the only continuity that you 

have in state government is in the legi~lature.4~ 

He strongly advocated state legislation requiring that the 

legislative leadership agree to any consent decree before 

it is entered into. 

Legislators and executives who have become involved 

in trying to avoid a court suit or getting out from under a 

court suit often have gained new appreciation for planning 

and coordination, as they have seen their best efforts overwhelmed by increased law enforcement and longer sentences. Within the legislature, they become strong advocates 

of fiscal impact statements for sentencing legislation. 

Some governors have used their position to address the 

lack of system coordination by creating commissions that 

broadly represent all criminal justice interests. 

Population Caps 

Too often, however, establishing an effective planning 

and projection capability or getting the cooperation of all 

criminal justice elements does not produce results fast 

enough. At least in the interim, until new facilities can be 

built or system changes made, a population cap is often imposed on the jail or prison system’s population. Sometimes, local officials have exercised control over how the 

cap is attained; in other instances, a judge has imposed the 

way in which it will be accomplished. 

Population caps are achieved through a variety of measures, but they are basically either a back door to release current inmates or a front-door refusal to admit new ones. The 

degree of overcrowding usually dictates whether the measures are programmatically sound or represent an ultimate 

spilling over of the correctional crisis back into the streets. 

For example, prisoners have been able to earn “good 

time” routinely in many states and localities for years, and 

it is not regarded as early release but simply a tool to 

modify inmate behavior. However, jurisdictions that begin 

using “good time” credits in the midst of an overcrowding 

U.S. Advisory Commission on Intergovernmental Relations 135 
crisis may need to answer more public safety questions. 

While eliminating money bail for petty offenders is a 

front-end means to reduce the number of jail detainees, to 

many people it is a desirable policy change. 

Other policy changes to meet population caps have 

not been justified as easily. First, early release compromises the integrity of sentencing. It has been reported in Los 

Angeles, which released more than 300,000 jail inmates 

early between May 1988 and May 1990, that convicted 

criminals are refusing probation sentences because they 

know they will be free of supervision earlier by being released from The same phenomenon was reported in 

a 1989 Harris County study of 900 felony cases sentenced 

directly to prison: “[Elvidence confirmed a growing sense 

among local criminal justice officials that offenders were 

beginning to view probation as the more heavy sanction 

when compared with the rapid turn around presently being experienced in the Texas prison 

Second, refusal to accept inmates often creates intergovernmental conflicts. A county sheriff’s refusal to accept minor arrestees may mean that the city cannot get 

drunks off the streets; other arrestees may crowd the municipal lockup over the weekend. Municipal law enforcement is frustrated further when waiting lists are established by some sheriffs for those convicted to serve time in 

jail. The Ohio Association of Counties estimated that, in November 1988,4,000 convicted offenders in over one-third of 

the counties were waiting to serve their jail sentences.47 

The county/state conflict over state DOC refusal to 

take state sentenced felons backed up in local jails was discussed in the previous chapter. As noted by the National 

Association of Counties, “on their list of most hated mandates, county officials have always ranked the dumping of 

state prisoners near the top.”48 However, the number of 

state prisoners held by jails did drop during 1990. There 

were nearly 4,100 or 17 percent fewer state prisoners reported backed up in local jails than in the previous year, 

which had seen a record number.49 This relief was due largely to aggressive prison construction programs coming 

on-line in selected states. It is too soon to tell whether 

this trend will continue, or whether new capacity will be 

overtaken by even more aggressive sentencing and law 

enforcement. 

Local relief also has not occurred across the board. 

The impact on some jails is greater than ever from state 

prisoners awaiting transfer; others will see the relief they 

experience in one year disappear the next. The very nature 

of constructing facilities means that new prison beds do 

not come on-line in sustained increments. Often, the degree of intergovernmental tension-indeed, whether or 

not local suits are filed against the state-depends on 

whether the localities trust ongoing state efforts to increase prison capacity, rather than the actual number of 

state inmates backed up in local jails. Texas’ governor recently focused on that trust in indicating that she would 

not sign a $1.6 billion, 28,500-bed, prison reform package 

financed with new taxes, unless the 13 counties pursuing 

lawsuits against the state dropped those suits.5O 

Finally, it is difficult to answer the public safety concerns raised by both early release and refusal to admit new 

Focus 

The Intergovernmental Impact 

of System Imbalance 

By March 1989, the number of state inmates 

backlogged in Georgia’s county jails had reached 

4,000. In response to this crisis, the governor implemented an accelerated release program for 

low-level, nonviolent offenders, along with additional fast- track, emergency construction of 1,600 

beds. The intent was to reduce the backlog to 1,000 

by the end of the year. 

However, increased arrests, prosecution, and 

sentencing continued to outstrip the accelerated release policy. After one year, the number of state inmates backed up in local jails was reduced by only 

600. This minor reduction occurred despite the fact 

that during the year over 3,100 beds were added to 

the state prison system and an average of 1,400 offenders per month were released through the accelerated release program. 

offenders. For example, anyone with bail set at less than 

$5,000 is automatically released in Los Angeles.5I However, a similar federal court order for Philadelphia’s jail produced a strong reaction from the prosecutor, who refused 

to cooperate. An even more dramatic stance was taken by 

a Massachusetts sheriff, whose jail had been under a 

court-ordered population cap since the mid-1980s. When 

the alternative sentencing programs he had initiated and 

selective release still left him with 30 sentenced people on 

the street awaiting admission and no more inmates eligible for early release, he took over a local armory by using a 

17th century provision giving the sheriff broad powers to 

keep the peace. This public demonstration got local government officials to approve construction of a new jail. 

Some states have tried to address public safety concerns and reduce court intervention through emergency 

release legislation. At least 15 states have emergency release programs to relieve prison overcrowding; 13 are provided by statute.52 Most of the early release provisions require a declaration of emergency by the governor, 

followed by across-the-board sentence reductions by 

enough days so that the number of inmates releasedbrings 

the population below the cap. Most release programs exclude at least some categories of violent and sex crimes. 

It is not uncommon to spread the burden for the decision to release inmates. Ohio enacted a law in 1987 that 

requires legislative review of DOC’S request, although 

the ultimate authority to accept or reject the legislature’s 

or DOC’S recommendation resides with the governor.53 

Borrowing on that precedent, the 1990 Ohio Governor’s 

Committee on Prison and Jail Crowding recommended 

authorizing a formal jail population committee in each 

county to establish an emergency admission and release 

plan. According to the committee, “The recommendation 

would allow various actors in the local criminal justice system 

to offer input and share political responsibility.”54 In fact, it is 

particularly appropriate to increase local involvement be136 U.S. Advisory Commission on Intergovernmental Relations 
cause court, prosecutor, and public defender offices will be 

affected by how cases are scheduled. 

Emergency release underscores the fact that population caps simply delay-but do not eliminate-the need 

for permanent policy changes and investments in the 

criminal justice system that support those policies. Programs may start out excluding public safety risks, such as 

violent offenders and sex offenders, but since the remainder are also the target of alternative sanctions, systems 

have run out of eligible inmates and have had no choice 

but to begin releasing increasingly dangerous inmates. 

Future Prospects 

for Conditions of Confinement Suits 

Several movements have the potential to reduce the 

impact of federal court suits regarding conditions of confinement: Supreme Court rulings, administrative exhaus- tion, and changes in judicial philosophy. 

In Wilson v. Seiter (1991), the U.S. Supreme Court 

ruled that prisoners must prove deliberate indifference on 

the of part of prison officials in cruel and unusual punishment cases. This decision shifts the focus from intent to 

the conditions themselves and should make it easier for 

state and local officials to achieve compliance. 

In Rufo v. Sujjfolk (1992), the Supreme Court further 

signaled its desire to reduce federal court involvement by 

overruling the position takenby a lower court that it could 

not modify a consent decree. The 6-to-2 opinion held that 

a court cannot hold local officials to every item agreed to 

under a consent decree simply because it was agreed to. If 

the local government can establish unanticipated changes 

in circumstances-including population growth, extraordinary compliance costs, or public safety concerns raised 

by population caps-then the court must justify, on constitutional grounds, why specific conditions of the original 

consent decree must be enfor~ed.~~ In this case, the issue 

was single-celling of pretrial detainees, on which the Supreme Court did not rule. 

These two decisions also contained significant language regarding another major source of intergovernmental conflict: the executive and legislative obligation to fund 

improvements. In Rufo, Justice Sandra Day O’Connor, 

concurring, observed that: 

State and local governments are responsible for 

providing a wide range of services. Public officials 

often operate within difficult fiscal constraints; 

every dollar spent for one purpose is a dollar that 

cannot be spent for something else. While the 

lack of resources can never excuse a failure to 

obey constitutional requirements, it can provide a 

basis for concluding that continued compliance with 

a decree obligation is no longer “equitable,” if, for 

instance, the obligation turns out to be significantly 

more expensive than anyone anti~ipated.~~ 

In past rulings, financial impediments were disregarded as 

irrelevant to the determination of rights, the violation of 

rights, or the design of relief in the event of violations. For 

example, in Gates v. Collier (1975), the Court specifically 

held that “a shortage of funds is not a justification for continuing to deny citizens their constitutional rights.” 

Significant recognition also was given to local government responsibility in our federal system. In Rufo, the 

Court clearly stipulated that while “no deference is involved” in local or state governments having to establish that 

changed conditions warrant modification of the decree: 

[Olnce a court has determined that a modification is warranted, we think the principles of federalism and simple common sense require the 

court to give significant weight to the views of the 

local government officials who must implement 

any modification. . . . [Tlhe allocation of powers 

within our federal system. . . require that the district court defer to local government administrators, who have the “primary responsibility of elucidating, assessing, and solving” the problems of 

institutional reform. . . . [A] court should surely 

keep the public interest in mind in ruling on a request to mod@ based on a change in conditions 

making it substantially more onerous to abide by 

the decree?’ 

If the court philosophy continues to shift away from 

Gates, a major separation-of-powers issue will be removed. It has been the strongly held view of general government elected officials that raising monies and allocating funds for programs and policies is inherently a 

legislative and executive function. Judicial edicts are seen 

as obstructing the expression of citizen policy preferences 

through their elected representatives. 

Finally, the Rufo v. Suffolk and Wilson v. Seiter opinions both question the concept of “totality of conditions” 

in defining unconstitutionally cruel and unusual punishment. In Wilson, Justice Antonin Scalia observed, “Nothing so amorphous as ‘overall conditions’ can rise to the level of cruel and unusual punishment when no specific 

deprivation of a single human need exists.” The Rufo opinion contains the observation that “state and local officers 

in charge of institutional litigation may agree to do more 

than that which is minimally requked by the Constitution 

to settle a case and avoid further litigation.” Therefore, if 

conditions change, the court must be able to justify any individual requirement as constitutionally mandated. 

Another indication of a shift away from federal court 

involvement is found in the Federal Courts Study Committee recommendations that administrative remedies 

should be exhausted before a court agrees to hear a civil 

rights case filed by a prisoner. The committee emphasized 

that most claims can and should be handled internally. 

The Federal Courts Study Committee noted, however, that only one-quarter of the states have obtained certification from the U.S. attorney general for their prison 

remedy procedures. Most states have not even tried. 

Therefore, the committee recommended that the certification process be substantially modified to emphasize the 

exhaustion of administrative remedies and reduce the 20,OOO 

civil rights cases that are filed by prisoners in federal courts 

e~eryyear.~~ Given that only 1 percent of these cases were of 

the class-action type,” requiring administrative exhaustion 

U.S. Advisory Commission on intergovernmental Relations 137 
could have a significant effect on federal court involvement 

in minor state and local penal management decisions. 

Finally, the experience and philosophy of individual 

judges also have significant bearing on court intervention. 

Massive conditions of confinement suits, of the kind that 

brought states like Texas under federal court supervision, 

appear to be a thing of the past.60 This change is not only 

philosophical, it is a change from micro-managing from 

the bench that also was reflected in the monumental 

school desegregation suits of the past. Changes in judicial 

attitude also reflect changed circumstances. The 1970s 

opened with large-scale prison riots, notably at Attica in 

New York. Judges viewed the facts before them with the 

belief that riots and loss of life would be the ultimate results of unchanged conditions. Today, even though overcrowding is worse than it was at the time of Attica, the degree of upheaval is less-perhaps due in some measure to 

the changes that court orders have helped bring about. In 

fact, a study of more than 180,ooO beds at 694 state prisons 

showed little evidence that crowding levels were directly related to increased homicide rates, assault, or major disorders. Subsequent studies have confirmed these findings.6l 

The nature of the judiciary is such, however, that 

judges always may make an exception to the trends noted. 

This potential is particularly significant when considering 

the increased use of state constitutional provisions as the 

basis of suits. As noted in the discussion in Chapter 2 of the 

congressional debate over reducing habeas corpus petitions to federal courts for review of criminal convictions, if 

federal judges pull back, state constitutional provisions 

encompass at least equal protections. State judges, therefore, can fill the void. 

If current indications of a reduced federal court oversight role do materialize, the principal result will be that 

the intergovernmental debate will be refocused on state 

judicial oversight with less federal intervention. It will become more clearly a separation-of-powers debate rather 

than an intergovernmental issue. However, a shift in federal court philosophy does not necessarily mean that general government elected officials will not face the potential of a judge, albeit a state judge, imposing the same type 

of requirements discussed in this section. There will be 

one significant difference: most state judges are elected 

and, therefore, may have to defend their decisions within 

the public’s priorities. 

SUMMARY 

Construction decisions are complex. Although the officials who will run the prison or jail need to make the final 

design decisions, general government officials have, at 

least, the financial responsibility to exercise significant 

oversight. This requires particular attention to the validity 

of population projections, a disciplined contracting process to avoid costly delays and change orders, justifications 

of security levels to control construction costs, and the effects of design decisions on lifetime operating costs. Significant opportunities exist for intergovernmental efforts to assist jurisdictions in benefiting from the experiences of others. 

The need for additional prison and jail space is the 

end product of the management and philosophy of each 

element of the criminal justice system and of decisions 

made by general government elected officials regarding 

sentencing laws and program alternatives. Ignoring the 

need for space, therefore, compromises the integrity of 

the actions of the police, prosecutor, defender, judge, probation and parole officers, as well as of the penal system 

itself in carrying out its correctional mission. 

However, because prison and jail overcrowding is influenced by so many factors, the capital outlay decision 

can operate as the focal point for comprehensive criminal 

justice coordination and planning. Such a review may have 

evolved among criminal justice officials themselves as 

they responded to the mounting problems. To the degree 

that it has not, as custodians of the public purse, general 

government officials have the opportunity and authority 

to require comprehensive involvement of all criminal justice agencies. 

The least desirable alternative is for a federal judge to 

step in to fill a void created by state or local inaction. 

Thirty-three states and 25 percent of the jurisdictions with 

jails holding more than 100 inmates are under a federal 

court order for overcrowding. Many of these court orders 

have long histories and have created significant intergovernmental tension over accountability for funding and 

management in responding to the public’s priorities. 

Some general government elected officials who have had 

to fund court orders entered against corrections administrators are moving to assure that their approval will be required before any future agreements are entered into. 

Recent U.S. Supreme Court decisions indicate that 

the federal courts will reduce their level of response to 

overcrowding and conditions-of-confinement suits. If, 

consequently, such cases are taken before state court 

judges under state constitutional rules, what has appeared 

to be a federallstate (local) government conflict will become 

more clearly focused as the interbranch conflict it has always 

been. It is also possible that the state judicial response may 

differ from some of the past all-encompassing federal bench 

remedies because, unlike federal judges, state court judges 

are elected or have not been appointed for life. 

NOTE

Bell 

- 

v. Wolfish, 441 U.S. 520,99 S.Ct. 1861 (1979); Rhodes v. 

Chapman, 452 U.S. 337, 101 S.Ct. 2392 (1981). 

US. General Accounting Office (GAO), Federal Prisons: Re- vised Design Standards Could Save Expansion Funds (Washington, DC, March 1991). 

U.S. Department of Justice, National Institute of Justice (NLJ), 

“Construction Bulletin: From Arizona to South Carolina: 

Transfer of a Prison Design Model,” NZJReports, Washington, 

DC, August 1990. 

4National Center for State Courts, Night Court: Is It a Solution 

to Jail Overcrowding? Hennepin County, Minnesota Final Report 

(Williamsburg, Virginia, January 1990). 

Correctional Services Group, Forecast of Detention Capacity 

Needs forHennepin County (Minneapolis, December 19,1989). 

138 U.S. Advisory Commission on Intergovernmental Relations 
6Martha A. Fabricius and Steven D. Gold, State Aid to Local 

Goveniments for Correctional Programs (Denver: National 

Conference of State Legislatures, 1989). 

’Ohio Governor’s Committee on Prison and Jail Crowding, Fi- nal Report, by David Diroll, Candace Peters, and Steven-Van 

Dine (Columbus: Governor’s Office of Criminal Justice Ser- vices, 1990). 

’ “Construction Bulletin: From Arizona to South Carolina: 

Transfer of a Prison Design Model. ” 

Office of the Attorney General, “Opening Remarks as Delivered by Dick Thornburgh, Attorney General of the United 

States, at the National Drug Conference,” Washington, DC, 

May 15, 1990. 

lo George Camp and Camille Camp, The Corrections Yearbook: 

Adult Prisonsand Jails (South Salem, New York Criminal Justice Institute, 1990). 

l1 “Construction Bulletin: From Arizona to South Carolina: 

Transfer of a Prison Design Model.” 

12Fabricius and Gold, StateAid to Local Govemrnents for Corrections Programs. 

l3 National Council on Crime and Delinquency, 85 Years of Jus- tice Refonit (San Francisco, 1991). 

l4 “Construction Bulletin: Jail Construction in California” 

l5 “Construction Bulletin: From Arizona to South Carolina: 

l6 “Restoring Our Power to Punish Oregon’s Fight against 

l7 (California) Blue Ribbon Commission on Inmate Population 

‘8National Prison Project, Status Report: The Courtsand the Prisl9 “Jail Inmates, 1990,” BJS Bulletin, June 1991. 

2o Daniel L. Skoler, Organizing the Noti-System (Lexington, Mas21 Bell v. Wolfish, p. 520, 562. 

22 Justice Antonin Scalia, in Ruth Marcus, “Court Raises Burden 

23 National Prison Project, Status Report: The Courts and the Pris24 “Judge and Prosecutor Clash over Philadelphia Jail Plan,” 

Criminal Justice Newsletter 22 (March 1991): 2. 

”(Tennessee) Select Oversight Committee on Corrections, 

State and Local Corrections: A Coordinated Stmtegv for Tennes- see (Nashville, 1989). 

Transfer of a Prison Design Model.” 

Crime,” GSG Issue Buckgrounder; December 1989. 

Management, Final Report (Sacramento, January 1990). 

ons (Washington, DC, January 1, 1990). 

sachusetts: D.C. Heath, Lexington Books, 1977). 

in Prison Lawsuits,” Waliitzgton Post, June 17, 1991. 

Om. 

26 “Prisoners in 1990,” BJS Bulletin, May 1991. 

27Erika S. Fairchild, “The Scope and Study of Prison Litigation 

Issues,” Justice System Jountal 9 (Summer 1984): 324-341. 

28 Linda Harriman and Jeffrey D. Straussman, “DO Judges De- termine Budget Decisions? Federal Court Decisions in Prison 

Reform and State Spending?” Public Adniinistration Review 43 

(Fall 1983): 343. 

29 William Kelley, “The Cost of Punishment,” Geotgiu County 

Goveninierit 42 (August 1990): 39-40. 

30 Tinsley E. Yarbrough, “Political World of Federal Judges as 

31 Yarbrough, “Political World of Federal Judges as Managers.” 

32National Prison Project, Status Report: The Courts and the Prisons. 

33 Roy H. Reynolds, “The Role of Special Masters in Federal Ju- dicial Supervision of State Prisons: The Need for Limitations,” 

American Criminal Law Review 26 (1988): 491,511. 

Managers,” Public Adniinistration Review 45 (1985): 663. 

34Cruz v. Beto, 405 U.S. 319,321 (1972). 

35 Wolff v. McDonnell, 418 US. 539, 566 (1974). 

36Bell v. Wolfish, 441 U.S. 520,562 (1979). 

37Rhode~ v. Chapman, 452 U.S. 337,349 11.14, (1981). 

38 Hewitt v. Helms, 459 U.S. 460, 467 (1983). 

39 Ruiz v. Estelle, 659 E2d 1126 (5th cir., 1982). 

40 Barbara W Jones, ‘Achieving Compliance with Conditions, 

Court Orders and/or Consent Decrees,” Proceedings of the 

One Hundred and Seventeenth Annual Congress of Correction of the American Correctional Association, 1988, pp. 

45-48. 

41 Rufo v. Inmates of the Suffolk County Jail, 112 S. Ct. 748. 

42 “Construction Bulletin: From Arizona to South Carolina: 

43 Skoler, Organizing the Non-System, p. 45. 

44 Confidential interview, 1990. 

45 David Freed, “Volume of Crime Allows Many Suspects to Go 

Free,” Los Angeles Times, December 19, 1990. 

46 Harris County Community Justice Council, Hami County 

Coniniunity Justice Plan: Fiscal Ear 1991 (Houston, 1990), p. 

15. 

47 Ohio Governor’s Committee on Prison and Jail Crowding, Final Report. 

48 Gary Enos, “Counties Escape Prisoner Dilemma,” City & 

State, June 3-16, 1991. 

49 “Jail Inmates, 1990.” 

Enos, “Counties Escape Prisoner Dilemma.” 

51 David Freed, “Plea Bargaining Becomes the Currency of the 

Courts,” Los Angeles Times, December 20, 1990. 

52 Camp and Camp, The Corrections Yearbook. 

53 Ohio Governor’s Committee on Prison and Jail Crowding, Final Report. 

54 Ibid., p. 33. 

55 Rufo v. Suffolk. 

Ibid. 

57 Ibid. 

Federal Courts Study Committee, Report (Philadelphia, 1990). 

59 Camp and Camp, The Corrections Yearbook. 

60Charlotte Low Allen, “The Success of Authority in Prison 

Management,” Insight 5 (July 1989): 9-19. 

61 John J. DiIulio, Jr., “Punishing Smarter: Penal Reforms for the 

1990s,” The Brookitigs Review 7 (Summer 1989): 3-12. 

Transfer of a Prison Design Model.” 

US. Advisory Commission on Intergovernmental Relations 139 
140 U.S. Advisory Commission on Intergovernmental Relations 
6 -REPRESENTING AND PROTECTING 

THE PUBLIC’S INTEREST 

E any general government elected officials are involved only hldirectly in setting criminal penalties, alternative sanctions, or building new space. However, when a 

constituent gets involved with the criminal justice system, 

an elected official’s level of involvement may intensify 

many times over. 

This chapter discusses three elements of the criminal 

justice system: policing, victim/witness programs, and siting 

correctional facilities and programs in the community. 

The common thread among them is that they are 

points of direct contact between the criminal justice system and law-abiding citizens. As representatives of these 

citizens, general government elected officials may find 

that they have a key role to play in assuring that the contact furthers the public’s perception, at least, of justice. 

OVERSIGHT OF POLICE 

AND SHERIFFS’ DEPARTMENTS 

There are more than 15,000 police departments and 

sheriff’s offices with policing responsibility in the United 

States. This is five times the number of prosecutor’s offices, criminal courts, or jails, and symbolizes an intent to 

have policing in close contact with citizens to support community values. Although some of these departments may 

be so small as to warrant significant intergovernmental 

cooperative efforts--if not merger-these concerns are 

budgetary and are taken up in the next chapter. 

This section considers the primary programmatic con- cern: how general government policies can ensure that police and sheriffs’ departments, no matter what their size, 

are adequately focused on the goal of increasing public 

safety. Two broad areas are crucial to achieving this goal: 

personnel and the philosophy of community relations. 

Personnel 

It has been common to increase the number of law enforcement officers without commensurately increasing 

the other elements of the criminal justice system needed 

to handle more arrests. This stems from the intergovernmental split of funding responsibilities and from public 

pressure. It also can lead to inefficiencies, lack of trust, 

and intergovernmental discord. 

The Drive to Hire More Officers 

Over half the funds spent on police protection come 

from municipal budgets. The remaining 45 percent is split 

almost equally between county, state, and federal budgets. Of equal significance is the fact that, whereas county, 

state, and federal budgets must absorb fairly equal impacts 

from the need to support court-related and correctional 

functions as well as police, cities have minor involvement 

in meeting total criminal justice needs.’Consequently, the 

majority of municipal government decisions to add more 

police are made in isolation, without considering the impact on other criminal justice needs and whether increased police efforts will be supported adequately. 

In addition, all units of government are affected by 

the tendency to believe that hiring more police or sheriff’s 

deputies is the answer to fighting crime. Voters can see 

uniformed officers, who symbolize the criminal justice system’s immediate response. Voters also have a clear idea of 

what police are supposed to do. In part because people 

have a much greater understanding of what police do, they 

also have much more confidence in the police than in the 

courts to protect them from criminals. 

This reliance on the police to fight crime is as strong 

within county, state, and federal constituencies as it is with 

the voting constituencies of cities. For example, the Congress included a major initiative for college scholarships in 

the 1991 federal anticrime legislation. However, these 

scholarships can be repaid by employment only in policing, 

even though the personnel needs are at least as great in 

corrections, probation and parole supervision, and court 

support functions. 

Assessing the Consequences of Hiring Decisions 

The first type of inefficiency created by insular decisions to hire more police is lack of consequences. There 

may be more arrests, but there is no commensurate inU.S. Advisory Commission on Intergovernmental Relations 141 
crease in prosecutions or convictions. In fact, what may increase is the number of criminals being freed to return to 

the streets. The resources spent on hiring more police are 

not only wasted but the lack of results feeds the public’s 

lack of trust of the entire criminal justice system. Further, 

the lack of consequences may breed future costs because it 

reduces the deterrent effect that the threat of arrest 

should have on criminals. Finally, lack of carry-through 

can undercut police morale, decreasing performance or 

increasing police suspicion and isolation from the rest of 

the criminal justice system. 

As an alternative, before the decision is made to add 

police positions, elected officials should require an analysis of whether current police efforts are as fruitful as they 

might be. Nationwide, less than half of all felony arrests 

result in convictions.2 Some would interpret this statistic 

as indicating that half of all policing efforts to stop criminals are undercut by lack of consequences in the criminal 

justice system. Alternatively, general government elected 

officials need to assure themselves that police/sheriff 

practices are not contributing to the lack of efficacy. In 

practice, police officers and sheriff’s deputies have several 

reasons for making arrests: 

They may make arrests to quiet a situation, to assert a presence, to prevent a crime, to bring in an 

informant, to build a record of charges against 

certain suspects that may be used later to prosecute repeat arrestees, etc. Further, “sweeping the 

streets” may be a high priority in communities 

that have high crime rates. . . . [Plolice in affluent 

neighborhoods may also arrest . . . suspicious outsiders’ to maintain community confidence. In 

such circumstances, the departments may have 

no intention of formally submitting the arrests to 

the prosecutor for filing. . . . In the presence of 

certain kinds of community pressure, a rejection 

from the prosecutor can be valuable: a department that is under heavy pressure from victims to 

“do something” may submit whatever case it has 

to show that the department has done its best, 

and it is the prosecutor who will not pr~ceed.~ 

These motivations, in addition to the quality of police work, 

directly affect the response of the criminal justice system. 

The size of Los Angeles County provides an opportunity for a comparative analysis of the effect of police activities on the carry-through of the criminal justice system. 

Arrests made by 25 different municipal police forces in the 

county resulted in conviction rates twice as high for some 

as for others, even though all work with the same district 

attorney’s office. None of the purely demographic differences between communities (e.g., age, race, poverty level) 

appeared related to case attrition. The only statistically 

significant difference was the ratio of police department 

funding to arrests. Some departments spent $1,500 per arrest while others spent $5,500. Jurisdictions that spent 

more per arrest obtained more convictions. The study 

noted that resource-rich departments were able to hire 

evidence technicians or use computer-aided dispatch systems to place officers on the crime scene at the earliest 

possible time.4 The number of officers was not significant. 

What also was significant was that, in a close look at 

six municipal departments within Los Angeles County, 

“neither the detectives nor their supervisors knew what 

proportion of their cases were accepted or rejected by the 

prosecutor. No supervisor or chief of detectives evaluated 

his officers in terms of the percentage of cases presented 

that led to filings or convictions,”s This picture is common 

nationwide. Police officers and sheriff’s deputies are seldom rated on conviction rates-which would be an indication that a major reason for their work is, ultimately, a 

successful outcome for the criminal justice system. On the 

contrary, they frequently are rated simply on the number 

of arrests they make. 

Based on this comparative study, elected officials who 

refocus accountability on convictions rather than just arrests may find that support services rather than more uniformed officers represent a more productive use of funds. 

They also may be able to use a focus on convictions to 

break down traditional barriers by making cooperative 

training between the police and prosecutor a budget mandate. Examples of recent prosecutor/police cooperation 

include Minneapolis; Garden Grove (California); Indianapolis; Newport News (Virginia); and Nashville.6 

Reducing Isolation 

However, this or any other refocusing of policing activities will have to overcome several hurdles. First, local officials report that, even though the police department is an 

administrative agency in most localities (except for many 

of the less populous counties where the sheriff’s department directs police functions), their influence over thepolice department is not significantly greater than their influence over the independently elected prosecutor. 

Second, achieving policy change in police departments 

has been difficult for two institutional reasons. On the generai government side, few city managers have police department experience. An International City Management Association survey of 7,500 city managers in the early 1980s 

revealed that fewer than 20 came out of an emergency services ba~kground.~ On the law enforcement side, transfers 

from one police department or sheriffs’ office to another 

are rare. Traditionally, entire careers are spent working 

with the same set of assumptions about the role of each 

criminal justice agency and the personal cooperation to be 

expected. As a consequence of these career paths, lack of 

experience by policymakers in knowing the right questions 

to ask is compounded by the lack of experience by operating personnel in working with different approaches. 

While not integrating police departments into the 

criminal justice system may result in a waste of tax dollars, 

a deeper problem, known as the “noble cause,” has been 

described as follows: 

We’re the good guys, and the US. Constitution 

doesn’t always apply to us. We’re right, so anything 

we do is right. Sometimes, we may need to mete out 

punishment because the criminal justice system 

won’t. Furthermore, the public will approve.* 

142 U.S. Advisory Commission on Intergovernmental Relations 
Policing is dangerous; its hours are irregular; and officers may be exposed to traumatic experiences. These factors lead to a strong esprit de corps. In addition, it hasbeen 

noted that J. Edgar Hoover’s legacy remains significant. 

“The model was if you had highly incorruptible young 

men, control their discretion, declare war on crime, train 

your men and keep them incorruptible, you will win. So 

what happens when you train soldiers in a war they cannot 

win? Some of them get very angry, very frustrated.’* 

Adding large numbers of officers at one time can increase the potential for such personnel problems. Recruitment and training typically take more than a year for the 

average number of officers added to any given department 

annually. Local departments serving populations of 

100,000 or more require an average of over 1,000 hours of 

pre-service training.’O If the routine is compromised to get 

more uniformed officers on the street rapidly, there can 

be negative ramifications, including: 

rn Having to hire from an inadequate applicant 

Not doing adequate aptitude and background checks; and 

Abbreviating training or providing it with inexperienced personnel. 

pool; 

rn 

a 

Community Policing 

The spiral of isolation, frustration, and distrust have 

had serious ramifications on the effectiveness of police, 

especially in high-crime communities. In an attempt to 

deal with these problems, by the fall of 1990, more than 

250 jurisdictions were considering community policing.” 

In addition, two particularly graphic incidents in the summer of 1991 brought national attention to the issue of police/ community relations: in Los Angeles, a home video 

film showed brutality involving a number of officers at the 

scene of a traffic arrest, while in Milwaukee, official telephone recordings demonstrated unresponsiveness to citizen concerns about the need to help a boy who became the 

victim of a mass murderer. 

Community policing is a term being used to cover programs that attempt to involve the community in policing 

activities by “working with the good guys, and not just 

against the bad guys.”12 It includes police officers and 

sheriff’s deputies getting out of their cars and walking 

beats in the community, citizen crime-watch activities, targeting locations associated with high crime, and demonstrating to the community that government will respond to 

their need to regain control of their neighborhood. 

At its core, community policing is not new; it is merely 

a new umbrella for concepts that are integral to most 

small-town police and sheriff’s departments and have 

been advocated for large departments for years. The 1967 

report by the President’s Commission on Law Enforcement and Administration of Justice recommended decentralizing patrol and investigative duties for a more efficient field response. During the 1970s, this approach was 

called Team P01icing.I~ However, as technology turned 

squad cars into mobile climate-controlled offices, efficiency rather than field contact became the standard. The advent of 911 systems put further emphasis on response 

time, often at the expense of preventive policing. 

Besides putting more officers on the street, the current formula for community policing goes beyond traditional 

police functions to bring officers back in contact with the 

public. Many programs emphasize intergovernmental cooperation. Police officers and sheriff’s deputies are cast as community ombudsmen to get general government agencies involved in addressing a variety of community needs. 

Program Initiatives 

The preceding descriptions of community policing 

contain two elements of action: government action and 

citizen action. Because of the authority of the police and 

the demoralization of many high-crime communities, typically, the community policing model has to start with government initiating change. The following subsections provide examples of four major areas of reform: increasing 

the police presence, physically reclaiming neighborhoods, 

involving citizens, and preventive outreach. 

Police Presence 

New York City introduced “Park, Walk, and Talk” in 

August 1990, which emphasizes identifying problems before they become crises, rather than spending over 90percent of patrol time in a radio car responding to 911 calls. 

Extra personnel was provided in part by “Operation All 

Out,” which reassigns officers from administrative positions to uniformed patrol at least one day a week.I4 In a 

number of cities, housing authorities and, recently, private 

management companies are providing free room and 

board to have a police officer as a resident. In Orlando, 

Florida, the housing authority provides the space for a police substation and pays for all ~ti1ities.l~ 

Reclamation 

Fort Lauderdale’s “Code Wars” uses a team that includes a building-and-fire inspector and a narcotics officer 

to give the community a sense that it can reclaim its neighborhood. “When areas eliminate those qualities that are 

conducive to the narcotics environment (i.e., poorly lit, dilapidated, abandoned buildings), the supply as well as the 

demand for drugs is inhibited. Drug users must now travel 

farther and increase their personal risk in order to obtain 

narcotics. This increased time and risk effectively reduces 

demand among first-time users and recovering narcotic 

abusers.”The program has reduced the amount of law enforcement service calls by 23.5 percent since 1987.16 

The Minneapolis Community and Resource Exchange (CARE) uses automated information sharing between city police, inspections officials, and the county welfare agency to deny housing payments on behalf of public 

assistance recipients to landlords in violation of city housing standards.” The benefits of such increased communication and coordination among city and county agencies 

and the community were heralded by CARE participants: 

The government participants are impressed by 

their ability to work together across agency lines. 

U.S. Advisory Cornmission on Intergovernmental Relations 143 
People living in the neighborhoods served by 

CARE believe it has given them a sense of power, 

hope and control over their lives. CARE has also 

improved their view of government.ls 

Involving Citizens 

Charleston, South Carolina’s, police chief emphasizes the need to use the community to help enforce the 

law and take away the stigma of police authority acting 

alone. He notes, for example, that the traditional approach in stopping people who fit a description winds up 

alienating dozens of people every day. “We now tell people why we stopped them and more importantly we ask them 

for their assistance since they are not the guy we’re looking 

f0r.”l9 Repairing damage done by police searching for evidence and looking to involve specific bystanders rather than 

aggressively clearing a crime scene are other means to develop respect between the community and police.20 

Organized citizen crime-watch activities also are crucial. The U.S. Department of Housing and Urban Development’s Drug Elimination Program will provide $8.2 million in FY 1991 and $98 million in FY 1992 to assist in the 

elimination of drug-related crime in public housing projects. These grants include the support of citizen groups 

who will escort other tenants, patrol the development, 

and deter crime.*’ 

In addition, a central element of a fully developed community policing program is grassroots determination of what 

needs to be done in the community and citizen participation 

in carrying it out. For example, Houston’s Chief of Police reports meeting with Hispanic and black ministers once a 

month and involving them in community meetings because 

of their influence and prestige in the community. Their involvement led to bringing in school representatives, social 

service agencies, the district attorney, and city council members. In other communities, neighborhood meetings with police have turned the focus from responding to individual incidents to determining why, for example, a particular 

convenience store is the site of hundreds of calls a year. 

Community policing empowers the officers on the beat to 

take the initiative in responding appropriately to such a convenience store situation, rather than having case priorities 

controlled from a central administration. 

Preventive Outreach 

Community policing also can involve positive outreach, such as the DARE (Drug Abuse Resistance Education) program started in Los Angeles in the mid-1980s and 

now used throughout the country. DARE uses full-time 

veteran police officers as instructors to reach children in 

their last year of elementary school. 

In 1986, Prince George’s County, Maryland, started the 

first Midnight Basketball League for 17- to 21-year-olds, an 

idea that has been picked up by a number of cities. At least 

two police officers must be on hand at all times, and the program also involves employment and education counseling. 

In New York City, neighborhood “play streets” are set 

up each summer by blocking off traffic and using DARE 

officers that are not busy during school vacations. The program was funded by New York City’s Drug Prosecutor, using drug forfeiture funds.22 Lengthening the school year, 

or making public education a year-round program, as 

some are proposing for international competitiveness reasons, might have similar results. 

Citizen Response 

The more crime has demoralized a neighborhood, the 

more efforts may have to be made by the police before residents will respond. In Dade County, Florida, as part of 

the TNT program (Tactical Narcotics Team), community 

relations officers go door to door to explain the program. 

TNT, like other programs, also has found that it is crucial 

to carry out visible clean-up efforts to demonstrate that 

public agencies will pay attention to the community before 

the police can expect much response from the community 

in helping itself. 

The goal of this and other programs is to empower citizens to reclaim their communities. It is not physicallypossible for police personnel to be omnipresent, but they can 

back up a neighborhood willing to observe and report 

crime. During the 1980s, suburban Neighborhood Watch 

programs, established with police encouragement and 

guidance, became an effective crime prevention tool. 

Many high-crime neighborhoods did not have the basis for 

similar cooperation; therefore, groups such as the Guardian Angels were formed. Initial police reaction to these 

groups often reflected the degree of estrangement between the police and the community. The more estrangement, the more harshly the group organizers will criticize 

the police and resist police suggestions; the more estrangement, the more the police regard the vigilantes as 

just stirring up trouble. In contrast, community policing 

focuses on looking at any citizen activity as potential leverage for involving the community. 

General Government Officials’ Involvement 

Elected officials are in a position to play a key role in 

encouraging community involvement. They have budget leverage, the authority to hold government agencies accountable, and a stake in their constituents believing that government is responsive. It is in their interest to serve as mediators 

and initiators to bring police officers, responsible government agencies, property owners, and residents together. 

The involvement of a general government elected official may start out of a necessity to establish community 

trust, including the need to assure that charges of police 

brutality are fully, impartially, and openly addressed. This focus on citizen needs rests on the responslbity of elected officials to assure that government agencies are responsive. 

Elected officials also have the responsibility to assure 

that government agencies are effective. Often, this means 

that elected officials must challenge agencies to define 

their mission more broadly. Community policing initia- tives have encompassed this concept by involving building 

inspectors, schools, and welfare agencies. However, the I 

examples of interagency cooperation cited thus far are targeted at whatever it takes to get criminals out of a neigh- borhood. There has been little interest in marshaling com- munity resources to help supervise and positively 

reintegrate offenders on pretrial release, probation, orparole back into their communities. 

144 U.S. Advisory Commission on Intergovernmental Relations 
General government officials may have to take the 

lead in addressing these latter needs of the criminal justice 

system as a whole, by encouraging active police involvement in supervising juvenile offenders, probationers, parolees, or pretrial releasees. Because traditional funding 

patterns often isolate the police activities of the nation’s 

core cities from the county and state-supported court and 

correctional systems, bridging this gulf has a significant intergovernmental focus. 

Finally, elected officials have a leadership responsi- bility. This usually requires effort to help the public understand where solutions must be found, rather than just following public demands. Police may realize that they 

cannot protect a community without active community involvement, but they often need the leadership of an 

elected official to help convey the message to the citizenry 

that “government can’t do it all.” As recently stated by the 

chairman of ACIR: 

We need to think of public services as being, not 

government services, but genuinely public services, in which citizen responsibility goes beyond 

taxpaying. The cash-for-services nexus that often 

defines a citizen’s relationship to his or her municipality needs to be replaced by a partnershipin-service 

Summary 

Citizen trust, government responsiveness, criminal 

justice effectiveness, cost savings, and community involve- ment are all goals that elected officials can help forward by 

looking beyond simply hiring more police or sheriff’s 

deputies. In many systems, police work will be better supported when general government officials exercise oversight by asking questions about reasonable hiring goals, 

training, investigative support, conviction rates, and how 

police and sheriff’s deputies can better operate as govern- ment’s link with the community. 

Community policing is a new term for efforts, especially in large departments, to return to the concept of po- lice and sheriff’s deputies being in contact with the public 

and developing community support in preventing crime. 

Fully developed community policing also attempts to link 

general government services-even when they are admin- istered by different governmental units-to help a community reclaim control of its neighborhood and, thereby, 

build confidence that government will respond. Among 

citizens in the most heavily crime-impacted communities, 

these government initiatives often must be undertaken 

before the citizens will respond by organizing their own citizen-watch activities, which have been so successful in 

cohesive neighborhoods. 

WCTIM AND WITNESS PROGRAMS 

Many elected officials naturally empathize with victims when presented with criminal justice issues. For others, it takes an individual constituent to bring home the 

reality of the difficulties that victims have in coping with 

crime and the complexities of the criminal justice system. 

Organized efforts to help victims are a relatively recent 

phenomenon, pushed in large part by the women’s movement, anti-drunk driving advocates, and the increasing 

number of elderly citizens. The newness of victim/witness 

programs and services creates a special challenge for general government officials and criminal justice officials to 

work together to assure that they are employed effectively. 

Vulnerability to crime has different aspects, as Table 

6-1 (page 146) demonstrates. The poor are the most vulnerable to crimes of violence, and that vulnerability increases for those living in central cities. Higher income individuals are more vulnerable to theft; in addition, the 

higher their income, the more vulnerable blacks are to 

household larceny, although higher income whites have a 

reduced incidence. Contrary to the perception of most elderly persons, vulnerability to violent crime, as well as 

theft and household larceny, decreases significantly with 

age. Finally, it should be noted that all of these statistics 

deal only with reported crime. Domesticviolence and rape 

are significantly underreported. 

No single approach is appropriate for all these types 

of victims; additionally, many emotions exacerbate differences and lead to demands for individual programs. This 

makes it particularly challenging for general government 

officials to insist on integrated services to avoid unnecessary duplication. At the same time, general government 

elected officials may find it particularly challenging in 

some local criminal justice systems to establish an orientation in all its components that adequately considers individual victim needs. 

Crime Prevention and Detection 

Victim/witness services start with prevention and detection programs that are part of the community policing 

concept. If police resources are used to determine what 

makes communities and the people who live in them vulnerable to crime, crime can be reduced. The reduction is 

not only short term, an immediate result of nonresident 

efforts that produce better lighting, new locks, a visible police presence, and targeted arrests, but also long term, resulting from the residents instituting patrols and escort 

services and making themselves, in fact, less vulnerable. 

Support of such initiatives benefits not only individuals but also general government interests. A community 

that feels victimized will be neither economically healthy 

nor able to build on citizen involvement with its schools, 

programs for the elderly, or other government services. 

The underclass problem, contrary to the leading 

academic and journalistic understandings, is 

mainly a crime problem. . . . The essential difference between us and the overwhelmingly decent 

and law-abiding people who reside in these urban 

neighborhoods is that we can avoid what they cannot escape. . . . To the extent that culture-of-poverty 

notions apply at all, they apply only to the latterthe “underside of the underclass.” In failing to 

make this distinction, culture-of-poverty theorists 

blame the victims along with the victimizers. . . . 

US. Advisory Commission on Intergovernmental Relations 145 
Table 6-1 

Selected Victimization Rates, by Personal or Household Characteristics and Race of Victim, 1979-1986 

Personal or Household 

Characteristics 

Total Household 

Violent Crime Theft Larcenv 

White Black White Black White Black 

Sex 

Male 

Female 

Age 12-15 

16-19 

20-24 

25-34 

35-49 

50-64 

64 or older 

Marital Status 

Never Married 

Divorced or Separated 

Widowed 

Married 

Location of Residence 

Metropolitan Area 

Central City 

Suburb 

Metropolitan Area 

Less than $7,500 

$15,000-$24,999 

$50,000 or More 

Family Income 

$7,500-$14,999 

$25,000-$49,999 

44.8 

24.9 

57.8 

73.3 

73.2 

44.3 

23.0 

10.5 

5.3 

63.2 

72.6 

8.6 

18.6 

46.7 

33.9 

26.1 

53.1 

38.8 

31.9 

29.5 

26.0 

54.8 

35.6 

63.1 

71.6 

72.6 

52.8 

29.4 

18.2 

10.8 

65.0 

54.2 

14.5 

23.2 

55.0 

36.3 

25.1 

56.4 

43.6 

36.2 

32.7 

27.4 

86.1 

75.3 

132.4 

135.7 

131.2 

93.5 

72.7 

46.5 

21.6 

129.3 

113.5 

29.5 

58.6 

99.1 

85.3 

60.1 

76.4 

75.2 

80.4 

87.3 

102.6 

86.6 

69.1 

106.0 

89.7 

111.5 

94.4 

66.7 

43.2 

23.8 

92.8 

80.4 

30.2 

67.7 

83.5 

89.4 

47.4 

63.6 

78.9 

85.5 

100.9 

115.2 

116.1 

107.8 

242.6 

196.0 

146.7 

129.7 

89.4 

50.6 

135.0 

148.3 

57.6 

113.5 

142.3 

112.4 

92.1 

115.0 

122.0 

121.9 

111.2 

104.8 

135.1 

229.8 

199.4 

172.7 

151.0 

134.6 

112.6 

72.3 

126.3 

132.6 

86.5 

140.6 

139.8 

129.9 

90.9 

109.7 

138.9 

141.8 

152.5 

165.2 

Source: U.S. Department of Justice, Bureau of Justice Statistics, “Black Victims,” BJS Special Report: Executive Surnrnruy (Washington, 

DC, April 1990), p. 10, Table 6. 

This victimization by criminals takes several 

forms. There is direct victimion-being mugged, 

raped, or murdered; being threatened and extorted, 

living in fear about whether you can send your children to school or let them go out and play without 

their being bothered by dope dealers, pressured 

by gang members, or even struck by a stray bullet. 

And there is indixct victimkalion -dampened 

neighborhood economic development, loss of a sizable fraction of the neighborhood’s male population to prison or jail, the undue influence on young 

people exercised by criminal “role models” like the 

cash-rich drug lords who rule the streets, and so on. 

Badly stated, my hypothesis is that this victimization 

causes and perpetuates the other ills of our underclass neighborhood^.^^ 

The high correlation between the race of the victim 

and of the criminal is another reflection of the community 

focus of most crime. Most criminals are opportunists. Isolated elderly, immobile poor, or suburban neighborhoods 

essentially abandoned during working hours all present 

easy marks. General government officials need to examine programs and proposals to assure that they are the 

most effective means to counter the specific vulnerability 

of the target group purportedly served by the program. For 

example, individual social services, such as transportation 

for the elderly, may do more to reduce individual vulnerability than increased policing. 

This discussion of policies to prevent victimization 

would be incomplete without noting that black-on-black 

homicide is the leading cause of death for black males 

aged 15-34.25 The war on drugs has brought new concern 

over this fact because drug dealers increasingly have made 

high-powered automatic weapons available to juveniles. 

The presence of these weapons in the community, which 

are more apt to kill than simply wound, suggests that the 

recent increase in homicides will continue. However, the 

fact that homicide is the leading cause of death for young 

black males is not a recent phenomenon. It has persisted 

since about 1932.26 The long-standing nature of the problem indicates that government and community efforts that 

146 U.S. Advisory Commission on Intergovernmental Relations 
focus only on the drug trade will have little success in 

stemming the number of black homicide victims. 

Domestic violence is another area of growing concern to 

elected officials. Among all female murder victims in 1989, 

28 percent were killed by husbands or boyfriends, while 5 

percent of male victims were killed by wives or girlfriend^.^^ 

Initiatives to reduce this murder rate have focused on giving 

the victim options and support to escape abuse before it results in homicide. Traditionally, police do not like to respond 

to domesticviolence calls because their safety may be threatened by the high level of emotion and also by the fact that 

their efforts frequently are wasted because charges are 

dropped after an arrest is made. To empower police, various 

state laws and enforcement initiatives have emphasized the 

police power to arrest an abuser without the victim pressing 

charges. Community policing programs also have trained officers to refer citizens to social service agencies when they 

detect domestic problems. In addition, some states have enacted laws to deny bail in order to allow the victim time to 

realize options without the presence of the abuser. These 

options can include publicly subsidized alternative living arrangements, such as the House of Ruth. 

Prevention and detection must deal with aggressive 

group advocacy and the fear and isolation of individuals. 

Some communities have taken the initiative to protect themselves against crime, from suburban Neighborhood Watch 

programs to Guardian Angel type groups in inner cities. 

However, where there is little sense of community, individuals need significant reassurance that the system wd1 respond 

before thy will come forward. Both of these aspects also are 

present in individual crimes, such as rape, child abuse, and 

domestic violence. Women’s groups have taken a strong advocacy role, but most victims need significant reassurance 

before they will turn to the criminal justice system for help. 

Elected officials need to be particularly concerned that the 

criminal justice system is prepared to deal with the special 

problems of victims who perceive that they lack status, either 

as individuals or because of where they live. 

Making the Criminal Justice System Accessible 

Many victims and witnesses who come in contact with 

the criminal justice system become bewildered, if not intimidated or frustrated. In the last 15 years, programs have 

been developed to reduce such negative experiences. 

These programs come under the umbrella of a victim bill 

of rights, which hasbeen adopted by 45 states and addresses such issues as: 

Notification of case status and scheduling; 

Information about available financial aid and 

social services; 

Translating legal terms and court jargon into 

lay terms; 

B Protection from harassment and intimidation; 

Separate waiting areas; and 

Speedy return of property held as evidence. 

In addition, most of the victim/witness programs receive some degree of funding from the government. The 

federal government provides matching block grants to 

states under the Ectim of Crime Act (VOCA). These funds 

come from federal court fees and fines. The level of funding 

was capped at $125 million in F’Y 1990 and $192 million in 

FY 1991J8 The funds are designated to support general victim/witness court services, as well as special support programs leading to more effective prosecution of such crimes 

as child abuse. Significant record keeping is required to receive VOCA funds, targeted at determining the populations 

served relative to the incidence of various types of crime. 

The fact that a variety of programs exists reflects the independence of the criminal justice elements, as well as the 

isolation felt by some classes of victims. Some prosecutors 

have welcomed victim/witness programs operating out of 

their offices because it gives them greater control over cases. 

Others find such direct contact disruptive. Some police and 

sheriff departments are sensitive to the fact that police procedures may increase victim trauma, while others believe 

that dispassionate fact finding is their first responsibility. 

Public defenders’ offices, where they exist, are an appropriate focus for defense witnesses but not victims. 

On the other hand, many advocacy groups are reluctant to accept even the best intentions of those within the 

system, or even those working with another type of victim. 

Each may believe that special training and sensitivity is 

needed to deal with victims of domestic violence, child 

abuse, rape, or drunk driving. Those who work with the elderly maintain that their physical needs and mental state 

frequently require unique support and consideration. Finally, racial minorities may perceive other barriers, such 

as those reported by the Ohio Governor’s Commission on 

Socially Disadvantaged Black Males: 

African Americans also under-utilize victim assistance programs, possibly as a consequence of 

the under-representation of African Americans 

on police forces. Referrals to victim assistance 

programs are most frequently given by law enforcement officers. . . . The most important [reason for under-utilization] seems to be distrust of 

the system. This distrust exists because of perceived police brutality, which, especially in the 

past, has acted as a barrier to many African 

Americans becoming active participants in victim 

assistance programs and services.29 

General government officials may become involved in 

dealing with the desire of victim assistance groups for 

uniquely focused services, at least in resolving disputes for 

limited VOCA funds or for local supplemental funding. 

The policy challenge is to force the involved parties to 

identify a core of services needed by all victims and to ensure that those services are in place. Funding allocation 

also gives general government officials the opportunity to 

look for resolution of how victim/witness assistance 

should be initiated and the responsiveness of each criminal justice agency. Agreements between the program(s) 

and agencies that address each procedural step should be 

required. These agreements would resolve such issues as 

daily access to offense reports, the use of volunteers, and 

responsibility for initial referral. 

U.S. Advisory Commission on Intergovernmental Relations 147 
very 10 Important 

a 

6 

-3 

2 

2 4 

Q) Neutral 2 8 

i 

Not I 

Important 

Figure 6-1 

The Goals of Mediation 

R With Program 

Without Program 

Accountability Victim Reconciliation hnsihment 

Wholeness 

Source: U.S. Department of Justice, Office of Juvenile Justice and Delinquency 

Prevention, Ectim-Offender Mediation in Juvenile Justice Sytem (Washing- ton, DC, 1990), p. 3. 

Victim Involvement in Adjudication 

Basic services are designed to mitigate the possible 

confusion, intimidation, and inconvenience associated 

with police and judicial procedures for victims and witnesses. In addition, adjudication programs have been es- tablished in three other areas that involve only victims: 

mediation, sentencing, and compensation. 

Mediation 

Mediation has a long history in civil disputes. A similar approach to resolving criminal acts was not started until the mid-1970s in Canada under the title of Victim-Offender Reconciliation Program (VORP). The purpose of 

the original VORP project was to allow the victim and the 

offender an opportunity to reconcile and mutually agree 

on a sanction using a nonjudicial mediator.30 

There is strong agreement that accountability is the 

most important goal of mediation, as indicated in Figure 

6-1, representing a survey of all 171 organizations known 

to have a mediation program and 180 court systems selected at random. Persons who have 

been involved in mediation place greater emphasis on benefits to the victim, 

such as “victim wholeness” and reconciliation, than those who have not been 

involved in mediation. 

Restitution is the most frequent requirement of a mediation contract, and 

its use is increasing. Other requirements include community service, a behavioral requirement, and work for the 

victim. These elements make mediation 

particularly appropriate for juveniles, and 

the federal Office of Juvenile Justice and 

Delinquency Prevention (OJJDP) has established a Restitution Education, Specialized Training, and Technical Assis- tance (RESTTA) program. 

Almost half of the mediation programs are governed by private, nonprofit organizations, while 21 percent are 

under the direction of probation departments. Other state or county agencies 

administer 17.3 percent of the programs, and 7.4 percent are sponsored by 

courts. However, court initiatives to 

start programs decreased steadily during the 198Os.3l 

Not only has significant resistance 

from criminal justice officials been reported, but many victims will not participate. The reasons for conflict, as identified by program leaders, included difficulties in resolving basic issues surrounding whether: 

rn 

The process or the amount 

is more important; 

The state or the injured 

party is the victim; and 

Fairness to both victim and offender is pos- 

~ible.~* 

These conflicts lead to lack of awareness or cooperation from the court, probation departments, and community. According to one mediation program administrator, 

“Certain ones view VORP as an intrusion on their turf. 

Solving this by quiet diplomacy and persistence hasn’t always Another commented, “We invited the director, the juvenile judge, and the members of the executive committee to attend mediation; none ever did.”34The 

challenge was succinctly stated by one respondent as “con- vincing the district judges to try a new program and still 

make it seem as if it was their idea.”35 

However, other VORP programs have been able to 

overcome initial resistance. One respondent stated that 

the key to the program’s acceptance was “clearly outlining 

our philosophy and intent (consistent with court counselor 

intent for intervention), providing regular reports on success cases, and making the program visible.” Another 

148 U.S. Advisory Commission on Intergovernmental Relations 
achieved success by “placing more ‘system’ people on the 

Board of director^."^^ 

Victim Sentencing Input 

This option is used far more widely than mediation. 

Between 1974 and 1988,48 states passed legislation allowing input by crime victims at sentencing. Its greater acceptance relates to the fact that, unlike mediation, it supplements criminal justice procedures rather than replacing 

them. Judges and prosecutors stay in control of determining 

an appropriate sentence. Further, many victims need to have 

the court in charge because they are emotionally not able to 

confront their malefactors much less reach resolution. 

The victim’s input is usually in writing because most 

judges feel the statement will be more complete and accurate, and they can get pertinent information faster than 

through a potentially emotional outpouring. Many state 

and local jurisdictions have found that having impact 

statements prepared by the victims themselves achieves a 

middle ground between the court’s restraint and the victim’s emotion and may help promote the victim’s psychological recovery.37 It also will save time for the probation 

officer, who is usually the one in charge of getting the victim’s input. However, forms also need to represent a compromise between the use of court terminology-such as 

restitution, deposition, preliminary hearing, and crime 

compensation-and lay understanding. Victims who do 

not understand their rights do not have rights. 

In some states, victims also are involved in how long 

the offender will remain incarcerated. At least 10 states 

have a notification program to inform victims when the offender is up for parole consideration and to invite victim 

input regarding the nature of the criminal act perpetrated 

by the offender. 

Victim Compensation 

Victim compensation programs were established by 

almost all states during the 1980s. They provide compensation for medical bills, lost wages, and funeral expenses. 

The compensation is limited, however. As of 1987, most 

states had a recovery limit between $10,000 and $25,000, 

while eight states had a limit between $30,000 and $50,000. 

Two states provided unlimited coverage of medical expenses. In all but six states, victims are not eligible if they 

have not reported the crime to the police within one to seven 

days, but an arrest or conviction need not take place.38 

Especially in the early years of state victim-compensation programs, general government elected officials frequently needed to ensure that victims were informed that 

compensation was available. Fund balances generated by 

court fees were not being drawn down, and the number of 

awards per reported crime varied significantly between jurisdictions in the same state. Remedies-such as clearly 

designating responsibility within the criminal justice processes and directing that information be prepared in lay 

language to publicize the program-have resolved the initial problems in many instances. 

However, as noted throughout this chapter, lack of 

system outreach and trust in the system leave many lowincome victims unlikely to participate in compensation 

programs. One victim-services director described the unfortunate chain of events that often occurs: “Victims in a 

lower income strata are less likely to have jobs held after a 

disabling assault, savings to pay for stolen rent money, 

food to feed the children, etc. A victimization has a snowball 

effect and can be a cause of homelessness and instability.”39 

The compensation any victim may receive for property losses, as opposed to personal injury, depends on the 

judge ordering restitution as part of the sentence and assuring that it is paid. The public strongly supports restitution based on two premises: victims are compensated and 

offenders are forced to confront the effects of what they 

have done. Elected officials, both within and outside the 

criminal justice system, also support these goals, but may 

have to resolve two other policy issues: offender rehabilitation and collection. 

As noted in the discussion of day fines in Chapter 3, if 

fines do not have some relation to ability to pay, they may 

interfere with other goals of rehabilitation. Some probation officers have noted that fee payments too often become the first topic of discussion with probationers and 

that judges may order restitution payments that reflect the 

impact on the victim without adequate information on the 

offender’s total obligations and ability to pay.4O Concerns 

about imposing realistic financial obligations is particularly strong in the juvenile system, where restitution is being 

used increasingly. 

Collection of restitution for the victim often is secondary to other obligations, particularly supervisory fees. 

In a 1988 survey, 41.8 percent of money collected from 

felony offenders was for correctional fees, compared to 

28.6 percent for restitution payments, 20.8 percent for 

court fines, and 6.2 percent for court costs. The emphasis 

on correctional fees reflects that in many states these fees 

are a direct source of probation agency funding. It also 

may reflect adoption of an official judicial or legislative 

policy over how each dollar collected from an offender is 

to be apportioned. In some cases, top priority is given to 

fines or restitution, but, generally, collection of supervision fees ranks as a first or second pri0rity.4~ 

Summary 

The status of restitution chronicles the victims’ movement. The 1980s brought significant legislative recognition of the impact of crime on victims-just as restitution 

recognizes that a person, not just the state, has been violated. However, the degree of consideration the victim actually will receive is often compromised by the ongoing operation of the criminal justice system-just as collecting 

fees may outweigh the importance given to restitution. 

Although laws have been enacted to consider Victims, 

many general government elected officials may still need 

to encourage criminal justice officials to work with victim 

assistance programs if the spirit of these laws is to prevail. 

They also may have to fund the criminal justice system so 

that the rights they espouse for victims are not subjugated 

to operating needs. 

U.S. Advisory Commission on Intergovernmental Relations 149 
LOCATING CORRECTIONAL. FACILITIES 

IN THE COMMUNITY 

The crux of community policing and victim-assistance 

concerns involves establishing citizen trust in the criminal 

justice system. Officials may have to deal with bitter accusations but, from the beginning of the government’s outreach efforts, the theme can be struck that the goal is to 

better serve the individual law-abiding citizens. In contrast, when trying to place a correctional program in the 

community-except in the most job-hungry locality- the 

discussion can focus only on assuring the affected citizens 

that they will not be worse off. 

This section examines the role of elected officials in 

making siting decisions. This role can be crucial because 

these officials often have the political leverage, if not the 

legal authority, to block the decision to locate a correctional facility or program if they choose. While they may 

be aware of the wider importance of the decision, they also 

must reflect the concerns of their constituents. Many correctional administrators have been frustrated by lack of 

support from elected officials in locating a community 

program, but the way in which they approach the decision 

process can make a significant difference in the way 

elected officials will respond. 

Importance of the Decision Process 

In general, the more structured the decision process, 

the better. Citizens often start with the feeling that an arbitrary decision is about to victimize them. If this feeling is 

confirmed in the information presented to them about the 

site decision, both as to the analysis that has led to their 

community being selected and the final decision process, 

their worst fears about the operation of the facility will be 

inflamed. If government and the criminal justice system 

are perceived to be cavalier in making the correctional 

program location decision, citizens may fear that officials 

will be equally insensitive in assuring that the actual operation will not endanger their neighborhood. 

Elected officials also are well served by a structured 

decision process. Even if they do not involve themselves in 

meetings called to discuss the correctional proposal, they 

must be prepared to answer questions during their routine 

community contacts and speeches. If they are unable to 

describe a deliberative, controlled process, many constituents will conclude that it is the responsibility of their 

elected representative to bring it under control. On the 

other hand, to the extent that the official can describe a 

process that clearly defines a decisionmaking procedure 

with multiple levels of input and fairness, the more the individual official will be shielded from blame for not having 

been able to stop the decision. 

A structured decision process also will provide the information to build trust, not just keep distrust from growing. Citizens must be given enough information to understand that there is a documented need for this facility in 

this location. For prisons and jails, this means the type of 

comprehensive long-range plans described in Chapter 5. 

Correctional officials must be able to indicate the types of 

offenders who will be housed in the facility. They also 

must be able to produce an analysis that demonstrates that 

there is a sufficient number of inmates of these types in 

the system to justify the facility; otherwise community suspicions may become inflamed that the building is a ruse to 

house more serious offenders. 

Even if citizens come to accept that there is a need for 

additional space to serve a given type of inmate, the question still remains, “Why in this community?” Again, the 

comprehensive plan is essential. By categorizing the projected population growth for the next ten years, correctional officials should be able to use the analysis of program 

and security needs, combined with cost considerations, to 

defend their choice. Cost considerations include economies in expanding at an existing site, availability of sewer 

and water, availability of personnel, and site costs. 

In the case of state prison facilities, the program and 

security analysis should be able to present the need for a 

range of facilities and locations, such as: 

High-security facilities for inmates who will 

not be released within the next year and who 

pose a security risk. In theory, these facilities 

can be very large; in reality, their size is limited by the work force available in the region. 

Size also may be limited by sewerage disposal 

restraints under the Clean Water Act. 

Secure treatment-oriented facilities for inmates who may pose a security risk but who 

will benefit from programming. The location 

of these facilities must first consider the ability to attract and retain treatment professionals. Effective programming usually is not 

compatible with a mega-sized facility. 

Low-risk residential facilities for inmates 

who do not pose a security risk and who will 

return to the community in the near future. 

The facilities should be as accessible as possible to urban areas. For a jail program or a 

prison halfway house, they should be accessible to public transportation. 

Each system will have its own configurations and vari- ations. The point is that correctional officials should be 

able to lay out to the affected community, and to the 

elected officials who represent it, that there is a need for 

and there are plans for different types of facilities in all regions of the state. To the greatest degree feasible, all will 

share the burden. 

In the case of local jails or probation and parole facilities and nonresidential programs, the same type of jurisdiction-wide picture should be developed, emphasizing 

the need to work with offenders in the communities from 

which they come and to which they will be returning with 

or without support services. Data also might be developed 

that would document the lower rates of recidivism among 

former inmates who have been able to participate in treatment and have received supervision within their home 

community, compared to those who have 

150 U.S. Advisory Commission on Intergovernmental Relations 
Focus 

Local Zoning and Correctional Siting 

In rural areas, federal or state EIS requirements are 

he main tool used by local citizens to block prison faciliies. In urban areas, the main tool is local zoning codes 

ind ordinances. Officials who are responsible for locating 

mrrectional facilities and programs have taken a number of 

tpproaches to deal with the intergovernmental conflict sur- 

*ounding control over land use in a community. 

State Law. It is possible to override local authority 

:hrough state legislation. Former Missouri Governor 

lohn D. Ashcroft pushed legislation requiring that treat- ment facilities be permitted in any areas zoned commer- 

:ial or industrial unless community leaders can find an 

dternative site. Under emergency legislation, the Ore- gon legislature suspended EIS requirements for the sit- ing of the first two prisons in its expansion program. The 

act stipulated that state agencies, counties, cities and po- litical subdivisions could not refuse to issue the permits, 

licenses, and certificates that were necessary for con- structing and operating facilities. However, enforce- ment authority was not suspended under the Oregon 

Law of 1987, section 7, chapter 321. 

Court Suit. In some instances, the right of a locality 

to deny a correctional facility under its zoning powers has 

been challenged in court. The U.S. Department of Justice has brought suits in federal court, using antidiscrimi- nation provisions in the fair housing statutes. The Office 

of National Drug Control Policy is reviewing further the 

extent to which the federal government can or should get 

involved in local siting decisions. 

Existing Facilities. It is sometimes possible to step 

around the intergovernmental issue by using existing 

government facilities. Local master plans typically desig- nate major government-owned parcels in a special cate- gory, making their use for a correctional program or fa- cility less vulnerable to legal challenge. For this reason, 

New York is exploring locating one or more “drug treat- ment campuses” on government-owned land. The treat- ment campuses are designed to serve 2,000 persons in 

outpatient programs, which would include a crack clinic, 

separate treatment programs for women, and services 

for children, linked by core services, such as health care, 

education, job training, and employment services. In 

1990, under the National Drug Control Strategy, federal 

departments were directed to canvass their property 

holdings for land that could be reported excess and suitable for prison construction. 

Mandated Share. While existing state facilities can be 

converted or expanded, this advantage does not exist with 

new land acquisitions. Local governments typically have 

seen no need to place opportunities for “locally unwanted 

land uses” (LULUs) on their master plans. Therefore, a 

more coercive intergovernmental approach was recom- mended by the California Blue Ribbon Commission on In- mate Population Management: “Local governments in 

major urban areas should be mandated to provide sites 

within the community for community correctional facili- ties, parole offices, prisons and jails in numbers proportion- ate to the number of offenders from that area in the cor- rectional system. The Legislature should require that 

county jail bond funds administered by the Board of Cor- rections be provided to only those counties which have ap- proved a prison site if one is required in the county.” 

Although these examples represent controversial 

intergovernmental approaches, the level of controversy 

reflects the high level of citizen resistance that often ac- companies a correctional facility. The alternative is ex- traordinary delay, which is usually the case when a sheriff or jail administrator-who does not have any of the 

extraordinary powers of the state within his locality- tries to locate a facility. In 1981, voters in Fairfax County, 

Virginia, outside the nation’s capital, approved a bond 

for a 100-bed DUI facility. A site was not settled on until 

1988. “People thought we were locating another Lorton 

[a 6,000-bed District of Columbia prison] in the county,” 

according to the sheriff. “Who are drunk drivers? 

They’re Redskins and congressmen’s children. I was 

beat about the head by politicians.” 

Sources: W. John Moore, “Rethinking Drugs,” National Jounzal, February 2,1991, p. 270; Stanley Lundine, “Treatment Key to Fighting 

Drugs,’’ Jounzal ofstate Government 63 (Spring 1990): 35-36; (California) Blue Ribbon Commission on Inmate Population Man. 

agement, Final Report (Sacramento, 1990), p. 126; and Patricia Conley, “Counties Review Sentencing Standards,” County News 

November 5,1990. 

Recognizing Community Interests from local merchants for resale to the inmates; and improvements to court facilities affected by inmate-related 

suits. A small community also may realize indirect benefits from adding the inmate population to its census count 

used in state funding formulas for such purposes as 

schools, road funds, and revenue sharing. 

Some local governments have actively sought state 

and federal prisons for their communities. “This is just a 

cold business decision,” according to a local chamber of 

commerce president in Texas, “The city needs economic 

The next step in developing citizen acceptance of a 

correctional facility is to mitigate its effect on the community as much as possible. This can include aesthetic modifications, such as building colors, the height of security 

lighting, setbacks, and entrance landscaping. For prisons, 

it also can involve agreements of direct benefit to the community, such as shared development of municipal sewer or 

water upgrades; agreements to buy commissary items 

U.S. Advisory Commission on intergovernmental Relations 151 
diversity, especially new businesses unfazed by rollercoaster interest rates, slumping commodity prices and 

plunging oil revenues. We see a prison as a well-managed, 

non-polluting, long-term industry.”43 Core cities that have 

lost industrial jobs also have begun to compete, but the 

most interest usually comes from rural areas. In Idaho, 25 

communities applied for a new state prison, “including 

one that a decade ago, an Idaho official said, packed the 

local high school auditorium to rally against a plan to use a 

former sanitarium as a womens’ prison. ‘We almost got 

lynched,’ joked an Idaho official, ‘but with the sawmill 

closed and the farm economy hurting, the town had a 

change of heart.’ ”44 Even if the community has sought a 

prison and state officials have determined that correctional management considerations can be accommodated in 

that location, the earlier experience of the Idaho community 

underscores the fact that citizens still need to have their con- cerns addressed or “official” support will evaporate rapidly. 

Efforts to gain community understanding of a proposed corrections program to be located in a community 

will be the same no matter what the initial indication of 

support has been. After this point, citizen reaction typically takes one of two divergent paths: willingness to work 

with corrections officials or uncompromising resistance. 

General government officials can play a key and ongoing role if the community accepts or does not find a way 

to block the facility. They often are the ultimate ombudsmen. While a community liaison committee should be 

formed with clearly defined commitments from correctional administrators to work with it, if elected officials 

also keep themselves informed, concerns can be addressed before they become disruptive. Through this process, correctional officials may find they also gain welcome 

political support for their broader budget needs and a voice 

within general government that will speak to the impact of 

new law enforcement initiatives on the total justice system. 

Legal Strategies 

Filing a lawsuit is the ultimate tool of citizens determined to prevent a correctional facility from being located 

in their community. (Of course, they also will have organized an effort to defeat every elected official who is not 

carrying their banner.) Nothing can guarantee that a lawsuit will not be filed or that a given judge will not respond, 

at least by delaying the facility for many months while fully 

considering each motion. However, the chances of the 

court ruling that the facility cannot be located where proposed is directly related to the soundness of actions by all 

government officials leading up to the proposal being made. 

Comprehensive planning is crucial to avoid a successful lawsuit, just as it is to sound correctional management 

not being compromised by construction decisions, to saving money in construction, to getting funding approved, 

and to addressing community fears and distrust. The initial planning process must be carried out with a full understanding of the state’s EIS requirements, such as timely 

notification; procedures for notification; what, if any, capital outlay steps can be taken without prejudicing the decision; and the adequacy of the EIS submission. Attention 

also needs to be given to local zoning restrictions and federal Clean Wafer Act and historic preservation requirements and restrictions. As time consuming as some of 

these processes are-particularly in the face of an overcrowding crisis or the effects of inflation-the delay is inconsequential compared to a protracted lawsuit because 

prescribed regulations were not followed. 

SUMMARY 

Law-abiding citizens have a right to expect that in protecting the public’s safety, the criminal justice system will 

not inadvertently harm individuals. This applies to policing activities, court procedures, and the establishment of 

correctional programs and facilities in a community, To 

defend this right, general government elected officials 

may need to assume the role of ombudsman, reacting to 

constituent concerns. However, citizen concerns often 

can be addressed even more effectively by ongoing support of sound governmental planning and management. 

In policing, the challenge is to foster greater coordination between governments and between criminal justice 

agencies through the way police and sheriff’s deputies are 

hired and trained and in the definition of policing functions. 

In particular, decisions to add officers should be coordinated with the ability of the total criminal justice system to 

carry out public expectations of what should follow increased 

arrests. Community policing places particular importance on 

being able to reach across agency and government lines to 

focus resources on crime prevention and build confidence in 

residents that they can regain their communities. 

The most effective use of total tax dollars also points to 

greater attention to the relation of policing activities with effective prosecution and the integration of police departments in surveillance of offenders on pretrial release, probation, and parole, even though these functions are funded by 

different units of government. Other initiatives and sound 

management practices, such as avoiding problems related to 

hiring surges, will help reduce the isolation and frustration 

often felt by police officers and sheriff‘s deputies. 

The most important aspect of efforts by general government elected officials to assist crime victims is the use 

of oversight opportunities and reporting mechanisms to 

assure that the legislative recognition given to victims’ 

rights during the 1980s is not compromised or ignored. 

Realistic restitution needs to be determined and then collected. There needs to be impartial outreach in victim-compensation programs, particularly in crime-impacted communities. Court related victim/witness programs must be 

sensitive to the special needs of different types of individuals 

victimized by crime, while providing assistance to any citizen 

faced with needing to understand the processes of justice. 

Finally, even though placing a correctional program 

in a community is often extremely controversial and potentially threatening, solid, long-range planning-as discussed in Chapter 5 to save money and improve correctional 

management-is the best ally in reducing controversy and 

ensuring that the right decision is sustained. 

152 U.S. Advisory Commission on Intergovernmental Relations 
NOTES 

ACIR computation from U.S. Department of Justice, Bureau 

of Justice Statistics (BJS), Justice Expenditures and Employment, 1988 (Washington, DC, 1990). 

Joan Petersilia, Allan Abrahamse, and James Q. Wilson, Police Performance and Case Attrition (Santa Monica: RAND, 

1987). 

Ibid., p. 35. 

Ibid. 

’Ibid., p. 34. 

Ibid. 

Leonard Matarese, International City/County Management 

Association Panel, June 17, 1991. 

Edwin Delattre, Character and Cops: Ethics in Policing (Wash- ington, DC: American Enterprise Institute, 1989). 

Jim Fyfe, U.S. Conference of Mayors Panel, May 20, 1991. 

lo “State and Local Police Departments,” BJS Bulletin, February 

1992. 

l1 Darryl Stephens, International City/County Management As- sociation Panel, June 17, 1991. 

l2 Carl E Horowitz, ‘Rn Empowerment Strategy for Eliminating 

Neighborhood Crime,” Heritage Foundation Backgrounder, 

March 5, 1991. 

l3 Daniel L. Skoler, Organizing the Non-System (Lexington, Mas- sachusetts: D.C. Heath, Lexington Books, 1977). 

l4 “Dinkins, Brown announce the ‘Park, Walk and Talk police ini- tiative’,” US. Mayor 57 (November 1990). 

l5 U.S. Department of Housing and Urban Development, Office 

for Drug-Free Neighborhoods, Home Front (Washington, DC, 

Fall-Winter 1990). 

16“Code Wars: Fort Lauderdale Fights Back,” Safe HAVEN 

Newsletter (National Coalition for Drug-Free School Zones), 

(First Quarter 1991): 3. 

17Steve Cramer, “City Ideas that Work,” Nation’s Cities Weekly, 

July 29, 1991. 

Ibid. 

ation Panel, June 17, 1991. 

Association Panel, June 17, 1991. 

(June 4, 1990). 

l9 Taken from International City/County Management Associ2o Reuben Greenberg, International City/County Management 

21 Daniel Kagan, ‘Apartment Security Is Heaven-Sent,” Znsiglzt 6 

22 Confidential interview, 1990. 

23 Robert B. Hawkins, Jr., “Futures Forum: Diversity and Munic- ipal Openness,” Nation’s Cities WeekZy, April 1, 1991, p. 3. 

24 John J. DiIulio, Jr.,”The Impact of Inner-City Crime,” The 

Public Interest 96 (Summer 1989): 32-36. 

25 Ohio Governor’s Commission on Socially Disadvantaged 

Black Males, Ohio’s African-American Males: A Call to Action, 

Volume One (Columbus, 1990). 

261bid., Volume Two. 

27 “Women in Prison,” BJS Special Report, by Lawrence Greenfeld and Stephanie Minor-Harper (Washington, DC, March 

1991). 

28 Roy Sudipta, “Offender-Oriented Restitution Bills: Bringing 

Total Justice for Victims,” Federal Probation 54 (1990): 30-36. 

29 Ohio's African-American Males: A Call to Action, Volume Two, 

pp. 14,98. 

30 Mark S. Umbreit, “Violent Offenders and their Victims,” in 

Martin Wright and Burt Galaway, eds., Mediation and Crimi- nal Justice (London: Sage Publications, 1989), pp. 99-112. 

31 Hughes and Schneider, Victim-Offender Mediation in the Juve- nile Justice System. 

321bid., p. 1. 

33 Ibid., p. 14. 

34 Ibid. 

35 Ibid. 

36 Ibid., p. 14. 

37 Robert C. Wells, “Considering Victim Impact-The Role of 

Probation,” Federal Probation 54 (1990): 26-29. 

38 BJS, Report to the Nation on Crime and Justice. 

39 Ohio's African-American Males: A CalZ to Action, Volume TWO, 

4o Dale Parent, Recovering Correctional Costs through Offender 

Fees (Washington, DC U.S. Department of Justice, National 

Institute of Justice, 1990). 

p. 100. 

41 Ibid. 

42 Harris County Community Justice Council, Harris County 

Community Justice Plan: Fiscal Year 1991 (Houston, 1990). 

43 W. John Moore, “Paying for Punishment,” National Journal, 

March 14, 1987, p. 613. 

441bid., p. 614. 

U.S. Advisory Commission on Intergovernmental Relations 153 
154 U.S. Advisory Commission on Intergovernmental Relations 
7-CRIMINAL JUSTICE FUNDING 

AND COST SAVINGS 

Q riminal justice has been the fastest growing area of 

state and local kxpenditures almost every fear since 1975. 

Only occasionally has it been surpassed by human service 

budgets, driven by the cost of Medicaid.’ The factors driving this growth do not show any indication of major change 

in the near future, and most elected officials interviewed 

during this study do not see that pressures for increased 

criminal justice expenditures will abate. 

Indeed, the trends toward even greater use of imprisonment, discussed in Chapter 2, appear to be continuing, 

as evidenced in anticrime legislation before Congress, 

which pressures state lawmakers to be equally tough on 

crime. Increased use of sentencing options will not relieve 

budgetary pressures either, at least in the short term, because if they are to reduce costs in the long term by effectively reducing recidivism, they must be adequately staffed, as 

discussed in Chapter 4. In fact, increased community supervision will detect more violations that may result in incarceration. Finally, even the most optimistic proponents of 

community policing as a crime deterrent, discussed in 

Chapter 6, caution that successful programs have not meant 

decreased police and sheriff’s department staffing. 

Therefore, this chapter must assume that lawmakers 

and chief executives will continue to be challenged to fund 

significant criminal justice budget increases. As in other 

areas of public budgeting, funding needs can be addressed 

in four ways: 

w Cutting costs; 

Increasing intergovernmental support; and/or 

w Appropriating more general fund tax revenue. 

Making users (offenders) pay more; 

Especially in criminal justice, appropriating more tax revenues is a last resort. Appropriations will be less controversial, however, to the degree that policymakers and the 

public perceive that the other three avenues have been 

pursued fully. 

Making offenders pay more has great appeal because 

it combines the broadly applicable logic of user fees with a 

popular concept of criminal punishment. Therefore, this 

chapter begins with an analysis of the potential of fees, 

fines, charges, and recouping criminal gains for meeting 

criminal justice budgets. Establishing a realistic assessment of the limited amount of revenue that can be raised 

through these particularly appealing approaches, first, 

brings the magnitude of the budget challenge that remains 

into sharper focus. 

The next section takes up cost savings, which is another 

publicly appealing answer to meeting budget demands. 

Elected officials are held politically accountable for efficient, 

cost-effective expenditure of public tax revenues. They, in 

turn, must hold program managers accountable. Budget approval provides the ultimate focus for this accountability. 

This section discusses three principal areas for cost saving 

frequently raised in general government budgeting: 

Management improvements, as mentioned 

throughout this report; 

w The potential and the risks of privatization; 

and 

Intergovernmental initiatives to save costs 

through sharing resources. 

The final section focuses on intergovernmental funding alternatives. Debates on intergovernmental funding 

responsibility reflect aspects of the criminal justice system’s 

unique structure of checks and balances, as well as more 

general concerns, such as state or federal mandates. The 

analysis of various formulas used to allocate intergovernmental criminal justice funding raises the concern that the 

constitutional principle of community standards may become 

a reflection of local ability to pay rather than philosophy. 

Ideally, before discussing any of these issues, these introductory paragraphs would conclude with a summary of 

current sources of criminal justice funding: What are 

they? How much do they contribute? What is their ratio to 

costs? Unfortunately, such a perspective is not possible 

U.S. Advisory Commission on Intergovernmental Relations 155 
because (1) state-local funding responsibilities vary so 

greatly, (2) most government budgets do not provide a 

cohesive picture of criminal justice revenues, and (3) criminal justice functions are not narrowly focused. Specific 

problems include: 

Criminal court charges and fines are shown only 

under general revenues and/or grouped with 

marriage licenses, recordation fees, parking 

fines, or even recreational fees. 

State and local dual responsibilities result in locally collected revenues going to the state, or 

state support not being fully shown (for example, 

county complaints that the state per diem payment for state inmates backed up in local jails is 

too small may ignore separate state assistance for 

deputies’ salaries and personnel benefits). 

Specific revenues are earmarked, for example, to 

capital financing, indigent defense, or probation 

supervision. 

It is difficult in cost and revenue summaries compiled by federal and state agencies to separate civil and criminal justice court expenditures, categorue crime prevention programs (e.g., street 

lighting and code enforcement), and allocate 

treatment costs. 

Factors such as these place particular importance on general government officials calling for a compilation of all 

intergovernmental sources of funding, revenues raised, 

and a definition of criminal justice activities for their particular unit of government. 

This chapter underscores such initiatives that public 

officials can take while acknowledging the limited prospects of significant budget relief. Just as there are no easy 

answers to stopping criminal activity, there is no easy way 

of funding criminal justice costs. No matter how effective 

lawmakers and chief executives are in holding offenders, 

program managers, and other governments accountable, 

in the end, it is the public that also must be accountable for 

matching the demand for criminal justice and public safety 

with the taxes to pay for it. 

REWNUES GENERATED 

WITHIN THE CRIMINAL JUSTICE SYSTEM 

Out of necessity, many governments have turned to 

user fees to replace intergovernmental spending cutbacks 

or reduced tax collections from regional economic downturns. Philosophically, user fees also are embraced as a 

means to shift unwarranted burdens from taxpayers who 

do not use or directly benefit from certain government 

services to those who do. 

Faced with rising criminal justice costs, many general 

government officials find it particularly appropriate to 

shift costs from law-abiding citizens to offenders because 

monetary payments also can be used as a sanction for 

criminal behavior. Indeed, there is a tradition of fines as 

criminal penalties. The difference today is that many jurisdictions are looking first at criminal justice costs and then 

setting the fees, rather than setting a monetary fine that 

reflects the seriousness of the crime. The nexus between 

costs and criminal charges is emphasized further in localities that earmark fees for the use of the agency collecting 

them, in part to increase the level of collection. 

Sound budgeting dictates that elected officials have 

realistic expectations about the amount of relief to general tax revenues that can be achieved from criminal justice 

system revenues. In significant areas, the amount of revenue that can be raised is very limited. Accordingly, the following list and the discussion that follows are ordered by 

the likelihood of collection and how much these criminal 

justice revenues can be expected to bear full program costs: 

Prison and jail industry sales, 

DUI fines and counseling fees, 

Drug treatment fees, 

Supervisory fees, 

court costs, 

Fines, 

Restitution, and 

Asset seizures and forfeitures. 

Prison and Jail Industry Sales 

Not only can the price of goods made by inmates be set 

to cover the total cost of the program-including wages, 

repayment of equipment start-up costs, and distributionbut it should be. Eliminating subsidies helps answer con- cerns that correctional programs may present unfair competition to the private sector and its workers. Setting 

inmate wages to fairly reflect productivity not only further 

reduces complaints of unfair competition, it also provides 

funds for inmates to pay restitution, fines, and court costs 

that often go unpaid. Collection is not a problem because 

the courts have ruled “that inmates’ labor belongs to the 

state and that inmates’ compensation is solely by the grace 

of the state and governed by rules promulgated by legislative direction.”2 

DUI Fines and Counseling Fees 

Because almost all drunk drivers are employed, it has 

been common for most court-ordered drunk driving programs to be supported solely from fees. When states subsequently enacted mandatory jail terms for repeat drunk 

driving offenses, some counties picked up on the fact that 

even offenders with a serious drinking history are still apt 

to be employed. These counties began charging drunk 

drivers for their jail stays. 

For example, in Montgomery County, Maryland, 

drunk drivers and other minor offenders are charged $80 

for each weekend sentence, with waivers for inmates who 

are too poor to pay.3 The Pennsylvania State Association 

of County Commissioners’ Jail Overcrowding Project rec156 U.S. Advisory Commission on Intergovernmental Relations 
ommended charging DUI offenders a daily fee and using 

the fees to establish less secure housing sites for DUI and 

other low-risk offenders. The alternative sites would allow 

those employed to keep their jobs, pay off court costs and 

fines, room and board, and support their families. The 

Pennsylvania report noted that 60 percent of DUI offenders who receive mandatory jail sentences are empl~yed.~ 

Drug llreatment Fees 

It has been estimated that two-thirds of all persons illegally using drugs have jobs? Therefore, in many jurisdictions where drug use is not related to high poverty rates, 

the same user fee approach can be taken for drug users as 

for DUI offenders. However, for budgeting purposes, 

while all participants in drunk driving programs represent 

a specific offense category and DUI fees can be set to cover total program costs, the caseloads of drug and alcohol 

abuse treatment programs are driven by the need for treatment of individuals found guilty of many types of crimes. 

Therefore, general government budgeting must expect to 

subsidize the budgets of substance abuse programs, although 

certain offense categories may be self-supporting. 

For example, parolees are seldom in a position to be 

able to pay for drug treatment; even if they are employed, 

it will be in low-wage jobs. Collection rates also vary by the 

category of offender. It will be harder to collect from parolees, even if fees are set according to ability to pay, because they are apt tQ be reluctant participants whose expectations have been set by free prison programs. In contrast, a 

first-time arrestee in a deferred prosecution program has 

a high incentive to pay for and participate in treatment 

rather than be found guilty on a felony drug charge. 

Supervisory Fees 

In the last two decades, many states passed legislation 

to authorize charging offenders for the supervision they 

require (see Table 7-1). 

Table 7-1 

Number of State Correctional Fee Enabling Statutes 

Passed Before and After 1970 

Years Inmates Inmates Parolees Probationers 

Prison Jail 

Before 1970 21 17 3 8 

19751987 15 9 12 20 

Total 36 26 15 28 

Source: U.S. Department of Justice, Recovering Correctional 

Costs through Offender Fees. 

As the table indicates, the concept of supervisory fees first 

was applied to confined offenders and then extended to 

probationers and parolees? The lack of emphasis on collecting fees from parolees, again, reflects the fruitlessness 

of trying to raise revenues from people who do not have an 

adequate source of income. In contrast, although prison 

and jail inmates have only minor sources of income, their 

personal expenses are being covered by the government, 

for which fees may be collected when the inmate becomes 

involved in a work-release or prison industries program. 

Four factors affect the amount of revenue general 

government elected officials can anticipate from using supervisory fees for probation and parole. In the order of 

how much they limit revenues, the factors are: ability to pay, 

collection rate, the amount of the fee, and judicial discretion. 

Ability to Pay 

Abilitytopayoften is related to the typeof crimecommitted. Typically, the less serious the offense categorycovered by the program, the greater the proportion of that 

program’s budget will be able to be covered by fees. This is 

the same principle that was mentioned in paying for alcohol versus drug-related programs. Texas officials estimate 

that about 85 percent of the misdemeanor probationers 

pay all their assigned supervision fees, compared to 60-65 

percent for felony probationer^.^ 

Rate of Collection 

The second most important determinant of the proportion of program costs that can be borne by supervisory 

fees is whether the agency charged with collecting the fees 

believes its program will benefit from the fees collected. 

In a 1988 survey, 13 of the 17 states that responded reported that revenues from fees averaged only 9.1 percent 

of their probation and parole operating budgets. However, in four states, the percentage of the operating budget 

was much higher: Texas (50.4%), Florida (34.5%), Indiana 

(30.3%), and Arkansas (29.1%): 

Texas probation agencies keep the fees collected; in 

Florida, all fees are deposited in the state’s general fund. 

Nevertheless, both agencies believe the revenue is appropriated to benefit their programs directly, demonstrated 

in part by the fact that because of increased fee revenue 

neither state has cut general fund appropriations? 

The examples of Texas and Florida seem to indicate 

that it does not matter if the agency retains the supervisory 

fees it collects. However, Oregon’s experience indicates 

that it does. Under the Oregon Community Corrections 

Act, counties have a range of options. In counties that 

have opted to keep the fees collected, fees make up 13.7 

percent of their field supervision budgets, while in counties that return the fees to the state, fees equal only 6 percent of their operating budgets.1° 

Collection rates also depend on the willingness of the 

court to overlook nonpayment if probation or parole officers report violations. Prosecutors and judges may believe 

that limited jail space needs to be used for more serious 

offenses than for nonpayment, and they may feel that by 

rejecting all but the most blatant violations, they will discourage probation or parole o€ficers from clogging their 

docket. Recognizing these factors, the Jefferson County, 

Texas, Adult Probation Department recommends ten days 

of community service rather than jail time for willful nonpayment of supervision fees. “Faced with the prospect of 

two weeks of hard work, probationers reportedly often 

catch up on delinquent payments.”” 

U.S. Advisory Commission on Intergovernmental Relations 157 
The Amount of the Fee 

The third factor that affects the percentage of the 

budget that can be covered by fees is the amount of the 

fee. If fees are set too high, collection may be reduced by 

an inability to pay. If fees are set too low, probation and 

parole officers may see little reason to hassle the offender 

over payment and will concentrate on other supervisory and 

counseling concerns. Probation managers are likely to accept 

the officers’ priorities if they note that it takes more agency 

resources to collect the fees than the amount collected. 

In contrast, Texas policies permit fee revenues to exceed the cost of collection substantially. In part for this 

reason, fee revenue as a percentage of total funds for basic 

probation in Texas grew from 37.4 percent to 56.0 percent 

between 1980 and 1987.’* Finally, higher fees-especially 

those perceived as flowing back to benefit the programmay serve as an incentive to getting the parolee or probationer into gainful employment. 

Judicial Discretion 

The last determinant controlling the proportion of 

operating costs that can be borne by supervisory fees is 

court priorities. Unless their discretion is narrowly de- fined by law, judges may consider total legal obligations, 

such as child support, debts, and other criminal penalties, 

in setting the amount of the supervisory fee or in waiving it 

completely. Judges also may set priorities for how any 

money collected from an offender shall be allocated. For 

example, restitution or even court costs may be given precedence over fees for drug testing or electronic wrveillance equipment ~enta1.l~ 

In many jurisdictions, the court seems to favor supervisory fees. As cited in Chapter 6, in a survey of 53 state 

and local agencies, 41.8 percent of the funds collected 

were for correctional fees, 28.6 percent for restitution, 

20.8 percent for court-imposed fines, and 6.2 percent for 

court ~0sts.l~ However, within these averages, individual 

judges can effect significant differences. For example, 

among the Oregon counties that retain the supervisory 

fees collected, there was a range from 6.2 percent to 24.7 

percent in the proportion of probation agency budgets 

covered by fee collections. This range was influenced significantly by judicial decisions to emphasize restitution 

over supervisory fees.15 

The foregoing discussion of factors affecting the 

amount of revenue general government officials can expect to budget from probation and parole supervisory fees 

also applies to fines, court costs, and restitution. Amounts 

must be a realistic reflection of ability to pay, as well as of the 

cost to collect. If the agents collecting the fees see a benefit, 

collection rates will be increased. Also, while budgetary pressures to raise revenue may result in more meaningful penalties for scofflaws who are otherwise productive members of 

society, increased monetary penalties will be counterproductive if they place unattainable economic burdens on offenders who cannot meet their other basic obligations. 

Court Costs 

Depending on the type of court, substantial revenues 

can be collected through charging court costs. Lower 

courts that process numerous minor misdemeanor and local felony charges will realize a much higher proportion of 

their budget than will trial courts of record that hear serious 

state felony charges. It is not uncommon, in fact, for counties, cities, towns, and townships to pass identical ordinances 

to gain jurisdiction over minor offenders, in part because 

the combination of court costs and fines for minor offenses 

is a significant source of funds to support their total local 

court activity. Collection from otherwise law-abiding citizens 

is handled relatively routinely by the court clerk’s office. 

In contrast, charges for court costs for state felonies 

are not commensurate with the actual cost of the complex 

due process requirements to adjudicate charges that can 

result in imprisonment. In addition, many arrests do not 

lead to convictions; therefore, no court costs are assessed, 

even though court resources have been used. 

As previously noted, the importance attached to collecting these fees, as well as to pursuing nonpayment, varies among jurisdictions. Although over 80 percent of the 

probation agencies that are part of the judiciary collect 

court fees, only half of the probation agencies under general government do.16 In fact, it is possible for an inmate to 

become aware of owing court costs and fines only on being 

released from prison. Virginia found it necessary to pass 

legislation in 1988 to require that clerk of court offices, 

courts, and DOC establish a system to inform inmates. 

The goal of the legislation was to improve collections and 

to create one less obstacle to the inmate’s successful reintegration into ~0ciety.l~ 

Fines 

The purpose of a fine is to inflict punishment. Fines 

traditionally have been deposited in the general fund. In 

contrast, treatment and supervision fees are a rather recent innovation to meet budget pressures; they are intended to fund services rather than to punish and are often earmarked. The distinction can be seen in the 

Maricopa County (Phoenix) deferred drug prosecution 

program, in which offenders pay the same amount of 

money, whether it is a “fee” used to pay for participation in 

drug treatment or a “fine,” if they refuse treatment and 

are found guilty of drug possession. 

Another distinction between fees, fines, and court 

costs is instructive for general government officials: 

w 

Fees are set to reflect program costs. 

fines generally reflect the relative seriousness of 

crimes that do not involve imprisonment. 

Court costs are set as a uniform charge for a given 

level of court, no matter how serious the offense 

or the services received. 

As an example of what these differences can mean, in 

1989, the Georgia General Assembly passed a 10 percent 

fine add-on for the construction of county jails. This resulted in a severe impact on certain offenders rather than 

a modest one on all offenders because ability to pay would 

be reflected only to the degree that judges considered it 

when they set fines. In contrast, a similar need in Mississippi to raise funds for 1,000 new prison beds was met by 

158 U.S. Advisory Commission on Intergovernmental Relations 
1987 legislation to charge each person convicted of a misdemeanor $25 and those convicted of a felony $50, while 

professional bail bondsmen are charged $20 or 2 percent of 

the bond, whichever is greater.I8 The Mississippi approach, 

although broad-based and therefore more modest than raising the Same amount from fewer payees, has no relation to 

ability to pay, seriousness of the offense, or court time. 

Ability to pay is a significant issue in criminal justice 

budgeting because it affects the ability to collect. It also 

relates to the fact that a $1,000 fine does not represent the 

same degree of punishment to a white-collar professional 

as it does to fast-food employee. As noted in Chapter 3, 

day fines (units of punishment multiplied by a computation of the offender’s daily salary), which have been successfully used in Europe and piloted in New York City using 

a NIJ grant, offer a way to make punishment commensurate with the ability to pay. The New York pilot also indicated that day fines offer justification for increasing statutory limits on fines and, thus, the amount collected. 

Finally, although a fine is used as a form of punishment for the individual offender who is paying it, there is 

no reason that fine revenues cannot be earmarked for 

treatment, prevention, or rehabilitation of others. New 

Jersey enacted a mandatory “Drug Enforcement and Demand Reduction” fine for anyone convicted of a drug offense. The penalties start at $500 for simple possession 

and range up to $3,000, and the proceeds are earmarked 

for demand-reduction programs. New Jersey has raised an 

average of $9 million per year for prevention, education, 

and public awareness initiatives through these fines.19 The 

Arizona legislature has earmarked numerous fines and 

fine add-ons for specific programs, such as animal ordinance violations or $30 additional on DUI convictions for 

emergency medical services. One-third of the fines of the 

Tucson city court are earmarked for other agencies, causing its chief court administrative officer to express concern 

that other court considerations were being consumed by a 

“cash register climate.” A sentencing enforcement division 

was formed with the dual purpose of assuring collection plus 

maintaining community respect for court orders?O 

Restitution 

Requiring criminals to pay their victims has strong 

public support.*l Therefore, it is important to note that 

restitution hasbeen placed next to last in this discussion of 

criminal justice revenues not because of extraordinary collection problems or because of low total revenue poten- tial, but because it is not a direct source of government 

revenue. Restitution typically is paid to an individual. 

Restitution can result in significant indirect government cost savings, however. Especially for low-income victims of crime, restitution-received from either the person who victimized them or a central pool-can keep them 

from needing increased welfare assistance or even becoming homeless because they could not replace stolen money 

or missed work due to injuries. In a 1986 survey of 79,000 

probationers, 24 percent of the violent offenders and 50 

percent of the property offenders were ordered to pay restitution. While the average amount ordered was $3,368, only 

half of the offenders were ordered to pay more than $a?* 

In other instances where the effect on a particular victim is not direct, the court may order community service as 

a form of restitution. The degree to which government 

budgets benefit from such community service restitution 

depends directly on the degree of cooperation between 

the probation department or the jail and other general 

government agencies, which was emphasized in Chapter 

4. When supervision, well defined job assignments, and 

training are worked out, many needed government services can be provided at significant cost savings. 

For parolees or probationers without funds, the Los 

Angeles County Department of Probation proposal to establish a residential Restitution Center provides a productive alternative. The government bears the cost of board 

and room, but these costs are low because the facility is 

low security. In trade, the offender is employed and avoids 

the possibility of jail for not meeting the court’s order. 

One-third of the money earned by the probationer goes to 

the restitution center for its operation, one-third for restitution, and one-third for family obligations or for payment to 

the probationer on successful completion of the 

Drug Assets 

Since Revolutionary times, states have provided for 

the forfeiture of property derived from or used to commit 

crime, and nearly every state has an asset forfeiture stat- 

~te.2~ Although asset seizures can be used with other types 

of criminal activity, the large sums of money involved in 

the drug trade have resulted in increasingly aggressive use 

of civil forfeiture proceedings. 

However, forfeiture proceedings are highly technical. 

They depend on sophisticated, well-coordinated investigative work, on how the assets are handled and marketed, 

and on how the proceeds are allocated in joint operations. 

Further, asset forfeiture funds can vary considerably from 

year toyear, even for states and large local jurisdictions. In 

contrast, fines for drug convictions and fees for drug treatment and testing will reflect a more stable relation between drug activity and the need to fund prevention and 

treatment programs. Therefore, although general government officials may want to encourage the use of asset seizures and remove any statutory impediments, the revenue 

is seldom a stable source of support for operating budgets. 

In brief, under drug asset seizures, any asset can be 

seized that: 

rn Was used or intended for use to facilitate the sale 

of a controlled substance (e.g., cars, boats, 

planes) or 

Is found traceable to an exchange for a controlled 

substance (e.g., houses, jewelry, real estate, art, 

financial instruments) or 

Has been received in exchange for controlled 

substances (e.g., cash, bank accounts). 

The property is taken through acivil action, which is significantly different from a criminal trial. In a civil trial, the 

state need only prove by a preponderance of evidencenot beyond a reasonable doubt-that the property was related to drug dealing. The property need not be related to 

rn 

rn 

U.S. Advisory Commission on Intergovernmental Relations 159 
a specific drug deal or to its owner or purchaser being 

found guilty of drug dealing. In a civil trial, the owner of 

the property must testify or forfeit the property. 

Given the less favorable rules from a defendant’s 

point of view in a civil proceeding, it is not unusual for a 

drug dealer not to contest a seizure that is readily trace- able to drugs. Knowing that forfeiture can be used, it also 

is not unusual for a major dealer to shield assets in out-ofstate holdings. Therefore, police, sheriff’s deputies, and 

prosecutors must be well trained and well informed regarding what property is to be seized and how it is to be 

taken. Nevertheless, a 1990 survey of law enforcement 

agencies revealed that most did not have a formal asset 

forfeiture program and much was done on an ad hoc basis. 

Of the training that was conducted, law enforcement administered 57 percent of the programs and prosecution 42 

percent; 22 percent of all programs were administered on 

a multijurisdictional 

In part because of the complexity of successful drug 

forfeiture, the federal government has handled most of 

the activity. However, two significant intergovernmental 

concerns could be served by states and localities gaining 

the competence to handle forfeiture proceedings. First, 

although the federal government has taken the lead with 

major drug dealers-and will probably continue to do somany believe that the federal courts should not be bogged 

down with lesser cases. 

The second intergovernmental concern is that multiagency involvement can raise disputes over the allocation 

of the proceeds. Under the US. attorney general’s guide- lines, distribution does not depend directly on where the 

case is tried but on the time and effort expended by each 

agency; whether the involvement was fortuitous or the result of effective investigation; whether the agency identified 

the assets for seizure; and whether the agency could have 

proceeded on its own.26 It is obvious that, while these guidelines attempt to give fair consideration to a number of relevant factms, their veq muli~p%ci~ presents ample opportunity for disagreement and delay in revenue distribution. 

Increasing the competence of state and local authorities to expand their use of asset seizure, with or without 

the involvement of federal agents in joint investigations, 

does not mean that there will not be a major need for intergovernmental cooperation. Regional cooperation is 

particularly important to retrieve as many assets as possible, 

not just for the potential revenue but, more importantly, 

for seriously disrupting the drug dealing operations. In addition, states may be ready to assume a stronger role in 

training local prosecutors, police, and sheriff’s deputies 

than they were in the initial years of asset seizures. As of 

1990, approximately 38 percent of training has been provided by the federal government and 32 percent provided 

by private sources, which were principally professional as- sociations, such as the National Association of Attorneys 

General and the National District Attorneys’ Association. 

Only 21 percent of the training has been provided by states 

and 9 percent has been conducted by localities?’ 

There are other potential sources of revenue related 

to drug arrests, specifically, back income taxes and tax 

stamps. Under the civil asset seizure process described 

above, if the owner contests the seizure by claiming that 

the property was purchased with cash obtained from legal 

transactions, IRS and the state income tax department 

should be informed immediately. Not only is it another 

means to convict the individual on a criminal charge-Al 

Capone was imprisoned for income tax evasion-but taxes 

can be collected on assets that the state is not able to prove 

are drug related.2s 

In addition, as of January 1991,22 states required tax 

stamps on illegal drugs.B These states do not actually ex- pect the dealers to pay the tax. Their focus is on being able 

to exact heavy fines for the tax not having been paid on 

whomever is caught possessing or selling the drugs. As 

with any other felonious tax avoidance, assets of any kind 

may be seized to pay the fines and taxes due, without hav- ing to determine they were purchased with drug trade 

profits. This approach was greeted initially with some 

skepticism, but the U.S. Supreme Court has upheld the 

taxation of illegal gains, most notably in James v. United 

States, a 1961 case involving embezzled funds. To answer 

the charge that it is unconstitutional to compel persons to 

testify against themselves by registering an illegal activity, 

most states provide for anonymity if a person should apply 

for tax stamps. 

Collection of these fines and taxes may lag if local po- lice and sheriff’s deputies do not see value in a drug tax 

stamp law as an additional means to weaken drug syndi- cates. As with fees and fines, however, distribution of rev- enue can then become a way to increase collections. For 

example, the Kansas drug tax stamp law was largely un- used until a change was made in March 1990 to send half 

the proceeds to the county where the arrest was made 

rather than all of it going into state’s general fund. Collec- tions went up by a factor of 14.30 

Summary 

For soundbudgeting, genetal gwemment elected of- ficials need a realistic picture of the money-raising potential of each source of criminal justice revenue. In general, 

the less serious the class of crime involved, the more 

stable the source of revenue and, therefore, the more the 

revenue can be used to defray program costs. Revenues 

also can be increased by legislation that gives the court the 

flexibility to relate fines, fees, and charges to ability to pay. 

The amount of revenue raised is increased further if 

criminal justice personnel believe that collecting the 

money enhances their mission. The benefit can be as narrow as the funds simply being budgeted to the agency collecting them. 

Fortunately, it is also common for the revenue collection itself to augment the effect of other aspects of criminal justice programs. Establishing sound work programs 

for real wages can provide the means for real pay-back by 

the offender for criminal acts. Fees can expand treatment 

opportunities. Fines can be earmarked fOr prevention programs. Multifaceted approaches to capturing drug profits 

sometimes can do as much to break up a drug ring as con- victing individuals involved in its operation. These examples underscore the potential available for general government officials working with criminal justice program 

160 U.S. Advisory Commission on Intergovernmental Relations 
managers to ensure that budget decisions that attempt to 

increase criminal justice revenues will augment -not 

overwhelm-program effectiveness. 

Most elected officials are aware that the public’s 

sense of justice is satisfied when revenues are acquired 

from offenders and from criminal activity. The public 

regards this as holding lawbreakers accountable for the 

effects of their crimes. Therefore, it is important, politically, for general government elected officials to be given information that will allow them to report revenues 

in relation to the costs of associated criminal justiceprograms. They can, thus, be responsive to the public’s 

sense of justice. Equally important, they will be in a position to explain the limits of such revenue generation 

and justify the need for tax support. 

COST SAMNGS 

Before turning to the public to meet budget needs, 

however, most general government elected officials want 

to satisfy themselves that cost savings are being fully utilized to meet escalating criminal justice demands. This 

section examines various avenues of assumed and potential savings applicable to criminal justice budgets: operational improvements, privatization, intergovernmental 

resource sharing, and intergovernmental cooperation. 

Operational Improvements 

Operational improvements that lead to program improvements have been mentioned throughout the previous chapters. Unfortunately, examples of operational 

improvements that lead to immediate cost savings are 

rare. General government officials trying to find operational savings to deal with a current year budget shortfall 

will find little to go on. It usually costs money to save 

money. For example, to increase a prison’s holding capacity, structural changes must be funded; to speed parole reviews and free bedspace, more personnel or enhanced 

computerization may be needed; or to move cases and reduce jail time, forensic laboratory staffing and equipment 

increases may be essential. 

Conversely, there are many examples of cost cuts that 

cost money. For example, in the face of a 10 percent local 

budget shortfall, one county decided that it could not afford $30,000 to hire a program administrator for a supervised release program for misdemeanants, even though 

the program would save about $20,000 annually in joint 

state and county funds on each released inmate’s board 

and 

Although general government elected officials are 

apt to hear the same lament from all government programs, negative results from criminal justice cuts often are 

amplified because sustained growth has removed excess 

operating capacity and because of security dictates. Consequently, refusing to fund additional positions or space 

can lead to a disturbance or an incident that will require 

the unavoidable expenditure of overtime or a liability 

settlement. 

Just the threat of danger often makes it difficult for 

general government officials to carry out normal budget 

oversight. Elected officials report that they frequently feel 

intimidated when they question expendit~res.~~ For example, Illinois state elected officials must deal with a public 

employee union’s claim that the death of six correctional 

officers in the last seven years was the direct result of personnel funding failing to keep pace with population increases at medium security prisons. “The reality of shortstaffing and overcrowding is death. It’s as simple as that,” 

according to employee representative^.^^ 

It is important, therefore, that formal procedures be 

established to determine acceptable staffing levels. Such a 

review not only would include physical analysis of prisons, 

jails, and juvenile facilities, it also would include analysis 

of how personnel spend their time: How much of a probation officer’s time is spent on paperwork rather than offender contact? How much of a police officer’s/sheriff 

deputy’s time is spent on VIP assignments or waiting in 

court for cases to be heard? 

An analysis of turnover and staff vacancies is also important. Although high turnover produces short-term cost 

savings during the months positions remain vacant and 

from lower entering salaries for less experienced replacement employees, responsible budgeting dictates that elected 

general government officials be informed fully of the results 

of turnover or the failure to maintain staffing levels. 

Finally, as noted in Chapter 4, one of the most perplexing issues general government officials face in funding 

policing and corrections is determining program effectiveness. It is unrealistic to assume that all programs are 

successful and cost effective but, as noted, lack of funding 

for creditable evaluation has been endemic. Both program 

mangers and general government budget officials have a 

vested interest in determining whether the target populations have been appropriately selected for the program, 

whether comparable control groups are being used to determine success, whether a valid baseline can established 

for comparison, and how success is defined. 

However, even when good research provides answers 

to these questions, general government officials seldom 

realize excess revenue. Slowing the rate of increased 

spending seems to be the best that can be expected, as the 

Florida focus study (page 162) demonstrates. Although 

this focus could have been presented in the chapters discussing alternatives, it is presented under this discussion 

of budgeting because it represents one of the most extensive analyses to date of cost-benefits. 

Operational cost savings are possible in the criminal 

justice system, but many savings are related to creating a 

system approach to needs and impacts. Budget session decrees can be used to get the attention of the independent 

criminal justice officials that general government officials 

have a responsibility to enforce fiscal accountability. However, responsible budgeting to maximize cost savings and 

program effectiveness require planning and coordination, 

which are the subject of the next chapter. 

U.S. Advisory Commission on Intergovernmental Relations 161 
Focus 

Evaluation of Florida’s Intensive Community Supervision Program 

Florida’s ongoing Community Control Program 

(FCCP) provided intensive supervision (ISP) for more 

than 60,000 offenders between late 1983 and 1988, mak- ing it the largest ISP program in the nation. The program 

included a minimum of 28 contacts a month, drug and alcohol screening, and sometimes involved house arrest or 

electronic surveillance. Probation officer caseloads were 

from 20 to 25 offenders. Because of the size of the program, a better than normal analysis of its success was 

conducted. 

Target Population. The original target was to divert 

offenders from prison sentences to relieve overcrowd- ing. However, only 12 percent of a 1987 FCCP participant sample were downgrades from a recommendation 

for imprisonment, while 31 percent were upgrades from 

sentencing guideline recommendations for regular probation. Thus, the policy goal of controlling prison costs 

was overridden by increased probation costs due to net 

widening. 

Control Group Success Comparisons. Approximately 20 percent of FCCP participants were arrested 

for new offenses compared to 24 percent of a matched 

group who had served time in prison. However, there 

was no significant difference for the rearrest rates of a 

different set of FCCP offenders who were matched with 

offenders who received a minor jail sentence along with 

probation or with offenders who had been sentenced 

only to regular probation. 

Thus, while the increased cost of prison is not justi- fied as a deterrent for offenders with similar backgrounds, 

neither is the increased cost of intensive probation con- trol. In all three comparisons, offenders with similar 

backgrounds did as well or better in the less costly, less 

restrictive alternative. For those who could have been 

placed on regular probation, the more costly alternative 

of intensive probation did not increase success by reducing the rate of recidivism. For those who could have 

been placed in prison, the less costly alternative of in- tensive supervision was, in fact, more successful in reducing the rate of recidivism. 

Valid Baseline Cost Comparisons. After FCCP was 

established, numerous criminal justice system changes 

took place: sentencing guidelines were implemented, 

the crime rate increased considerably, regular probation caseloads grew from 80 to more than 110, and emergency releases of state prisoners became necessary to 

meet court-imposed population caps. Furthermore, 

FCCP itself altered the conditions of probation so that 

valid violation comparisons were not possible. Because 

offenders were supervised much more closely, they 

were charged with technical violations of their probation conditions twice as often as regular probationers. 

Thus, it is impossible to compare baseline revocation 

rates or sentencing reductions, or realize actual cost 

savings versus simply documenting cost avoidance. 

Conclusion. Although the target population was 

compromised through net widening and it was not possible to meet rigorous research standards by freezing 

baseline conditions, the evaluation was able to document FCCP’s cost effectiveness. Using $14,250 as the 

annual cost of prison, the net cost avoidance was estimated to average almost $3,000 per case even with the 

high number of participants who could have been handled successfully in regular probation. 

This degree of cost saving is certainly not bad news 

for general government officials struggling with increas- ing correctional budgets. FCCP, even though compro- mised by significant net widening, saved costs without 

increasing crime. However, a program like FCCP will 

not actually reduce budgets-unless government also 

can control the other factors leading to increased crime, 

arrests, and tougher sentences. 

Source: National Council on Crime and Delinquency, Evaluation of the Florida Comniunity Control Program (San Francisco, Ma! 

1990). 

Privatization In fact, as noted in discussing criminal justice revenues, there are only a few urograms where cost to the uubDuring the 1980s, the rapidly increasing costs of criminal justice, the need for expanded capacity, and the posi- tive climate for turning a wide range of government services over to the private sector led many states and 

counties to consider the privatization of correctional facilities. Budget debates focused on speed and potential cost 

savings, while operational concerns focused on liability 

and product delivery. However, at times, some citizens 

seemed to assume, “If business will take care of all these 

criminals, we won’t have to pay.” 

lic can be eliminaied. F& tg vast majority of pot&tial 

programs, it appears to be more a philosophical decision 

than a cost-cutting decision as to whether most services 

will be provided by private or public employees. 

Criminal justice services that are provided routinely 

by the private sector, without any use of public funds, include private security personnel-who outnumber publicly employed police officers-and substance abuse treat- ment for offenders with the ability to pay and the desire to 

use a private provider. Some states, such as Oregon, have 

162 U.S. Advisory Commission on Intergovernmental Relations 
begun contracting with private agencies to collect fines, 

restitution, and court costs for a percentage of the revenue ~ollected.~~In addition, much of the function of a bail 

bondsman is carried out as a private sector activity; however, some localities find that bail bondsmen’s lack of effort 

to bring in those who fail to appear shifts costs back to public law enforcement. 

In all other instances, private profit depends on payment of public tax dollars. The issue, then, is: Can the private sector do the job cheaper, faster, and/or better than 

the public sector? The last goal has been the easiest to determine. Several functions are contracted out routinely 

because the private sector can do the job better than trying 

to develop or employ the expertise within the criminal justice sector, for example, prison and jail construction, 

health and psychological services, drug testing laboratory 

analysis, and administrative systems development, including off-the-shelf programs for computer-assisted dispatch, 

legal research, and inmate records. 

In contracting, one concern that is more important in 

criminal justice than in other areas of public budgeting is 

whether there are liability issues that should override awarding contracts to the lowest bidder. For example, the cheapest 

drug testing system may be a more costly decision in the long 

run if,the test results are not accepted as reliable in court. 

Many observers consider that the needed expertise in 

the development of prison and jail industries also lies in 

the private sector. This expertise can be tapped by hiring 

managers from the outside or by soliciting firms, through 

competitive bidding, to open branch operations inside a 

penal institution, or to provide marketing services. Competitive bidding is an effective means to answer business 

concerns about unfair competition. 

In addition, adult and juvenile correctional agencies 

have a long tradition of contracting with private agencies, 

both nonprofit and for-profit, to provide community treatment services. These contracts are based largely on thebelief that the programs will be better because they provide 

the opportunity for offenders to reintegrate into the community while still under penal control. They also may provide sophisticated treatment for individual needs, which 

are not being met in the general penal populations. However, use of private facilities to provide enhanced treatment tends to reflect the jurisdiction’s ability to pay, as indicated by the relatively high proportion of white juveniles 

in private facilities shown in Figure 7-1. 

It is this traditional use of private providers for special 

populations that represents an apt description of the status of private sector operation of jails and prisons at the 

Figure 7-1 

Juveniles in Custody by Race, 1989 

(1-day count rates/100,000 in public and private facilities) 

1000 949.8 

80; 

I 

0 

238 

- 

All Facilities 

117.8 

L 

Whites 

I Blacks 

Hispanics 

652.1 Other 

Whites 

I Blacks 

Hispanics 

297.7 

Public Facilities Private Facilities 

Source: U.S. Department of Commerce, Bureau of the Census, “1989 Census of Public and Private Juvenile Detention, Correctional 

and Shelter Facilities,” unpublished. 

U.S. Advisory Commission on Intergovernmental Relations 163 
beginning of the 1990s. During the 1980s, several private 

for-profit corporations were formed to build and run prisons and jails. However, most privatized operations have 

not gone beyond special populations, and most of the financial success of these private firms has come from financing construction. 

Texas has taken the greatest initiative in privatization. 

Of the ten new prisons coming on-line at the end of the 

1980s, four were built and are to be run by the private sector. These 500-bed facilities were opened in late 1989 and 

were rated in the first year of operation as being “just fair’’ 

in meeting the terms of the contract.35 

Major Issues 

The major issues involved in whether cost or time savings can be achieved through privatization of correctional facilities are: 

Liability-Can government contract away its liability or is it ultimately responsible for injuries? 

Standards- Are private operators prepared to 

conform to court-ordered standards and to the 

security concerns of the community? 

Personnel-With a large portion of correctional 

budgets being driven by personnel costs, can adequate savings be realized solely through more efficiently designed facilities, or will lower wages cause 

greater turnover and less screening of personnel? 

Competition-Is there an adequate competitive 

bidding climate to keep cost low when the contract is rebid? Will the contracts of current employees allow them to work for a competitor? 

Financing-Does the government have financing 

alternatives for constructing the facility? What is 

the current dollar cost of any financing alternative? 

Efficiency- Can the private sector respond more 

readily to program needs and construction timetables because they are unhampered by legislative budget procedures or bidding requirements? 

Full Cost Accounting-In making cost comparisons, have all government costs been fully accounted for, including personnel benefits, retirement fund obligations, administrative support 

services if the service is provided by public employees, and the governmental cost of security 

oversight and contract administration if it is contracted out? 

The import of these questions is that public officials 

who are considering privatization must be prepared to enter sophisticated cost analyses and complex negotiations. 

A detailed request for proposal (RFP) must be prepared 

and experienced advice sought in developing the terms of 

the contract. Negotiations should include spelling out 

what standards are to be achieved (for example, some companies agree to achieve ACA accreditation), how ongoing 

security audits are to be conducted, and the obligations of 

the provider to respond without expensive change orders. 

The heavy emphasis on security concerns helps explain why, thus far, most privatization initiatives have 

been with specialized populations, such as those about to 

be released, federal detainees being held for trial, and 

low-security offenders. Furthermore, it has been reported 

that no private prison operation has shown a profit to 

date36 and that the profit margins of private correctional 

corporations are beginning to fall because they were initially driven by fees for financing37 Finally, localities willing to pay high fees to house their prisoners because they 

are under court order often regard this as a short-term 

emergency option. Many have found it cheaper in the long 

run to build and operate their own facilitie~.~~ 

These issues of security and long-term profitability 

seem to indicate that the role of the private sector in operating penal facilities will not grow to cover a very signifi- cant proportion of jail and prison system operations. The 

privatization movement of the 198Os, however, has introduced a wider range of options for general government of- ficials, especially in providing a safety valve to comply with 

court-ordered population ceilings. Most importantly, it 

also has provided a focus to demand that public penal ad- ministrators justify expenditures and to examine inefficient 

requirements in general government administration. 

Intergovernmental Operational Cooperation 

and Resource Sharing 

Another way to reduce budget demands while meet- ing criminal justice needs is to share resources. Some of 

the benefits from intergovernmental cooperative arrangements between agencies with parallel criminal justice 

functions include: 

General government budgets benefit when expensive law enforcement equipment and experienced investigative personnel are shared. 

Public safety is enhanced as integrated data banks 

are established to respond to the mobility of some 

of the most serious criminals and criminal activity. 

Through cooperation, regional jails can expand 

correctional program options while minimizing 

siting controversies. 

Even prosecutors and judges are realizing the 

need for greater communication as federal criminal code changes create the potential for greater 

selectivity in determining jurisdiction. 

The following subsections give a brief summary of the 

types of law enforcement and correctional cooperation existing between local, state, and federal agencies. 

However, in considering the potential for increased 

intergovernmental cooperation, general government officials need to be aware of two areas of potential controversy. First, operational controversies over how priorities are 

determined and who is in charge can undercut program 

initiatives. Although general government officials seldom 

will have a pivotal role in resolving these operational dis164 U.S. Advisory Commission on Intergovernmental Relations 
putes, they do play a key role in the second arena of concern: federalism. The United States constitutional structure provides that criminal justice is largely a state 

function; most states have extended this concept of noncentralization to enshrine law enforcement as a local 

function. “Cooperative” arrangements that turn into dictates by the better financed, equipped, or simply larger 

unit of government can undermine this constitutional concept. It is general government elected officials who must be 

the ultimate arbitrators of the balance between preserving 

federalism and seeking efficiency and cost savings. 

Law Enforcement Intergovernmental Cooperation 

The large number of law enforcement agencies ensures community responsiveness; it also creates significant 

potential for greater effectiveness through increased 

coordination. In 1986, there were 

11,743 municipal police departments; 

79 county police departments; 

1,819 township police departments; 

3,080 sheriff departments, most of which have 

police functions; 

965 special police agencies, including park police, harbor patrols, transit police, and campus security units; 

51 state police departments; and 

more than 50 federal law enforcement agencies.39 

More than half of the local agencies had fewer than 10 

sworn officers. 

Although the potential has always existed, several 

factors have been operating to bring about more cooperation in the 1990s. Organized crime is highly mobile and so- phisticated, especially the drug trade and syndicates involving vehicle theft and financial fraud. Computerization 

has made greater cooperation between federal, state, local, and international law enforcement communities possible. Drug forfeiture funds have provided an attractive incentive for joint investigations. Budget pressures also 

have meant that agencies have had to pursue shared use of 

highly sophisticated investigative equipment or go without. 

Municipal-County Law Enforcement Cooperation. 

Municipal-county cooperation focuses on shared equipment and investigative backup. For example, Allegheny 

County, Pennsylvania, operates a crime lab that is used by 

municipal departments. The county police supply backup 

investigative services to most of the municipalities in the 

county on request. St. Louis County, Missouri, has technical joint ventures between its municipal departments and 

the county police for the development of a 911 system, online access for police dispatchers to state and FBI data bases, 

and a“‘Code 1W system that provides rapid deployment of 

officers from multiple jurisdictions when needed!’ 

Traditional cooperation,. which is an outgrowth of 

shared jurisdiction, also should be noted. It is common for 

a sheriff to deputize municipal police departments, giving 

them authority throughout the county. The power of a local law enforcement officer to make an arrest in another 

jurisdiction also can be provided for by state legislation, 

extending the authority of law enforcement officers to any 

part of the county in which the officer is employed. In contrast, it is not typical for state police or county police and 

sheriff’s deputies to operate in big cities, except for interstate highway patrols or on a special cooperative investigation. Of course, arrests always may be made across jurisdictional lines in hot pursuit or under the power of citizen 

arrest, which does not include the power to search. 

State-Local Law Enforcement Cooperation. State-local 

cooperation typically is based on collaborative efforts and 

on support technology. Emphasis on illicit drug enforcement in the late 1980s increased collaboration significantly. 

Of the more than 11,000 local police and sheriff’s departments having primary responsibility for drug enforcement, 55 percent were participating in multiagency drug 

enforcement task forces in 1990.4l Many states have included experienced prosecutors in these multijurisdictional task forces to help ensure that the police procedures used and evidence gained will stand up in court. 

Although the proportion of large agencies involved in 

multiagency task forces is over 80 percent, half of all the 

local police officers assigned to task forces nationwide are 

employed by small departments serving populations of 

less than 25,000.42 The high number of small departments 

involved reflects the fact that efforts to clamp down on the 

drug trade in urban areas served to displace some criminal 

activity to rural areas. It is possible, however, that the 

emergence of drug task forces may serve as a catalyst for 

permanent cooperative arrangements, perhaps leading to 

consolidation of small police and sheriff’s forces. For example, based on targeted drug enforcement experience, 

Michigan formed 23 multijurisdictional cooperative general law enforcement teams made up of state troopers, 

county sheriffs, and municipal police officers. 

In addition to collaboration to fight the drug trade and 

other syndicated crime activities, computerization also has 

led to increased coordination between state and local law 

enforcement agencies. This has been particularly true in 

the development of Automated Fingerprint Identification 

Systems (AFIS). AFIS enables a computer to search 

through hundreds of thousands of fingerprints in less than 

ten minutes and provide a selected number that are the 

closest match for conclusive identification by the technician. It represents a major revolution in criminal investigative work because manual searches are not feasible 

without the name of a suspect. Since the mid-l980s, 35 

states have, or are in the process of establishing an AFIS 

system and many provide statewide access. For example, 

the Virginia system has 20 regional terminals that can receive fingerprints from local law enforcement agencies for 

virtually instantaneous identification. The state system also 

is adding prints from local files to expand the data bank. 

State-State Law Enforcement Cooperation. Law enforcement coordination also takes place between states. 

For example, the Northwest Tri-State Narcotics Law Enforcement Council was initiated by the governors of Oregon, Washington, and Idaho in 1988. It consists of the state 

U.S. Advisory Commission on Intergovernmental Relations 165 
police superintendents and coordinates efforts to investigate and shut down drug labs, stop drug shipments, and reduce marijuana c~ltivation.~~ Other multistate efforts 

have conducted simultaneous drug searches on interstate 

routes or border crossings. 

Federal- State-Local Law Enforcement Cooperation. 

Federal law enforcement resource sharing is of the same 

nature as state/local initiatives. Since 1924, the FBI has 

been authorized by the Congress to collect and disseminate fingerprint cards and arrest record information. At 

this time, however, it does not have AFIS capability, so 

that its response to the requests it receives from over 

62,000 agencies may not be able to penetrate aliases, and 

the turnaround time is commonly two months. Nevertheless, it still remains the principal source of information for 

offenders who have multistate records. In addition, the 

National Crime Information Center (NCIC) maintains a 

computerized filing system of 12 separate data bases that 

include stolen and recovered guns, stolen license plates, 

stolen securities, wanted persons, and missing persons. 

The FBI also maintains one of the world’s most comprehensive crime laboratories and shares its services with 

states and localities, in the same way that states and counties provided forensic services to police forces within their 

boundaries. However, the FBI screens requests from state 

and local agencies carefully and returns any it determines 

could be performed satisfactorily by the contributing laboratory or jurisdiction. 

INTERPOLis a law enforcement function within the 

U.S. attorney general’s office that brings together police 

in all units of government with police in other countries. 

Operations were decentralized to state liaison offices in 

the 1980s, largely in response to increased activity of state 

and local police and sheriffs’ departments with international crime and foreign nationals. Decentralization has 

tapped the growing capabilities of state information systems to assist international investigative agencies, while 

providing states the opportunity to obtain information on 

international crime and its impact on their state. 

Beginning in 1981, Law Enforcement Coordinating 

Committees (LECC) have been established in each federal judicial district to serve as a focus for improved “cooperation and coordination between and among federal, state, 

and local agencies.” LECCs are often cochaired by the 

state’s attorney general or other state official and the U.S. 

attorney, and now exist in each of the 93 federal judicial 

districts. Many use subcommittees to deal with issues such 

as white-collar crime, toxic waste, Indian affairs, drug offenses, child pornography, asset forfeiture, violent crime, 

and victim/witness i~sues.4~ 

Paralleling state initiatives, the U.S. Department of 

Justice also has established task forces of federal, state, 

and local prosecutors and investigators to coordinate the 

investigation and prosecution of highly sophisticated and 

diversified drug-related and money-laundering enterprises. These task forces coordinate efforts with and 

among the following federal agencies and state and local 

law enforcement agencies: DEA (Drug Enforcement Administration), Customs, BATF (Bureau of Alcohol, TObacco, and Firearms), INS (Immigration and Naturalization Service), FBI, IRS, Coast Guard, U.S. Marshals 

Service, Bx Division and Criminal Division of the Department of Justice, and U.S. attorneys. By 1988, more than 

700 multijurisdictional task forces and drug units had been 

established in nearly every state?’ 

In addition, under the supremacy clause of the federal 

Constitution, it has been held that state officers have not 

only the power but also the duty to enforce federal Criminal 

law. Consequently, informal coordination between federal 

and state law enforcement officials to try arrests made by local police and sheriffs’ departments in federal court has 

grown, as the Congress has passed tougher Criminal penalties than those that exist in many states for similar offenses. 

Finally, there is a long history of federal/state/local 

agreements for law enforcement on federal lands and enclaves. There are areas, such as military bases and Indian 

reservations, where the federal government has required 

that the state cede exclusive jurisdiction to them, which 

means that the state cannot enforce its laws on these 

lands. However, in most of these instances, the federal 

government itself enforces the state’s laws under the Asimilative Crimes Act of 1948, which incorporates by reference the state criminal law of the surrounding state in 

force at the time of the offense. On the other hand, for 

parks and other public lands, the federal government typically has entered into agreements with state officials for 

concurrent jurisdiction, which gives local, state, andfedera1 officers full enforcement powers. There also are a few 

instances in which the state has retained its proprietary enforcement rights and the federal government has no power 

to enforce state laws, and some instances of partial jurisdiction in which the federal government has only the right to 

enforce certain state laws, such as violent crimes, while the 

local authorities enforce lesser offenses, such as traffic laws. 

Although the jurisdictional status of each federal enclave has its own history, typically, budget considerations 

cause local officials to try to cede law enforcement authority rather than retain it. If a case is tried as a local offense, 

all the associated jail and court costs will be borne by the 

locality. If federal officers make arrests under federal 

charges, the locality is spared these costs. 

Intergovernmental Cooperation 

among Correctional Agencies 

Administrative cooperation between penal authorities focuses principally on prisoner exchanges and joint facilities, although initiatives to facilitate educational exchanges will be discussed later. In general, relations 

between federal authorities and county jail or state prison 

administrators are better than between the states and 

their counties. This is due to the fact that per diem payments are defined by contract and frequently are higher 

than any state payment. Also, federal prisoners are less 

apt to be violent. 

CountyCounty Correctional Cooperation. Countycounty cooperation has increased with jail overcrowding. 

Siting any correctional facility is never easy, but state or 

federal authorities, at least, usually have choices generated by depressed communities competing for employment. Local governments are essentially landlocked with166 US. Advisory Commisslon on Intergovernmental Relations 
in the confines of their community. Therefore, some local 

governments have joined together to build and operate 

jails and detention facilities and to avoid siting the facility 

in the most densely populated jurisdictions. Other small 

units of government have joined together as a way to 

achieve economies of scale and professionalism or to separate female and juvenile populations from incarcerated 

adult males (often in response to federal and/or state 

mandates or a court decision). 

Formal agreements are necessary to define the basis 

of cost sharing, priority allocation of beds, and the responsibility of each local sheriff. In addition, establishing a regional jail for rural counties to replace existing antiquated 

facilities-rather than in addition to local jails as would be 

the case in an urban setting-may meet great resistance 

from rural sheriffs who fear losing too large a chunk of 

their responsibilities. 

CountpState Correctional Cooperation. Countystate cooperation exists, but it often is overshadowed by 

disputes over timely removal of state-sentenced prisoners 

from overcrowded local jails. However, even in overcrowded systems, states have established protocols to remove prisoners in the order requested by local sheriffsand 

jail administrators. These agreements provide relief to 

jails in handling disruptive prisoners or those in need of 

medical care, which save jails the cost of trying to provide 

for special populations. 

State-State Correctional Cooperation. Interstate 

cooperative agreements have existed for several decades 

to cover both the transfer of prisoners and the supervision 

of probationers and parolees. The Compact for the Supervision of Parolees and Probationers, to which all states, 

Puerto Rico, and the Virgin Islands are signatories, was 

initiated in 1934. However, in 1987 at the urging of several 

associations representing probation and parole administrators and officers, the National Institute of Corrections 

(NIC) funded joint action to tighten control over the 

movement and supervision of offenders. A compact also 

exists between 47 states and the District of Columbia to ex- change inmates, often one-for-one. In 1989,36 agencies received 712 inmates, and 37 agencies sent 1,534 

Federal-Local Correctional Cooperation. Federal /local cooperation has been strong, historically, because federal prison facilities are widely dispersed and are not convenient for holding people awaiting federal trial. Therefore, 

local jails hold approximately 75 percent of the federal detainees for the U.S. Marshals Service under negotiated intergovernmental agreements in each of the 50 states. The 

average per diem payment for FT 1989 was $41.45, with rural 

jails receiving less than large metropolitan jails. 

In the past, this was welcomed income; however, 

crowding has made housing federal prisoners a low priority. In response, the Marshals Service has initiated a Cooperative Agreement Program to help state and local governments expand and/or construct new facilities in 

exchange for a contract for a designated number of beds. 

In 1983, only $26 million in federal funds went to constructing local jails; by 1990, over $94 million was provided 

to 141 local detention facilities. In addition, excess federal 

equipment is funneled to local jails, although it remains 

the property of the Marshals Service. In general, this type 

of personal assistance, the high rate of per diem payment, 

the frequently nonviolent nature of the offenders, and the 

relatively small number of inmates involved have led to 

better relations between U.S. marshals and local jails than 

between the state and local jails. 

Federal-State Correctional Cooperation. Federal/ 

state administrative cooperation has allowed states to 

transfer inmates into federal facilities and allowed the 

federal Bureau of Prisons to use state facilities to protect 

selected federal inmates. Prisoners may be transferred 

from state to federal facilities as the result of a riot or a 

serious disciplinary problem, or because a convicted state 

offender cooperated with federal authorities and may be 

in danger if left in the state system. The bureau has statutory authority to board state prisoners in federal institutions on a contract basis. For example, states such as Vermont, which have no maximum security prison, send all 

their security risks to federal facilities. On August 1,1990, 

1,131 state prisoners, which represented 2 percent of the 

total federal sentenced population, were detained in various 

federal institutions through intergovernmental contracts.47 

There are two other areas in which the federal government cooperates directly with the states. In cases of an 

emergency, there is a 24-hour National Institute of Corrections response to identify sources of emergency supplies or provide professional help for hostage families. For 

example, temporary jail cells were transferred from Texas 

to a flooded Alabama locality and mattresses were transferred from New York to Pennsyl~ania.~~ 

In addition, under the National Drug Control Strategy, in 1990, federal departments were directed to canvass 

their property holdings for land that could be reported excess and suitable for prison construction. If appropriate 

and consistent with the provisions of the McKinney Act, 

amendments to the Federal Propeq Administration Services Act will then be proposed so that state and local governments needing a prison site receive special considerati0n.4~ Thus far, sites have been few in number and often 

located a good distance from areas of greatest need. 

Overcoming Barriers to Sharing Resources 

Establishing Priorities 

All of the cooperative agreements cited above look 

good on paper, but most face the problem of differing 

priorities. Often, the agency that needs assistance places a 

far higher priority on action than does the other agency. 

The drain on limited resources also can play a role. 

For example, many state program managers see AFIS 

technology primarily as an efficient central depository and 

retrieval system. Local police-sheriff investigators, however, quickly realized that they could save days wasted in 

tracking down false leads by requesting an AFIS check of 

latent crime scene prints as their first step. Furthermore, 

use of AFIS at jail intake is an effective means to penetrate aliases. 

U.S. Advisory Commission on Intergovernmental Relations 167 
The issue becomes how to set priorities for the use of 

a state resource for local resource-savings and increased 

effectiveness: Should all drug distribution arrests have 

priority? all sex crimes? all reported thefts above a certain 

dollar value? or should each local law enforcement agency 

be allocated a certain number of inquiries? The alternative to such priorities is for the state to fund increases in 

AFIS capacity and personnel to realize local law enforcement agency savings. 

Prisoner transfers also raise concerns that the receiving agency’s resources will be used to relieve the sending 

agency’s budget. This is why most prisoner transfers are 

reciprocal. In addition, the receiving agency takes on the 

public safety responsibility for the transferred offender. 

Security concerns, for example, contribute to the fact that 

it reportedly takes six months to transfer a probationer 

who is a resident of the District of Columbia, Virginia, or 

Maryland from the court where he or she is being sentenced to the control of the probation department where 

he or she is a resident. A complete investigation is done by 

the receiving probation department, which is then forwarded to the state, where it is acted on by the Interstate 

Compact Office?O 

Determining Who Is in Charge 

Lack of response caused by conflicting priorities is relatively easy to identify and measure. Solutions are, therefore, easy to define, even if lack of funds may make them 

difficult to carry out. Lack of effective coordination due to 

turf battles can be far more subtle and difficult to overcome. 

Specific concerns behind these turf battles include 

confidentiality of operations, establishing the chain of 

command over operational decisions, and methods of operation, in addition to concern about who gets public credit. Traditionally, local law enforcement hasbeen given deference. State law may give local officials arrest powers 

outside their jurisdiction, but inside their jurisdiction, they 

oversaw law enforcement activities. However, starting 

with Prohibition, through the enactment of RICO statutes, 

and now in the war on drugs, federal and state authorities 

have become increasingly aggressive about pursuing Criminal 

investigations without respect to jurisdictional borders. 

Even though joint efforts are camed out through formal agreements, local law enforcement officials still may 

chafe during the actual conduct of the operation. A local 

or state police department may have spent months or 

years investigating a case. Their work may be the reason 

the FBI became interested. However, when the FBI comes in, they usually make the actual arrests, in part because 

of the large sums they can use for drug buys, which they 

can command from federal forfeiture funds. Local officials may feel that they have been cut out because of security precautions surrounding the arrest or because they do 

not receive credit for their preliminary work. These feelings 

can be further intensified in the apportionment of drug assets-which are controlled by the federal arresting agentsbased on the contribution of each law enforcement agency’s 

work leading to the arrests. Finally, throughout the joint operation, there may be an undercurrent that federal or state 

authorities represent a “higher” level of law enforcement 

and, therefore, “higher” individual competence. 

At least half of the states have moved to reduce some 

of the specific elements of controversy by enacting their 

own RICO statutes. Most of these state laws are similar to 

the federal statute and they allow states, operating on 

their own or in concert with local officials, to seize illegally 

obtained profits and property and to target continuing op- erations rather than individual criminal acts. As noted under the discussion of forfeiture funds as a source of revenue, increased state and local law enforcement training in 

civil forfeiture procedures is needed. If it is provided, it 

should result in state and local officials being able to maintain more control in federal-state-local operations. 

Federalism and Intergovernmental Cooperation 

Historically, our system of criminal justice was based 

on fear of a centralized police power. The policing function was established as the most local function. The challenge today is to preserve that noncentralized concept 

while responding to budget pressures for greater efficiency and to the challenge of highly mobile criminal activity. 

As noted, in the last 60years, the Congress has greatly 

expanded the number of acts that can be prosecuted in 

federal courts. Legislation that passed both houses in 1991 

not only would add to this list but it would further enlarge 

the federal role through tougher sentencing, extension of 

the death penalty, creation of “drug emergency areas” and 

rural drug task forces, and federal operation of ten regional drug-treatment prisons and ten first-offender boot 

camps to be used for state offenders. 

These federal initiatives are being raised in this discussion of funding criminal justice rather than in a separate constitutional discussion because the driving force in 

the acceptance of an increased federal role in law enforcement by state and local authorities has been the opportunity to expand program capability while relieving budget 

pressures. Nevertheless, state and local elected officials 

may wish to consider whether the shift away from local 

control is worth the degree of funding relief provided. 

Little attention has been paid to this shift outside the 

federal court system. Not surprisingly, the federal judiciary’s concern is driven by increased caseloads, but it gives 

expression to issues that should be of concern to state and 

local officials. For example, the Federal Courts Study 

Committee Report contained the pointed observation that: 

One facet of the expansion of federal presence in 

the criminal area is the concomitant loss by the 

states of control over cases and investigations 

that historically would have been their own. . . . [I]n many cases, federal efforts are predicated on 

the supposed inability of state officials to investigate violations with interstate implications?l 

Out of this concern, the Federal Courts Study Committee recommended legislation that would strengthen 

the ability of the states to prosecute rather than to turn all 

multistate criminal activity over to the federal government. Specifically, the committee recommended that federal legislation allow state courts to apply to federal courts 

for assistance in gaining nationwide service of subpoenas 

and other 

168 U.S. Advisory Commission on Intergovernmental Relations 
The Federal Courts Study Committee further urged 

that, “Federal prosecuting authorities should limit federal 

prosecutions to charges that cannot or should not be 

prosecuted in the state courts.”53 This admonition echoes 

the U.S. attorney general’s guidelines urging U.S. attorneys not to supplant local prosecution. Justice Sandra Day 

O’Connor focused her address before the 1991 Presidential Violent Crime Summit on the same theme of “appropriate respect and regard.”54 Congress also echoed this in 

its 1991 bill by declaring it “the intent of Congress that 

[provisions] shall be used to supplement but not supplant 

the efforts of State and local prosecutors.’’ 

However, despite this official unanimity among all 

branches of the federal government against the prosecu- tion of crime under federal laws, in practice, the trend to- ward greater involvement of federal authorities in law enforcement continues to be driven by tougher penalties 

enacted by Congress, by aggressive executive agency poli- cies, and, in some jurisdictions, by the difference in judicial 

philosophy and/or caseloads. Parallel federal and state 

laws do provide options. In fact, to eliminate any potential 

legal loophole being used by the defense that an arrestee 

could not be prosecuted in federal court, the statement of 

congressional intent cited above is followed by the qualifi- cation that it does not “place any limitations on otherwise 

lawful prerogatives of the Department of Justice.” 

The difference between intent and practice is exemplified further by legislative authorization of targeted programs for “drug emergency areas” and for rural drug prevention in the 1991 federal anticrime proposals and by 

executive department initiatives, such as “Weed and 

Seed.” Rural drug enforcement task forces would have 

heavy representation of federal law enforcement authorities and cross-designation of federal law enforcement officers to enable them to enforce state laws. The “drug emergency areas” provision would authorize the president to 

“direct any Federal agency, with or without reimbursement, to utilize its authorities and the resources granted to 

it under Federal law” in support of state and local efforts. 

Although still entitled “cooperative” support, the provisions represent a significant extension of federal initiative. 

A Department of Justice description of Weed and Seed is 

less subtle in acclaiming that: 

The Weed and Seed program will complement 

the Department’s law enforcement initiatives under Project Triggerlock, which targets violent offenders for prosecution in Federal court to take 

advantage of tough Federal firearms laws. Between April 1991 and January 1992, Project Triggerlock resulted in 4,500 cases charged and had a 

91% conviction 

General government officials and citizens in the loca- lities receiving the assistance probably will welcome the 

federal presence. In high-crime areas, there undoubtedly 

is great sympathy for the following dissent of the assistant 

attorney general for the criminal division of the U.S. De- partment of Justice to the Federal Courts Study Commit- tee’s call for restraint: 

Federal policy is to coordinate with local prosecutions not to “federalize” them. . . . [Ulntil thevast 

majority of the states enact new and more effective laws to combat drug trafficking and create adequate prison capacity to house those convicted, 

the federal government will have a responsibility 

to step into the breach. . . . In fact, an important reason why federal prosecutors sometimes take cases 

that apparently could be handled in state courts is 

that they have been asked to do so by state investigators or prosecutors who believe, for one reason or 

another, that society will not be as adequately protected by a prosecution at the state 

Finally, it is not just concern about combatting crime 

that is leading to change. The desire for efficiency and increased professionalism, which is a laudable goal of budgeting, has also shifted traditional intergovernmental balances. These forces, as well as concern for equal justice, 

led to state unification of small local courts in the early 

1970s. The experience gained through specific multijurisdictional drug task forces similarly appears to be leading to 

comprehensive unification of many small police forces. 

For example, based on its experience with regional drug 

task forces, Michigan observed that through statewide 

coverage, even in rural areas, “Much more can be accomplished with fewer dollars than with a strategy of separate 

funding for each of the more than 600 organized police/ 

sheriff departments in the 

It would appear that the U.S. Senate was operating 

from a similar motivation when it passed a 1991 provision 

for the federal government to begin running drug treatment prisons and boot camps for state prisoners. The Senate approach appears to be based on a belief that the 50 

states would not be able to administer effective treatment 

programs if they were to be given the federal treatment 

funds directly, as under the House version. 

The key policy question, then, is whether our federalist structure creates a meaningful difference in facilitating 

intergovernmental cooperative cost savings. 

6 Should operational initiatives be opposed if they 

involve federal efforts while being encouraged if 

they do not? 

6 Or should the goals of increased efficiency and 

the modern irrelevancy of historic jurisdictional 

boundaries to organized crime compel government policy toward increased joint efforts by 

whatever means they can be achieved? 

Summary 

Controlling the cost of government services is a widely recognized responsibility of general government 

elected officials. In criminal justice, cost savings may come 

through improved system management-as discussed 

throughout this report-to remove bottlenecks that affect 

the operational costs of other agencies. Savings may be 

realized by making lower cost alternatives available. However, due to start-up costs, many of these initiatives save 

money only in the long term. 

Long-term cost savings also can be realized by augmenting the professional capacity of an agency, either by 

US. Advisory Commission on Intergovernmental Relations 169 
using the private sector or through intergovernmental 

cooperation among similar agencies. General government 

officials will need to ensure that full-cost accounting comparisons and liability issues are addressed in decisions to 

expand use of the private sector. 

Increased intergovernmental cooperation between 

parallel criminal justice agencies, spurred in the 1980s by 

the drug trade, will likely continue to develop, in part because controlling the unrelenting growth of criminal justice expenditures will demand it. In other cases, intergovernmental cooperation will increase simply because the 

comfort level of practitioners and their willingness to 

cooperate increase with each successful operation. In addition, new computer technology increases the capability 

to support improved communication, coordination, and 

criminal investigation. 

However, constitutional concerns about the resulting 

centralization should be part of the public policy debate. 

To the degree that this debate ensures that cooperative efforts are participated in freely at the working level to meet 

actual needs, rather than imposed from the top down, the 

concept of community standards of law enforcement can 

remain sound. Indeed, the philosophical goal for all criminal justice agencies- to preserve their autonomy while 

pursuing productive cooperation-was well stated in referring to prosecutors a decade and a half ago: “largely independent, they have accepted the collegial model of 

state [-federal] helpbut not state [-federal] ~upervision.”~~ 

INTERGOVERNMENTAL FUNDING 

The first two sections of this chapter dealt with 

sources of revenue and cost savings that could be realized 

from a government’s decisions to help itself. The second 

section included the concept of governments sharing their 

resources to achieve mutual benefits. This final section focuses on the responsibility of state and federal governments to fund criminal justice system needs after all locally generated resources have been tapped. 

This section begins with the types of state and federal 

programs and project grants targeted to achieve specific 

policy goals determined by the government providing the 

funding. It then turns to intergovernmental formula support 

for criminal justice, typically through block grants, where the 

major impetus is to establish a more even funding base. 

Because there is a significant difference between federal and state criminal justice responsibility, it is difficult 

to compare the amount of intergovernmental assistance 

each provides. The federal system is constitutionally separate from state-local criminal justice systems, and any assistance is traceable directly even if it passes through a 

state allocation process. However, the amount of federal 

assistance is small. Although 7.2 percent of 1990 federal 

criminal justice expenditures went to state and local governments, federal intergovernmental funds made up only 

1.1 percent of state/local expenditures. Even in 1973, 

when over 25 percent of federal spending was intergovernmental assistance, federal funding was only 5 percent 

of state and local expenditure^.^^ 

Although states did appropriate at least 3 state dollars 

in direct assistance to localities for every federal dollar in 

1990,@’ significant state funding also may take the form of a 

state assuming responsibility for a criminal justice function that localities provide in other states. The longer the 

division of authority has been in place, the less local governments are apt to regard the direct state expenditure as 

state assistance. Combining direct expenditures and intergovernmental assistance, state governments funded 40 percent of total state-local criminal justice expenditures on average in 1988, and six states funded over 60 percent (Alaska, 

Delaware, Kentucky, North Carolina, Vermont, 

State and Federal Program Support 

and Project Funding 

State and federal discretionary project grants and 

technical assistance represent one avenue for meeting 

criminal justice needs. Project grants are not an ongoing 

source of revenue. Ideally, the successful improvements 

they help develop will be funded by the government with 

the program responsibility. In addition, the policy goals of 

experimental project grants are served most fully when information is shared with other criminal justice agencies to 

spread use of proven program improvements. 

At times, information sharing has been collegial, and 

ongoing funding has been provided willingly by the host 

government. At other times, changes fostered by discretionary grants have become controversial mandates. The 

same potential for intergovernmental controversy exists 

in training. Training programs may be a welcome state assumption of a need that would have had to be funded locally or go unmet; in other instances, training initiatives 

are regarded as irrelevant, costly, and/or intrusive. As in 

the previous section, often, the difference is whetherpractitioners perceive that the programs support their priorities or are controlled and imposed from “above.” 

State Program Assistance 

Policing. State provision of training for local police 

and sheriff’s departments was initiated in many states with 

federal LEAA (Law Enforcement Assistance Administration) funds in the 1970s. The impetus for LEAA funding, 

as well as the continuing importance of the state role, reflects the fact that the vast majority of local law enforcement agencies are too small to establish and support their 

own training. Eighty-nine percent of the police agencies 

serve jurisdictions with populations under 25,000. Only 34 

of the almost 12,000 local police departments and only 12 

of the 3,000 sheriff’s departments have more than 1,000 

sworn officers.62 

The major issue in state-provided training is whether 

it is relevant to local circumstances. States attempt to address this concern by providing the training regionally, 

drawing from experienced local officers as trainers, and by 

working with local advisory boards. This enables them to 

weight the curriculum appropriately. For example, one region may need to emphasize procedures to be followed in 

a convenience store hold-up off an interstate while anoth170 U.S. Advisory Commission on Intergovernmental Relations 
er might need training in dealing with domesticviolence in 

a small-town setting. 

Courts. State services to prosecutors and judges also 

expanded in the climate of LEAA, although the origins of 

steps to increase court professionalism began with the appointment of the first court administrator in New Jersey in 

1948. With local court reform and unification came a 

structure, usually administered by the state supreme 

court, to convey administrative improvements, personnel 

management strategies, and continuing legal education to 

judges sitting locally. This climate of increased professionalism, as well as the need to understand the ramifications 

of numerous U.S. Supreme Court evidentiary rulings, also 

led states to support specially targeted continuing legal 

education for prosecutors. More recently, the development of computer networks for time-consuming legal research has led states to fund access to this research capability for small prosecutor offices. 

Similar state-supported in-service training for public 

defenders is not common, in large part because their mission is the same as members of the private bar. Therefore, 

their continuing legal education needs can be met by nongovernment programs. 

Indeed, private, nonprofit professional associations 

play a major role in continuing education, information 

sharing, and the development of standards in every field of 

criminal justice. For example, the American Bar Association, the National Center for State Courts, and the Institute for Court Management play key roles in training 

court officials, along with the National Association of Attorneys General, the National District Attorney’s Association, and the National Association of Legal Defense Attorneys. The American Correctional Association, as an 

umbrella organization for a number of penal functions, 

took the lead in establishing prison and jail standards, 

while the nonprofit Commission on Accreditation for Law 

Enforcement Agencies (CALEA) began accrediting police and sheriff departments in the mid-1980s. Trial Court 

Performance Standards were published in 1990 by the National Center for State Courts under a Bureau of Justice 

Assistance grant. 

Local Corrections. State project grants and technical 

assistance for correctional programs vary much more from 

state to state than does state assistance provided for policing or court-related functions. The differences, in large 

measure, reflect differing degrees of state responsibility. 

In six states (Alaska, Connecticut, Delaware, Hawaii, 

Rhode Island, and Vermont) the state is responsible for 

virtually all correctional spending; there are no state 

grants to localities because there is little or no local responsibility. In eight states (California, Florida, Minnesota, Nevada, New York, Oregon, Pennsylvania, and Texas), 

less than 60 percent of all correctional spending in 1987 

was funded by the ~tate.6~Table 7-2 lists the states that provided more than $1 per capita in state correctional aid to 

localities in 1987. Those states account for 97 percent of 

total state corrections aid. 

States that have enacted Community Corrections 

Acts have acknowledged that alternatives to incarceration 

~~ ~~~~ 

Table 7-2 

States Spending at Least $1 Per Capita 

for Corrections Aid to Localities, 1987 

Amopunt 

State Per Capita 

1. Virginia 

2. California 

3. Tennessee 

4. NewYork 

5. Kentucky 

6. Iowa 

7. Louisiana 

8. Oregon 

9. Alaska 

10. New Jersey 

11. Minnesota 

12. Arizona 

13. Maryland 

14. Texas 

15. Ohio 

16. Georgia 

17. Illinois 

18. Mississippi 

19. Kansas 

20. North Carolina 

$27.37 

9.57 

8.29 

7.62 

7.48 

6.58 

5.80 

5.06 

5.00 

4.49 

3.70 

3.52 

3.33 

3.06 

2.76 

2.25 

2.17 

1.68 

1.51 

1.51 

Source: Martha A. Fabricius and Steven D. Gold, State Aid to Local Governments for Corrections Programs (Denver: National Conference of State Legislatures, April 1989). 

are important to the functioning of the state’s total criminal justice system. These states are likely to fund local pilot projects for pretrial release, electronic incarceration, 

community servicelrestitution, and juvenile treatment. As 

noted in Chapter 3, recent Community Corrections Acts 

are more apt to be based on mandates for local participation, which target funds to reduce the use of incarceration, 

than are those passed a decade ago, which were oriented 

more toward equalizing resources. 

As noted in Chapter 5, states also are increasing their 

support of local jail construction costs. This policy decision 

can be based on any number of factors. The state may want 

to influence jail design because it assists in paying jailer 

salaries. State policymakers may be concerned that if jail 

expansion is not addressed along with prison capacity expansion, sentencing may be slanted increasingly toward a 

prison term. State construction grants may be used to encourage regional facilities to replace antiquated, inefficient, small rural jails. Finally, states may simply be responding to intergovernmental pressure to help fund what 

is a signsicant one-time local expenditure. Such pressure 

is often related to the fact that a large number of individuals being held in local jails have been arrested for violation 

of state laws. Local cries for state help became particularly 

strong in the late 1980s due to the impact of state legislation requiring mandatory jail terms for drunk driving. 

Differences in mission between prisons and jails, as 

well as in local receptivity, explain why states have been 

slow to develop training programs for jail deputies. TrainUS. Advisory Commission on Intergovernmental Relations 171 
ing that could be provided by prison officials would be related to handling experienced violent offenders and to the 

type of organized activity that can develop with long periods of incarceration. There is no parallel in prison operations to many of the duties of jailers who handle large 

turnovers of disruptive individuals. 

Finally, some states provide an oversight function in 

certifying private in-state and out-of-state facilities that 

may be used by juvenile and adult treatment programs. 

Given that programs used for juveniles may also be used 

for special education placements by local school systems, a 

single review authority is particularly efficient. 

Criminal Justice Planning. There was a 294 percent 

increase in the total amount of state correctional aid provided to local governments from 1980 to 1987. This not 

only outstripped the increase in total state aid to localities 

(67.9%), but the growth in state correctional aid to localities also was more than double that of state correctional 

spending (117.9%).& Despite such extraordinary increases 

in state assistance, local claims that they are unable to 

meet the rising costs of criminal justice are more prevalent 

than ever. This lack of relief has begun to underscore the 

fact that traditional approaches are not adequate and that 

proactive planning, rather than just reactive spending, is 

needed. However, many localities do not have the resources to undertake sophisticated planning. 

For example, noting that, “State and local criminal 

justice agencies have very limited research and evaluation 

resources, often fragmented within agencies,” Oregon’s 

1990 Drug Control Package proposes to use federal drug 

funds to create state and local matching grants “to identify 

needs and to determine which programs work and which 

do not.”65 Recognizing that planning depends on accurate 

forecasting, Virginia is attempting to work with localities 

to improve their jail population forecasting capabilities. 

However, demographic and law enforcement differences 

between localities seem to make it infeasible to provide 

the assistance through one state model, and given ongoing 

budget pressures, the cost of setting up adequately sophisticated models in each major locality has not been a priority expenditure. 

Another area in which states are providing assistance to localities has been dictated by lack of computer 

compatibility, which, despite technical progress, still 

presents problems. As noted, data sharing is an important element of effective police work and correctional 

program efficiency, but coordination may be bIocked 

rather than assisted by technology if incompatible decisions are made initially. In New Jersey, potential incompatibility was avoided by the state purchasing the equipment to be used locally as part of its integrated court 

system support. In Florida, the state simply tried to reduce compatibility problems by offering regular technology seminars to suggest systems compatible with others statewide, as well as with the state’s own system.& 

Federal Program Assistance 

The federal government has been more active than 

the states in providing project grants to foster innovations, 

perhaps because it is not under the same pressure to fund 

ongoing operational costs within a balanced budget. The 

level of federal activity also reflects the breadth of research-sharing opportunities that federal efforts can facilitate among the 50 states. Table 7-3 provides a listing of 

federal criminal justice project grants funded in FY 1991. 

Formula grants, which will be discussed later, also are 

shown. While the value of these grants-in-aid (in 1982 dollars) has increased from $572 million in FY 1978 to an estimated $928 million in FY 1991, criminal justice assistance 

represents only 0.6 percent of all federal assistance to 

states and 10calities.~~ 

Most grants are funded through the Office of Justice 

Programs (OJP) of the U.S. Department of Justice. OJP is 

comprised of five program divisions: the Office of Juvenile 

Justice and Delinquency Prevention (OJJDP), Office for 

Victims of Crime (OVC), the Bureau of Justice Statistics 

(BJS), the Bureau of Justice Assistance (BJA), and the 

National Institute of Justice (NIJ). While each program 

division has independent authority to award funds to programs under its purview, the combined components constitute a single agency whose goal is the development and 

implementation of innovative programs. Grants and assistance also are awarded through the National Institute of 

Corrections which is under the federal Bureau of Prisons. 

Criminal Justice Planning. In addition to grant assistance to improve criminal justice functioning, the federal 

government has established standards in several areas of 

crime statistics that are useful for planning. A uniform nationwide approach to data reporting enables local and 

state agencies to assess their needs and program effectiveness and puts elected officials in a better position to make 

policy decisions on the impact of crime. Uniform Crime 

Reports (UCR) is the most widely used of these federal 

data bases. The FBI receives incident and arrest data on 

eight major crimes, either directly or through state-run 

UCR programs, from the more than 15,000 state and local 

law enforcement agencies. These data are compiled in an 

annual publication called Crime in the United States, which 

was first published in 1930. 

In 1969, following the recommendation of the Katzenbach Commission, a small federal administrative statistical effort was formed with LEAA funds to meet the 

need for a wider range of criminal justice information than 

that provided by the FBI. In 1979, the Bureau of Justice 

Statistics (BJS) was established as a separate Justice Department agency. Its statutory responsibilities include: (1) 

coIIection, analysis, and dissemination of statistics on 

crime and justice for all units of government; (2) provision 

of technical assistance and financial aid to state statisticaloperating agencies; (3) analysis of privacy, confidentiality, 

and security of criminal records and data; and (4) dissemination of information on the state of crime and justice to 

allbranches of federal and state governments. BJS reports 

are used widely by state and local officials. 

Drug Use Forecasting (DUF) is another recent uniform reporting system for criminal justice planning instituted by the federal government. NLT began the DUF program in New York City in 1987. By 1990, 23 cities had 

entered the program. DUF is designed to provide each city 

with estimates of drug use among arrestees and informa172 U.S. Advisory Commission on Intergovernmental Relations 
Table 7-3- 

Federal Categorical Criminal Justice Grants, FY 1991 

Title 

Reciaients: 

Governments 

States and and Non-Profit 

U.S. Code States Localities Organizations 

Project Grants 

1. Juvenile Justice and Delinquency Prevention: 

Special Emphasis and Technical Assistance 

2. National Institute for Juvenile Justice 

and Delinquency Prevention 

3. Missing Children’s Assistance : Public Information 

4. Missing Children’s Assistance: 

Research, Demonstration 

5. Criminal Justice Statistics Development 

6. Justice Research and Development 

7. Mariel Cubans 

8. Criminal Justice Discretionary Grants 

9. Emergency Federal Law Enforcement Assistance 

10. Narcotics Control Discretionary Program 

11. Drug Law Enforcement Program--Prison Capacity 

12. Crime Victim Assistance/Discretionary Grants 

13. Corrections: 

(a) Training and Staff Development, 

(b) Research and Evaluation, 

(c) Technical Assistance, 

(d) Policy Formulation, and 

(e) Clearinghouse 

Formula Grants 

1. Children’s Justice Grants to States 

2. Juvenile Justice and Delinquency Prevention: 

3. Crime Victim Assistance 

4. Crime Victim Compensation 

Formula/Project Grants 

1. State and Local Narcotics Control Assistance 

Allocation to States 

42 USC 5634 

42 USC 5651 

42 USC 5773(b) 

42 USC 5775 

42 USC 3732 

42 USC 3772 

101 Stat 1329-14 

42 USC 3761 

42 USC 10501 

42 USC 3796p 

42 USC 3796i(4) 

42 USC 10603 

18 USC 4351-53 

X 

X 

X 

42 USC 5103 X 

42 USC 5631 X 

42 USC 10603 X 

42 USC 10602 X 

42 USC 3712 et seq. X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

Source: U.S. Advisory Commission of Intergovernmental Relations, Characteristics of Federal Grant-in-Aid Programs to State and Local 

Governments: Grants Funded FY 1991 (Washington, DC, March 1992). 

tion for detecting changes in drug use trends. Through 

anonymous random urine sampling, the DUF program 

provides the first objective measure of recent drug use 

among people who are involved in crime, rather than relying on self-reporting. This information can be used to plan 

the allocation of law enforcement, treatment, and prevention resources, as well as to provide comparisons on the 

effectiveness of local drug use reduction effortsM 

Policing. The FBI has a long history of initiating innovative policing techniques and new technologies, testing 

them for effectiveness, and then channeling them to state 

and local law enforcement through training programs. As 

an integral component of the FBI’s effort to upgrade state 

and local law enforcement capabilities, seminars and 

courses are offered at the FBI Academy and in regional, 

state, and local facilities to improve the management of 

crime-solving programs and operations. Specialized 

schools address a broad array of technical and investigative topics, such as hostage negotiation, computer crime, 

criminal psychology, and interpersonal violence. The FBI 

also provides training on state-of-the-art investigative 

tools for state and local crime lab personnel to enhance 

their forensic capabilities. For example, the FBI instituted 

a training course in 1988 for state lab technicians in DNA 

chromosome matching protocols and procedures. 

Courts. The federal war on drugs has produced renewed interest in discretionary grants to enhance effective prosecution. This federal assistance is being directed 

in a number of areas: legal support, management assistance, and alternative sentencing. For example, federal 

agencies are providing training to help state and local authorities pursue large intrastate drug enterprises and, in 

some jurisdictions, to help formulate legislative proposals 

creating the necessary statutory tools to ensure that violators are adequately punished and their assets f0rfeited.6~ 

BJA is funding development of a model case-management 

program for jurisdictions with populations over 750,000 to 

prosecute large numbers of drug cases more effectively or 

efficiently. In the development of this model, the actual 

practices of a minimum of 30 metropolitan prosecutors’ 

U.S. Advisory Commission on Intergovernmental Relations 173 
offices will be surveyed. Finally, federal funding, which 

had been withdrawn in 1981, is again available for TASC 

programs, which are designed to encourage participation 

in treatment in lieu of prosecution. 

The caseload impact on federal courts of the war on 

drugs also has spurred ongoing efforts to coordinate state 

and federal court activities. In 1970, Chief Justice Warren 

E. Burger initiated the concept of local state-federal judicial councils. Although at least 40 counciis were formed, 

by 1980 only nine were still active. However, that number 

grew to 19 in 1990, and by joint action of the Conference of 

Chief Justices (state) and the Judicial Conference (federal), a National Judicial Council of State and Federal 

Courts was formed in 1990 to serve as “a national coordinator to encourage the establishment of local state-federa1 judicial councils and strengthen existing councils.”7o In 

addition to calendar coordination, coordinated discovery, 

and joint settlement efforts stemming from multiple cases 

relating to one event, efforts in some state and fedcral 

courts include unified jury pools, coordinating appointment of indigent counsel, and taking a joint approach to 

management issues such as court reporting, training, and 

data mar~agernent.~’ 

In another area that received significant attention in 

the 1980s, the federal government established a separate 

agency, the Office for Victims of Crime (OVC), to provide 

states and localities with grants and awards to improve the 

treatment of crime victims. Although OVC grants are primarily federal formula block grants to compensate and aid 

victims of crime, rather than demonstration grants, they 

are included in this section because they are controlled by 

federal requirements that are designed to influence state 

and local priorities as to the classes of victims served and 

the services provided. OVC also operates the National 

Victims Resource Center, a clearinghouse for victim-oriented information. 

Corrections. The National Institute of Corrections is 

the primary vehicle of federal assistance to state and local 

correctional agencies. It was created in 1974 to serve and 

strengthen correctional programs through five program 

areas: (I) training, (2) technical assistance, (3) research 

and evaluation, (4) policy and standards formulation and 

implementation, and (5) clearinghouse information. 

Through its four program divisions (jails, prisons, community corrections, and the National Academy of Corrections), NIC responds to requests from state and local officials that address both institutional and community 

correction concerns. 

NIC’s philosophy is to be a facilitator. When called in, 

it will analyze the nature of the problem, but it does not 

recommend how to solve it. Instead, NIC recommends experts or contacts with other systems that have addressed 

similar situations. It is up to the locality to pursue the specific assistance. According to its director, only half of 

NIC’s staff is permanent; the other half is on a two-year 

rotation from the states and localities through intergovernmental agreements. This gives NIC’s recommendations great credibility in the field, creates a dynamic information clearinghouse, and provides in-service training for 

local and state officials. 

In keeping with the facilitator concept, NIC grantsare 

small. For example, in 1990, NIC designated four sites as 

“Jail Resource Centers.” Each designation was accompanied by a $35,000 grant for travel to allow other correctional officials to observe how the respective programs work 

and how to implement them in their jurisdictions. These 

resource centers included an objective jail security classification system, new institutional planning, a direct supervision program, and a jail industries program. NIC also has 

established satellite TV training programs that can be set 

up to meet specific needs, such as use of a new classification system. Night service is offered to accommodate correctional down time. 

In addition to NIC assistance, the Office of Justice 

Programs (OJP) is placing strong emphasis on intermediate punishments. In FY 1990, $14 million of OJP’s budget 

was devoted to intermediate punishments-a 245 percent 

increase from 1989. All of OJP’s agencies are studying, 

evaluating, implementing, and providing training and 

technical assistance to model programs, such as shock incarceration, drug testing, denial of federal benefits, and 

electronic 

While grants are given to improve rehabilitation and 

treatment programs for juveniles, the Office of Juvenile 

Justice and Delinquency Prevention (OJJDP) has had to 

maintain a specific interest in removing juveniles from or 

separating them within adult jails and correctional facilities and in removing status offenders from institutions. In 

FY 1989, OJJDP distributed close to $46 million informula grants and almost $1 million for on-site technical assistance, workshops, and educational initiatives to bring 

states into compliance with the 1974 federal act that mandated separation. In addition, $4 million in discretionary 

funds was allocated to aid states for jail removal initiatives. 

The Bureau of Justice Assistance (BJA) administers 

discretionary project and formula grant funds and programs to assist state and local criminal justice agencies. 

The Drug Control and System Improvement program established by the Anti-DrugAbuse Act of 1988 is the primary 

federal grant administered by BJA. These grants focus on 

anti-drug initiatives in state and local law enforcement 

systems. Appropriations for this program in 1990 totaled 

$447 million, triple the allotment in 1989.73 In addition, 

BJA administers a smaller program of discretionary state 

and local project grants to test state-of-the-art criminal 

justice practices and transfer model programs to other jurisdictions through expert on-site assistance. 

The National Institute of Justice (NIJ) is the principal 

research and evaluation arm of the U.S. Department of Justice. Its goal is to develop research about the control of crime 

and promulgate the results to criminal justice policymaken 

and practitioners through training, fellowships, and conferences. In 1972, NU established the National Criminal Justice 

Reference Service (NCJRS) to serve as an information 

clearinghouse. With over 100,OOO books, articles, reports, 

and other library aids in the archives, NLT responded to more 

than 40,OOO information requests in 1989.74 New publications 

and innovative programs from the four other OJP divisions 

also are distriiuted through NCJRS, which can be and is 

used as a resource by general government officials. 

174 U.S. Advisory Commission on Intergovernmental Relations 
Will Discretionary Assistance 

Lead to a Mandate? 

combination of the following reasons: 

Discretionary project grants are used for one or for a 

A government desires to influence the policy decisions of the recipient governments. 

There are insufficient funds to support the same 

level of funding for all recipient governments. 

There is insufficient evidence or political support 

to mandate the policy change. 

The broadly based government wants to support 

innovation and information sharing among the 

recipient governments. 

The broadly based government’s program responsibilities cannot be addressed without operational changes within its recipient governments. 

All of these reasons involve trying to effect change in state 

or local government policies without full funding support. 

Therein lies the intergovernmental controversy: Will benign support for change become an unfunded mandate? 

The least controversial project grants and assistance 

programs are those that represent a unique function that 

cannot be performed by the participating units of government. The broad nature of these services also removes 

them from the influence of current political philosophies. 

These types of programs include state and federal UCR 

data development, FBI advanced training programs, and 

the clearinghouse functions provided by NIC and NCJRS. 

Although there is always the possibility that the service 

might be cut back or eliminated through budget cuts, other 

units of government could not be productively mandated to 

perform such a broad-based or highly specialized function. 

In other assistance programs, if mandates evolve, 

their acceptance can be enhanced by the NIC practitionerbased approach, which many of the state basic training 

programs also try to incorporate. Acceptance is not just a 

matter of collegial respect; it also reflects the fact that the 

program substance is, in fact, relevant to the problems and 

priorities at the working level. If a collegial approach has 

been used and if mandated training requirements are expanded, the need for the upgrade will be accepted by the 

practitioners and thus, in most instances, by the general 

government officials who will have to fund incremental 

budget increases caused by the additional hours spent in 

training and not in the performance of duties. 

Suspicion that discretionary assistance will lead to an 

oppressive mandate increases with the degree to which 

the grant relates to the program responsibilities of the 

grant provider. For this reason, federal project grants to foster alternative sanctions raise fewer concerns among local 

governments than does state funding of similar initiatives. 

For example, a pilot program for pretrial release might be 

regarded with suspicion that the state will use the results of 

successful programs to make state jail per diem funding con- ditional on all localities establishing similar programs. 

The establishment of a coordinating function likewise 

raises concerns that coordination will lead to costly regulations and retrofitting to achieve compatibility. The Senate version of the 1991 federal anticrime legislation authorized $100 million annually to help states meet the 

mandate that they must computerize their records to allow for instant background checks of prospective weapon 

purchasers or lose half their federal law enforcement 

funds. This attempt to fund the mandate may be severely 

undercut, however, by the legislation’s direction to the 

Department of Justice to develop regulations to ensure 

nationwide compatibility and accessibility. The cost of 

meeting these regulations may far exceed the assistance. 

Even greater controversy can occur when conditions 

are attached to discretionary grants or assistance programs during the legislative process. The controversy is 

fanned because such a legislative history usually means 

that the requirement has some popular support, and officials in the recipient governments probably would have already instituted it, if funding was not prohibitive or other 

priorities were not more pressing. Local or state officials, 

therefore, feel that both their management prerogatives 

and their political credit have been usurped. 

For example, a 1991 House of Representatives proposal would make drug testing an integral condition of 

grants for pretrial drug testing and prison drug treatment. 

This concept has wide public support, but it is very costly. 

Because all prisoners released from any drug treatment 

program would have to be tested, including those not covered by the grant, the cost of meeting this condition would 

be more than the grant funds received. 

Not surprisingly, the greatest intergovernmental controversies are attached to mandates that are not accompanied by any funding. The view from the targeted governments is that if state or federal legislators feel that it is 

their duty to speak out on an issue, then they should accept 

at least some responsibility for solving it. For example, as 

noted earlier, both houses of Congress passed legislation 

in 1991 mandating that state and local governments establish literacy programs in correctional facilities that have 

more than 150 inmates. No federal funding was authorized to help pay for the additional costs to states and localities. Therefore, although about 20 states have prison literacy programs, the National Conference of State 

Legislatures (NCSL) opposed the legislation as another 

unfunded federal mandate.75 

Finally, even if mandates are accompanied by funding, a major source of controversy occurs when the initial 

level of intergovernmental support is not maintained. For 

example, although the Georgia legislature declared in the 

1979 Indigent Defense Act “that the state be responsible 

for funding the indigent defense system,” by fiscal 1990, 

the level of state funding had fallen to 6.5 percent. State 

budget cuts and caseload growth, which pushed costs from 

$18 million to $26 million, further reduced state support to 

just 4 percent in 1992. One way to deal with the erosion of 

intergovernmental funding of mandates is to change the 

funding base to the actual cost of a specific element of the 

mandate (e.g., funding public defender salaries in the same 

way as the state finances prosecutor salaries, as suggested in 

this instance by a Georgia Supreme Court justi~e).’~ 

U.S. Advisory Commission on Intergovernmental Relations 175 
However, even designating that the state has specific 

responsibilities may not guarantee payment. In California, 

a 1977 legislative concession to those opposing the death 

penalty established a provision in the Penal Code that the 

state had the responsibility to reimburse counties for investigative costs for indigent defendants facing a death 

penalty. However, in balancing the FY 1991 budget, state 

funds used for this purpose were cut. Los Angeles County 

filed an administrative class action before the state’s Commission on State Mandates attempting to force the state to 

pay and was reported ready to take the case to court if the 

Commission did not rule in favor of the county’s claim.77 

Is Intergovernmental Assistance Relevant? 

Questions are sometimes raised as to whether intergovernmental pilot funding and direct assistance administered by state or federal agencies are truly helpful to recipient governments or to the programs they administer. 

Several approaches can help answer such questions in the 

affirmative, including: 

Recognizing that most programs cannot be transferred wholesale; 

w Respecting professionally developed standards: 

and 

Examining the need for a centralized bureaucracy. 

It has been observed that there are no model programs, only model administrators. Even taking this view, 

state and national research data and networking information on what works is still very valuable, but as a spur to 

creative thinking, not as a recipe book. Although using research results to prescribe a specific approach can be too 

confining, demonstrating that success is possible can be 

very supportive of change. By simply having the data available, the innovators within each local and state criminal 

justice network can use it to justify an approach adapted to 

the unique structural components, demographics, and 

personalities with which they must deal. 

However, whether intergovernmentally supported 

research is regarded as setting the climate for change or 

actually being the instrument of change, the issues surrounding valid criminal justice research raised by the National Academy of Science, discussed in Chapter 4, still 

must be addressed: 

Because programs have been poorly conceptualized and/or poorly implemented and research 

flawed by conceptual and methodological 

shortcomings, . . . instead of concluding that 

nothing can work, it is more accurate to state 

that we do not know what works.’*These studies 

are limited by methodological inadequacies including measurement problems, the use of 

weak programs and weak research designs, and 

uncertainty about the integrity of the treatments actually delivered?’ 

Some of the measurement problems and weak research 

designs that hamper intergovernmental transfers of research include skewed selection of participants, lack of 

system-specific baseline data, and lack of defined followup periods. 

There is an important intergovernmental role in addressing such shortcomings because most local governments are not staffed to provide sophisticated research 

analysis. In addition, the first concern at the operating level is often program delivery rather than evaluation, creating an even greater need to validate programs at locations 

other than those at which they have been developed. False 

expectations based on inflated reports of success can undercut otherwise sound programs, which are in fact capable of limited progress. 

Professional organizations represent another important element in shaping relevant intergovernmental policies. As noted throughout this report, the American criminal justice system is based on the checks and balances of 

independent components. Furthermore, practitioners 

must have specialized skills, such as legal training and/or 

training to avoid death or injury. Professional pride, therefore, is both required and fostered by the structure of the 

system. General government officials need to find ways to 

avoid threatening that pride while exercising their oversight responsibility and desire to set policy. 

Professional associations are one means to bridge that 

gap. The contribution of these associations has grown 

since the days of LEAA, with its emphasis on criminal justice reform and the need for standards. Professional organizations began to realize that they had a responsibility to 

provide guidance for general government officials, or they 

would have regulations imposed arbitrarily. 

As the professionalism of these organization has increased, most general government officials can be convinced to use their standards in setting policy. Although 

often more expensive than the alternatives that 

policymakers would adopt on their own, one advantage in 

using national standards is the protection offered against 

successful court suits. For example, accreditation has been 

used as a benchmark to end court orders stemming from 

cruel and unusual punishment and overcrowding suits. 

Furthermore, as the National Institute of Municipal Law 

Officers advocates, achieving police and jail accreditation 

is the best defense against expensive personal injury suits. 

Even charges growing out of an incident as serious as a jail 

suicide may be dismissed if procedures recommended under professional accreditation standards have been followed. Of course, more importantly, the procedures can 

prevent such serious incidents. 

While relevant to practitioner concerns, intergovernmentally mandating professional standards still may be 

highly controversial because of cost. In addition, professional organizations sometimes end-run the government 

that must fund and administer the program by getting 

state or federal officials to mandate standards for which 

they need take no further responsibility. For example, in 

1991, the U.S. Senate passed the “Police Officers’ Bill of 

Rights Act,” which sets standards for internal investigations of police activity that explicitly preempt state laws I 

and collective bargaining agreements. The legislation 

even preempted state and local sovereign immunity from 

suits related to violation of the personnel rights mandated 

176 U.S. Advisory Commission on Intergovernmental Relations 
by the legislation. Not surprisingly, the U.S. Conference 

of Mayors, the National League of Cities, and the National Association of Counties strongly opposed the measure. 

In addition, when looking to the recommended standards of professional associations for guidance, general 

government officials need to be aware that the weight of 

the total membership of professional associations does 

not reflect large urban departments where crime is so 

heavily concentrated. Therefore, a separate review of 

relevance to any cities to be covered by intergovernmentally imposed standards and requirements is important. 

The special needs and problems of large, heavily impacted urban criminal justice systems represents another 

challenge to developing relevant statewide services. If the 

counties and municipalities that comprise a state’s principal urban area have the resources, it can become the tail 

that wags the dog. Whatever is put in place in the state’s 

major city tends to dictate the nature of state-supported 

assistance elsewhere. In other states, the core urban area 

has neither its own resources to set the standard nor sufficient voting power in the state legislature to command 

state resources relevant to its needs. 

Finally, whenever state or federal agencies provide 

services directly, rather than support the local or state administration of programs, those officials are likely to question whether the additional bureaucracy is relevant to 

their needs. For example, as much as half of the $50 million appropriated for 1990 BJA project grants was used to 

fund federal programs, such as the FBI’s upgrade of the 

National Crime Information Computer system ($17 million), the National Crime Prevention Council ($4 million), 

and the DARE program ($1.2). Federal officials maintain 

that the purpose of these programs is to help state and local 

governments. Local officials argue that they would rather 

have a share of the limited funding to help themselves. 

Intergovernmental Formula Funding 

Project grants represent targeted assistance. They reflect a political judgment by state or federal authorities 

that certain criminal justice approaches are more critical 

than others, often because they are expected to spur 

change. Project grants typically fund activities that are 

supplemental rather than basic, for example: 

rn 

rn 

rn 

In 

Paying for most of the cost to transfer a prototype 

design as a means to reduce construction costs, 

rather than paying a share of the cost of actual 

construction; 

Supporting the purchase of electronic monitoring 

devices, rather than probation and parole officer 

salaries; or 

Funding targeted enforcement of drug laws, rather than a share of all law enforcement. 

contrast, formula funding involves broad-based 

revenue sharing, equalization, or-even program assumption. It acknowledges that there is a responsibility on the 

part of the funding government to see that its constituent 

governments are able to meet basic program obligations. 

Equalization is much harder to achieve than revenue sharing, technically and politically, although usually the rationale for equalization is more easily defended. 

The principal reason why equalization is harder to 

achieve is that it attempts to reflect a measure of need in 

its distribution, and need is difficult to measure. In addition, measures of need change according to the issuebeing 

addressed, which can introduce signsicant confusion in 

political debate and sometimes can lead to the legislation, 

as adopted, not carrying out its assumed intent. 

Variations in Governmental Responsibility 

for Criminal Justice Functions 

In determining the need for funds, the first step is to 

answer the intergovernmental question: Who provides 

the service? Because of the diversity among state criminal 

justice structures, the question is not as easily answered as 

for most public programs. 

The federal variable passthrough (VPT) formula de- veloped in 1972 for LEAA block grant funding was a comprehensive attempt to establish a rational basis for determining who provides criminal justice in each state. It has 

been used for the distribution of most federal block grant 

monies between the states and localities since 1972, including the anti-drug abuse block grant. The focus study 

(page 178) describes the VPT, and provides a picture of the 

variation among the states and some types of criminal justice funding. 

The basic problem with technical approaches, such as 

the federal VPT, is that while they may be excellent for the 

program they were designed to serve, they may be regarded as so good that they automatically are adopted for 

programs whose thrust is different. For example, since 

VPT includes all criminal justice expenditures, it would 

not be appropriate for allocating only correctional or only 

police funds. Furthermore, if the VPT approach is used to 

allocate money proportionally to places where it is currently being spent (e.g., to allocate funds among the 50 

states or for reallocations to local governments), it will 

simply give more money to those spending the most even if 

their criminal justice problems are not as great. 

Allocation on the Basis of Need 

Versus Funding Support 

After determining which units of government have 

what degree of criminal justice responsibility, the next 

consideration is whether intergovernmental funding is to 

be targeted according to need or be used to improve the 

level of criminal justice services across all states or localities. The following list presents the most frequently used 

distribution approaches with the degree to which they 

tend to reflect relative criminal justice system needs: 

m Population Distribution-Distribution by total 

population creates a general revenue sharing approach designed to improve criminal justice services in all recipient jurisdictions without regard 

to the degree of need. It is common for federal 

law enforcement block grant funds to be allocated among the 50 states on the basis of population, although the state-local split within the state 

reflects the VPT proportion. 

US. Advisory Commission on Intergovernmental Relations 177 
Focus 

Federal Variable Passthrough Formula 

The 1968 Omnibus Crime Control and Safe Streets Act (of- ten referred to as the LEAA block grant program) originally required that state governments distribute 75 percent of the federal block grant funds to local governments. This reflected the 

finding that, on average, localities financed threequarters of 

the cost of criminal justice. There were, however, significant differences in the state-local split from state to state, ranging from 

over 75 percent local funding to less than 50 percent. 

In 1972, the LEAA block grant program was changed so 

that the percentage passed through to the localities in any given 

state would correspond with the actual percentage of criminal 

justice costs borne locally. This distribution is still used for federal criminal justice block grant funding and is referred to as a 

variable passthrough (VPT). The VPT for each state is computed annually by the Census Bureau, but there is a two-year lag 

in the figures used because the computations are based on actual expenditures. The state-by-state computations include po- lice protection, the judiciary, prosecution and legal services, 

public defense, corrections, and a residual “other.” 

The percentage of federal block grant funds to be passed 

through to localities in a given state can shift significantly from 

year to year because the VPT reflects capital outlay and state 

intergovernmental expenditures, as well as own-program operating costs, while it includes only own-source revenue. Individual state shifts between 1987 and 1988 ranged from plus to minus 

11 percentage points. 

For example, Tennessee’s increased payments to local 

governments for housing state prisoners caused the state’s 

VPT share to rise 7.2 points. In Washington, it was the localities’ VPT share that rose 6.5 points when a large state payment 

for jail construction in 1985 was not matched in 1988. In con- trast, large outlays of own-source revenue for prison construction increased the state’s VPT share in several states. 

VPT is intended to leave maximum discretion with the 

states in order to encourage comprehensive planning and asystems approach, while providing a safeguard that state bureaucracies will not siphon off monies needed to support local programs. However, cities have been very critical of this approach. 

Almost 25 percent of the 30 cities responding to a 1990 U.S. 

Conference of Mayors survey said that they had yet to receive 

any funding through the Drug Control and System Improvement Grant Program in its first three years. Three out of four 

said that federal antidrug funds should be given directly to the 

cities or that a substate entitlement mechanism should be es- tablished by the federal government. 

This debate between the states and counties versus the cities 

in the distribution of federal criminal justice funds is more than a 

debate about the technical merits of VF’T. It involves a number of 

system planning and intergovernmental issues that will be discussed in Chapter 8, such as perceptions of the importance of po- lice and sheriff’s deputies in fighting crime, state and federal comprehensive drug strategies, and criminal justice system capacities. 

Table 74 

Variable Passthrough Percentages, by State, FY 1988, with Percentage Changes for Local Share Since 1985 

Percent of Total 

State Spending by Localities Percent Impact 

Percent of Total 

State Spending by Localities Percent Impact 

U.S. Total 

Alabama 

Alaska 

Arizona 

Arkansas 

California 

Colorado 

Connecticutt 

Delaware 

District of Columbia 

Florida 

Georgia 

Hawaii 

Idaho 

Illinois 

Indiana 

Iowa 

Kansas 

Kentucky 

Louisiana 

Maine 

Maryland 

Massachusetts 

Michigan 

Minnesota 

Mississippi 

59.39% 

51.26 

24.63 

61.23 

57.78 

64.37 

64.03 

44.76 

28.47 

100.00 

65.18 

58.16 

47.09 

62.82 

66.5 1 

58.91 

46.27 

54.58 

30.33 

55.09 

45.98 

43.14 

44.28 

57.43 

70.93 

57.17 

-0.3% 

5.3 

69.7 

-4.4 

8.0 

-3.7 

-1.2 

-0.7 

10.9 

0.0 

3.8 

2.3 

1.9 

1.8 

0.7 

-15.5 

-0.2 

-4.7 

3.0 

0.4 

4.6 

2.1 

-5.4 

5.3 

12.4 

-2.9 

Missouri 

Montana 

Nebraska 

Nevada 

New Hampshire 

New Jersey 

New Mexico 

New York 

North Carolina 

North Dakota 

Ohio 

Oklahoma 

Oregon 

Pennsylvania 

Rhode Island 

South Carolina 

South Dakota 

Tennessee 

Texas 

Utah 

Vermont 

Virginia 

Washington 

West Virginia 

Wisconsin 

Wyoming 

58.08% 

58.56 

60.13 

61.93 

54.90 

58.55 

44.84 

64.53 

39.3 1 

60.24 

61.89 

46.28 

49.38 

67.76 

44.75 

40.96 

49.36 

52.21 

67.52 

50.90 

28.20 

31.59 

62.91 

49.86 

67.39 

55.41 

-9.2% 

5.8 

2.4 

-14.5 

7.4 

-3.5 

8.5 

4.5 

-7.5 

-7.1 

-11.9 

-1.3 

-2.9 

-2.3 

-0.2 

-2.1 

-2.4 

-12.1 

-0.6 

1.6 

22.1 

-1.3 

11.5 

1.4 

3.9 

-4.0 

Source: US. Department of Justice, Bureau of Justice Statistics, BJS, “Anti-Drug Abuse Formula Grants: Justice Variable Passthrough Data, 1988,” BJS Technical RepoH (Washington, DC, February 1990). 

178 U.S. Advisory Commission on Intergovernmental Relations 
Criminal Justice Expenditures-Distribution reflects some measure of criminal justice activity, 

but it makes no distinction between localities that 

have ample resources to apply to modest crime 

problems and those that have limited resources to 

apply to overwhelming crime problems. As a basis 

of federal funding, it also does not distinguish between states that incarcerate high numbers per capita even though they have low crime rates. 

Crime-Prone Population-Distribution based on 

the population percentage in the prime crime age 

(generally defined as 15 to 35) reflects some measure of need, but it makes no distinction between 

the tendency to commit crime reflected in the different crime rates of rural, suburban, and innercity populations. The age range selected is crucial, depending on the program thrust of the 

funding. For example, the U.S. General Accounting Office found that an anti-drug distribution 

formula based on the number of 18- to 24-yearolds was a better reflection of the incidence of 

drug use in urban areas than total urban population.@' Distributions for juvenile programs, policing, or prison literacy are necessarily different. 

Per Capita Income-Distribution inversely related to income is a good reflection of incidence 

of crime between suburban and core city populations, without the degree of reporting errors encountered in using the crime rate. However, it 

does not provide a good surrogate for the incidence of crime occurring in rural areas compared 

to suburban and urban populations because crime 

rates are low in rural areas but so is reported income. For example, in 1989, the median household income for cities over 50,000 population was 

almost one-third lower that for suburban households and households in smaller cities, and it was 

almost 15 percent higher than for rural households?l However, the violent crime rate of 

1,208.3 per 100,000 population in cities over 

50,000 was more than three times higher than in 

smaller cities and suburban counties and six-anda-half times higher than in rural counties. (The 

comparative differences for total major crimes 

reported were 8,653.7, 4,358.1, and 2,030.8 respectively.) Even more dramatic comparisons 

could be made by breaking out just those cities 

with populations over one million, which had 

crime rates of 2,057.9 for violent crime and 

10,149.6 for all major crimes reported in 1989,82 as 

shown in Figure 7-2. 

Crime Rate-Distributionbased on crime rates is 

a potentially good reflection of relative need, ex- cept that it is prone to reporting errors. Crime 

rates reflect reported crime, and residents in 

high-crime areas are less apt to report minor 

crimes because of lack of police response. Further, the FBI's Uniform Crime Report, which is 

the standard for reporting crime rates nationally, 

Figure 7-2 

Comparisons of Reported Major (UCR) Crimes, Violent Crime Index, and Median Family Income 

Relative to National Averages for Major Cities, Suburban Counties and Small Cities, and Rural Counties, 1989 

Violent Crime 

Median Family Income 

Major Cities Cities Small Cities Rural 

1 million + 50,000 + Suburban Counties Counties 

Source: ACIR compilation from U.S. Department of Justice, Federal Bureau of Investigation, Uniform Crime Reports, 1976-90; 

and U.S. Department of Commerce, Bureau of the Census, Money Zncome of Households, 1988 and 1989. 

U.S. Advisory Commission on Intergovernmental Relations 179 
W 

does not include drug arrests, which are having a 

heavy impact on most criminal justice agencies. 

Finally, reported crime rates may be inflated by 

recording multiple charges rather than the most 

serious charge. 

Violent Crime Rate-Distribution based on reported violent crime provides a better reflection 

of major prison, jail, court, prosecutor, and public 

defender resource demands than do total UCR 

statistics, as well as neutralizing the tendency not 

to report less serious crimes in low-crime localities. This measure is still susceptible to system reporting errors, and it does not include the impact 

of drug arrests. 

There are numerous variations in the way in which 

these factors have been combined in formula grants. Good 

staff analysis can assist in providing the right formula to 

carry out clearly articulated policy. Frequently, however, 

intergovernmental disputes reflect philosophical disagreements as much as they do technical problems because legislators and chief executives often try to achieve 

other goals besides supporting criminal justice expenditures. 

For example, Minnesota’s Community Corrections 

Act subsidy formula, last changed in 1975, gives equal 

weight to county per capita income, taxable value, expenditures for correctional purposes, and county population 

aged 6 though 30 (State Code 401.10). This formula is as 

much a tool for equalization under general revenue sharing as it is for funding criminal justice needs. Therefore, it 

is criticized by criminal justice officials in those counties 

where the percentage of funding falls below the county’s 

percentage of serious crimes reported. They particularly 

criticize its generosity to high-growth suburban developments, which have many children and a low real estate tax 

base but little crime.83 

Does Funding Recognize 

Criminal Justice Responsibility? 

At the heart of the Minnesota formula dispute is the 

local claim, which has been heard increasingly as budgets 

have gotten tighter, that the state is ultimatelyresponsible 

for the quality of criminal justice within its borders. Under 

this reasoning, the only goal of a state formula should be 

to determine criminal justice needs and help fund them. 

This contention has as many intergovernmental implications for the basic structure of the American form of criminal justice as the concern over the growing federal involvement in law enforcement, which was discussed at the 

end of the previous section. 

The problem is that, while federal law enforcement 

expansion is clearly a reversal of federalism and can be defended only as an expedient response to current problems, 

the division of criminal justice responsibility between the 

state and its localities was not clearly addressed in the 

Constitution. On one hand, all responsibility can be argued to lie with the state, because localities are creatures 

of the state, and localities arrest, detain, try, and sentence 

criminals under state law. On the other hand, it can beargued that the American system was established in the tradition of local law enforcement, with county responsibility 

for operating and financing local jails dating back to 13th 

century England. 

Pragmatic considerations are no more definitive. A 

state system of criminal justice administered locally can be 

argued as convincingly to require full state funding of the 

local administration as to require local funding in order to 

preserve autonomy and local priorities in administration. 

In the absence of compelling intergovernmental theory, 

the level of state support for local criminal justice activities has been left to the politics of the 50 states. 

Over the last two decades, the trend has been to increase state funding. The first reason for increased state 

criminal justice funding was the success of court reform 

advocates in the 1970s in pushing for increased professionalism and equal standards of justice. Local courts were replaced with unified state court systems in well over half of 

the states. Even in those states where local concerns about 

diversity and community values have prevented state 

court unification, local fiscal stress has led to more state 

funding. In these states, state aid takes the form of cost 

reimbursements to avoid significant state control of court 

admini~tration.~~ Theprinciple that the state should take 

responsibility for court services also led many states to begin paying the salaries of prosecuting attorneys and to support indigent defense services. 

The second factor leading to increased state criminal 

justice funding stemmed from court orders and federal 

mandates relating to conditions of confinement, including 

separation of juvenile populations, square footage standards for jail cells, out-of-cell requirements, and employee qualifications. Although localities have had to fund 

the majority of these improvements, most states have accompanied state requirements with technical assistance 

and some degree of state funding. 

Finally, in the 1980s, the third factor that has led to a 

substantial increase in state criminal justice funds going to 

localities has been the inability of state prison systems to 

house all of their sentenced inmates. Prison overcrowding 

has resulted in three types of state formula-based funding 

for localities-per diem payments, community sanctions, 

and construction assistance-and has made corrections 

aid to local governments the fastest-growing area of state 

aid. In fact, the previously noted 294 percent increase in 

state correctional aid to localities was substantially more 

than the 164.9 percent increase in local correctional costs 

between 1980 and 1987.85 

Nevertheless, state aid still averages less than 20 percent of the local cost of Therefore, significant tension exists in most states for the state to do more. 

In particular, it seems that the more a state has taken 

funding responsibility for court services, the more pressure there is to increase state support for jail costs and juvenile detention. From the state’s point of view, this pressure becomes a matter of tough choices between 

competing claims on limited funds. The following news ac- count of one state’s dilemma is indicative: 

[Legislators] said it is unlikely that the financially 

strapped state will take over the circuit courts in 

180 US. Advisory Commission on Intergovernmental Relations 
the near future. “This year, I don’t see how it can 

be-we’re already being pressed to take over the 

$40 million a year job of running the [Baltimore] 

city jail, a bailout [the governor] linked to his proposal to end the $38 million in aid the state pro- vides annually for the city police force.”*’ 

Looming within this climate of greater pressure for 

state funding of all local criminal justice programs is the 

fact that state correctional spending has increased even 

faster than any other element of the system. Given that 

prisons are the potential end result of all other criminal 

justice spending, state officials are beginning to see the 

need for a more thorough consideration of the total impact on the criminal justice system of responding to county 

and city demands for assistance. This change in philosophy 

will be explored in the final chapter of this report. 

The Politics of Funding 

and the Demographics of Crime 

The first rule of legislative success is counting to 51 

percent. Even though the power of legislative seniority or 

the influence of executive leadership can cause votes to 

line up more readily, the basic question is still: Will a majority of the legislators support the proposal? The larger 

the common interest, the easier it is to achieve a majority. 

Two aspects of criminal justice, unfortunately, combine to 

make it politically difficult to achieve majority agreement 

to allocate monies to where the need is greatest. One is 

the balkanization of criminal justice activities; the other is 

the urbanization of crime. 

What were seen as necessary checks and balances 

during the founding the American criminal justice system 

can inhibit its ability to achieve comprehensive budget at- tention today. Municipal governments account for 29 per- cent of the funds spent on criminal justice, but over 80 percent of this is spent on police. States spend 36.5 percent of 

the criminal justice dollar, but over half is spent on corrections. County governments account for 20.9 percent of expenditures, and it is split almost evenly between policing, 

jails, and court-related activities. Finally, in the typical local 

government structure, the more urbanized the county, the 

less it is apt to have commensurate responsibility for policing 

as its constituent cities take on greater policing responsibility. 

This structure means that intergovernmental funding 

battles seldom occur along simple urban versus rural lines. 

First, the states and the counties are more apt to be allies 

in lobbying the Congress for general criminal justice 

spending, while the core cities focus almost exclusively, 

both in Congress and in state legislatures, on more support for police functions. 

Second, in dividing up the state or federal budget pie, 

the priority given to winning these funding battles versus 

meeting other program needs is based on still another 

grouping of interests. Governmental units of any type that 

have large urban core populations are apt to be allied in 

looking for increased intergovernmental anticrime funding against governments dominated by suburban and rural 

interests that may see intergovernmental funding of 

schools or transportation as more pressing. This second 

grouping of allies is particularly significant because the 

priority given an issue is often more important than the 

merits of the issue itself, particularly within state legislatures that must operate within balanced budgets. 

Therefore, while census counts show that urban voters outnumber rural voters, this seldom impacts the politics of criminal justice funding because core-city dwellers 

constitute a minority of the urban count.S8 This makes 

those who are directly affected by the criminal justice 

needs of the inner cities a distinct minority in state legislatures or in the Congress. Adequate funding must depend 

on other legislators being convinced that shifting tax reve- nue from their constituents into inner-city criminal justice 

programs is in their interest. 

The more pragmatic arguments advanced for provid- ing increased state funding to help inner cities provide 

criminal justice services include: 

Cost Savings-The less crime deterrence there is 

in the core cities, the more state taxpayers will 

have to pay in prison costs. For example, Baltimore City is the sentencing jurisdiction for over 

half of Maryland’s prison inmates, and it generates 70 percent of its juvenile cases,Sg even though 

the city comprises only 15 percent of the state’s 

population. Comparable ratios would be true for 

many cities, particularly those with even higher 

violent crime rates, such as Atlanta, Newark, St. 

Louis, Detroit, Chicago, New York, Los Angeles, 

Boston, Dallas, and Charlotte.go 

Safety-If criminals and crime syndicates are allowed to go unchecked, they will expand their ac- tivities into neighboring jurisdictions. The more 

clogged jails and court services become, the less 

deterrence police activity will have. 

State Economic Development-Most large cities 

represent a flagship for tourist interest and for in- ternational investment in the state. The perception that the most well known city in the state is 

unsafe may color outside perceptions of the rest 

of the state. 

Philosophical and humanitarian arguments that the 

state government should help fund the criminal justice 

needs of urban core areas are harder to encapsulate. Essentially, they rest on principles of equal access to justice 

and on breaking the cycle-at least for a new generationof joblessness, poverty, family dysfunction, and crime. 

Indeed, poverty combined with the heightened opportunity for crime in a densely populated setting most clearly 

delineates the intergovernmental funding challenge. 

Crime is concentrated in urban cores, and the cities and 

counties that absorb the heaviest impact of crime typically 

have lower local tax revenues, because of unemployment 

and business flight, to apply to a significantly higher need 

for criminal justice services. Specifically, in 1989, the average per capita expenditure for police in cities with more 

than one million people was over 50 percent greater than 

the average for all cities, or $122.82 compared to $81.63.9l 

In addition, with over one-third more arrests in cities than 

in suburban areas and over 80 percent more than in rural 

U.S. Advisory Commission on Intergovernmental Relations 181 
areas, the burden of urban counties in bearing jail and court 

costs is also significantly greater than for other counties. 

Whether major cities and urban core counties will receive extraordinary intergovernmental assistance to offset 

the unequal impact of crime on their budgets is becoming 

a more critical question. As noted in Chapter 1, the number of impacted ghettos (as measured by rates of male unemployment, welfare dependency, female-headed households, and school dropouts) in Philadelphia, Chicago, 

Baltimore, and other large metropolitan areas has increased significantly?* This is creating even greater disparities between governments in their ability to fund and in 

their need to fund criminal justice services. 

With only slight rewording, most of the considerations 

just outlined for providing additional state assistance to 

major cities and urban core counties could be applied to 

providing federal assistance. However, the political considerations differ significantly. Most important is the fundamental difference in America’s constitutional system of 

the state and the federal role in criminal justice. Government theory can be used to support state assumption of responsibility; constitutional theory argues against an everexpanding federal role. 

As noted, since Prohibition, federal involvement in 

criminal justice has increased substantially from the extremely limited role envisioned in the Constitution. National political campaigns, however, did not begin to focus 

on “fighting crime in the streets” until the 1964 presidential ~ampaign.9~ Presidential and congressional attention 

to crime accelerated in the 1980s, with the enactment of 

five anticrime bills between 1982 and 1990. These bills 

were notable for increases in federal criminal penalties, 

many of them mandatory, and for the absorption of numerous state criminal acts as potential federal crimes. 

This federal action placed considerable political pressure 

on state officials to enact similarly tough sanctions. 

In return, state and local officials alike have exerted 

their own pressure on federal officials to fund local and 

state criminal justice programs, at least in part out of frustration that federal officials can gain political credit for being tough on crime and then escape the budgetary consequences. They point to the fact that federal expenditures 

for criminal justice can be funded by deficit spending or 

they canbe limited by not acceptingfederal jurisdiction for 

crimes that can be prosecuted under either state or federal 

laws. State and local officials do not have these options. 

Whatever the public expects from any federal anticrime 

legislation will be paid, for the most part, from state and 

local budgets because the federal criminal justice system 

handles only about 6 percent of all felony ca~es.9~ 

Within this attempt to link political credit and consequences, there are two camps. Governors, state legislators, and county officials usually are allied in support of a 

federal funding approach that canbe directed to meet the 

needs of the total criminal justice system as it differs from 

state to state, while mayors and city officials argue that 

substantial funding should go directly to cities. The cities’ 

line of reasoning combines the predominance of crime as a 

city problem and the assertion that police are the first line 

of defense with the political appeal of the higher public 

trust in the effectiveness of police than courts or corrections to deal with crime. 

Some cities also have claimed that one reason they 

have not received an appropriate share of the federal 

block grants funneled through the state is that they cannot 

meet the 25 percent match requirement due to the depleted tax base associated with their high crime rates. 

Whether this is any more true of the major cities than of 

their urban counties may be debatable, but the argument 

does raise another basic issue in intergovernmental funding: grantsmanship. The more that federal or state governments believe there is a need to control state or local 

government programming and budgeting decisions, the 

more intergovernmental funding becomes vulnerable to 

providing assistance to those who are already closest to the 

goals set and who are, therefore, ready to respond. 

If conditions are not kept to a minimum, then formula 

funding begins to serve the same purpose as project 

grants: to promote change rather than intergovernmental 

burden sharing. There is a role for both in America’s federalist system, but if the goal of each funding initiative is 

not clearly delineated, it may not be achieved. 

Finally, even in a debate that is cleanly focused on the 

need for intergovernmental burden sharing, which burdens end up being shared also establishes a policy direction. The disagreement between the states and counties 

versus the cities regarding funding the total criminal justice system versus the police is not just a fiscal decision as 

to which units of government receive more funds. It can 

produce major system impacts, which will be taken up in 

the next chapter. 

Similarly, broader debates between prevention and 

law enforcement underlie almost every state or federal 

criminal justice funding decision. For example, the federal 

war on drugs has been criticized for its emphasis on law 

enforcement ($7.8 billion of the $9.5 billion appropriated 

in 1990),95 even though, of the $2.2 billion in formula 

grants to state and local governments, $1.7 billion was for 

treatment and 

SUMMARY 

Figure 7-3 presents another picture of data, first presented in Chapter 1, on how the upward spiral of criminal 

justice spending has affected state, county, federal, and 

municipal governments. It underscores the pressure to 

find additional sources of revenue. Working with program 

managers, it is possible for general government officials to 

realize increased revenues from many offenders in ways 

that augment the goals of criminal justice sanctions and 

that gain additional public support to meet unfunded 

needs. Privatization, efficiencies, and shared resources 

also are avenues by which to gain public acceptance of the 

remaining tax burden that must be borne. However, each 

of these four avenues has more potential to produce program improvements than to provide budget relief. 

182 U.S. Advisory Commission on Intergovernmental Relations 
Figure 7-3 

Total Justice Expenditure* by 'Qpe of Government, 1973-1991 

28 

0 Federal 

State 

I County 

Municipal 

'"1 

8 

4 

No 

Data 

Available 

1973 1976 1979 1982 

0 

1985 

Years * Includes direct and intergovernmental. 

Ir* Based on straight line projection of growth from 1988 to 1990. 

iource: U.S. Department of Justice, Bureau of Justice Statistics, Justice ExpeLfures arid Enip~ ~, 

1988 1991** 

ynient in the US., 1984-1 992. 

Without significant own-source revenue relief forthcoming, intergovernmental funding of criminal justice expenditures becomes a fertile field for debate. County officials can cite state mandates-from jail standards to 

sentencing legislation-as justification for increased state 

funding. States may reply that they have shouldered their 

burden by pointing to sustained increases in state funding 

of local court and jail programs, which have surpassed the 

rate of local increases. Both states and counties can turn 

to the federal government to back up tough federal anticrime legislation by helping defray the resulting correctional and court system impacts borne by state and local 

governments. Major cities and counties, on the other 

hand, make the case that increased law enforcement funding is needed predominately in core urban areas, where 

crime is highest. 

Shaping funding legislation to carry out any of these 

claims of intergovernmental financial responsibility is difficult. The first question that needs tobe openly debated is 

whether the funding goal is to assist all units of government to fight crime more effectively or to direct the funds 

to localities where the impact of crime is greatest. Because 

the incidence of crime is related to a combination of factors-such as age demographics, unemployment, number 

of individuals in poverty, and population densities-block 

grant funding formulas that reflect only one or two factors 

may direct funds to localities that are less affected by 

crime. Using categorical grants, on the other hand, raises 

concerns about whether the targeted program has an impact on other criminal justice functions that are not 

funded, whether the program will evolve into a mandate, 

and whether the program requirements are relevant to local conditions. 

In the heated debate produced by funding pressures, 

there has been little discussion of how the checks and balances of America's criminal justice system might be compromised by increased central funding and control. During the 1960s and 1970s, the drive behind expanded state 

and federal services, funding, and mandates was to 

achieve increased professionalism and thereby enhance 

equal justice. With escalating costs, caseloads, and overcrowding, the drive has shifted to an emphasis on increased efficiency. 

Because intergovernmental concerns increasingly are 

budgetary, general government officials are driving policy 

change to a much greater degree than when moves to 

achieve equal access to justice came more from within the 

law enforcement and justice communities. As discussed in 

the next chapter, open dialogue, which includes both general government and criminal justice officials, is important 

to ensure that community standards, responsiveness, and 

priorities-as established by local units of government 

from town councils to each state capital-are not overwhelmed in the drive for increased funding and efficiency. 

U.S. Advisory Commission on Intergovernmental Relations 183 
NOTES 

US. Advisory Commission on Intergovernmental Relations, 

Medicaid: Intergovernmental Trerids and Options (Washington, 

DC, 1992). 

%4 New Way for Inmates to Pay Debt to Society,” Wahington 

Times, April 4, 1991. 

Stover Clark, “Drunk Drivers Crowd Pennsylvania County 

Jails,” County News, September 12, 1988. 

’Executive Office of the President, Office of National Drug 

2Cumbey v. State, 699 P.2d (1985). 

Control Policy, National Drug Control Stmtegy (Washington, 

DC, 1990). 

‘ U.S. Department of Justice,National Institute of Justice (NIJ), 

Recovering Correctional Costs through Offender Fees (Washing- ton, DC, June 1990). 

Ibid. 

Ibid. 

Ibid. 

lo Ibid. 

l1 Ibid., p.33. 

l2 Ibid. 

l3 Ibid. 

l4 Ibid. 

’’ Ibid. 

l6 Ibid. 

l7 Virginia Acts of Assembly, 1988, House Joint Resolution No. 

26, p. 2104. 

l8 W John Moore, “Paying for Punishment,” National Journal, 

March 14, 1987, pp. 612-617. 

l9 Office of National Drug Control Policy, National Drug Control 

Strategy. 

2o Ron Zimmerman, “Dollars and Sentences: The Fiscal Seduc- tion of the Courts,” State Court Journal 14 (Fall 1990): 19-23. 

21 Crime and Punishment: Tlie Public’s view (New York The 

Edna McConnell Clark Foundation, 1987). 

22 U.S. Department of Justice, Bureau of Justice Statistics (BJS), 

“Recidivism of Felons on Probation, 1986-89,” BJS SpecialReport (Washington, DC, February 1992). 

23 County of Los Angeles, Department of Probation, “1990 Pro- posed Restitution Center” (unpublished). 

24 Office of National Drug Control Policy, Nafional Drug Control 

Strategy. 

25 Joan E. Jacoby, Heike Gramckow, and Erica Price, Survey of 

Asset Forfeiture Programs in 1990 (Washington, DC: Jefferson 

Institute for Justice Studies, June 1991). 

26 U.S. Department of Justice, Executive Office for Asset Forfeiture, Tlie Attoniey General’s Guidelines on Seized and Folfeited 

Propas (Washington, DC, July 1990). 

27 Jacoby, Gramckow, and Price, Survey of Asset Forfeiture Pro- grams in 1990. 

28Michael Crane, “Creating Cash Flow Problems for the Co- caine Kings,” Your Virginia State Trooper Magazine (Summer 

29 Robert E. Tomasson, “21 States Imposing DrugTax and Then 

Fining the Evaders,” New Yolk Times, December 23, 1990. 

30 “Capital Clips: Drug Taxes,” Midwestenier, July 1991. 

1990): 33-35. 

”Robert OHarrow, “Plan to Ease Loudoun Jail Crowding Is 

32C~nfidential interviews, 1990. 

33 Bill Kemp, “Prison Overcrowding: A Crisis Inviting Disaster,” 

34 “Oregon’s Fight against Drugs.” CSG Issue Backgrounder, 

35 Interview, September 1990. 

36Deanna Hodgin, “Private Crime Fighting for a Profit,” Insight 

7 (January 1991): 44-45. 

37Todd Mason, “It’s a Bust: For-Profit Jails Hold No ProfitsNor Any Inmates,” Wall Street Journal, June 18, 1991. 

38Nathan McCall, “Little Fat May be Found in CorrectionsBudget,” Wahington Post, December 30, 1990. 

39 BJS, Report to the Nation on Crime and Justice (Washington, 

DC, 1988), p. 63. 

40 Intergoventmental Perspective 17 (Winter 1991). 

41 BJS, “Drug Enforcement by Police and Sheriffs’ Departments, 

42 Ibid. 

43 “Oregon’s Fight against Drugs.” 

Crowded Out,” Wahington Post, January 5,1991. 

Illinois Issues 15 (August/September 1990): 27. 

Spring 1990. 

1990,” BJS Special Report (Washington, DC, May 1992). 

“Draft Submission on LECC and Victim-Witness Activities,” 

Executive Office of U.S. Attorneys LECCNictim-Witness 

Staff, April 5, 1991. 

45 National Governor’s Association, letter to Speaker Thomas 

Foley, July 26, 1991. 

46 George Camp and Camille Camp, TIre Corrections Yearbook: 

Adult Prisons and Jails (South Salem, New York Criminal Jus- tice Institute, 1990). 

47 Michael 3. Quinlan, “Meeting the Challenges of the Federal 

Bureau of Prisons,” The Third Branch 22 (December 1990): 

10-11. 

48 Interview with Wayne Huggins, director, National Institute of 

Corrections, U.S. Department of Justice. 

49 Office of National Drug Control Policy, National Drug Control 

Strategy. 

Metropolitan Washington Council of Governments (COG) 

and Metropolitan Washington Court Administration Conference, Drugs and the Judicial Reqonse: Drug Awareness Seminar 

for Judges in the Metropolitan Wahington Region: Evaluation 

Report, by Ronald 1. Weiner (Washington, DC Metropolitan 

Washington Council of Governments, January 1990). 

51 Federal Courts Study Committee, Report, Volume 11, “Report 

of the Special Committee, Federal Court Section, Allegheny 

Bar Association (Philadelphia, 1990), Item B, p. 7. 

52Federal Courts Study Committee, Report. 

53 Ibid., p. 35. 

54 U.S Department of Justice, Office of the Attorney General, 

Attorney General’s Summit on Law Enforcement Responses 

to Violent Crime: Public Safety in the Nineties, March 3-5, 

1991, p. 36. 

55 “BJS National Update,” April 1992, p. 2. 

56Federal Courts Study Committee, Report, p. 141. 

57 Donald L Reisig and Richard J. Liles, “States Must Lead Local 

Efforts,” Journal of State Government 63 (Spring 1990): 52-53. 

Daniel L. Skoler, Organizing the Non-System (Lexington, Mas- sachusetts: D.C. Heath, Lexington Books, 1977), p. 161. 

59 ACIR computation from BJS, Justicemenditure and Employ- ment in the US., 1971-79 (August 1984), and Justice Erpenditure and Employment, 1990 (September 1992). 

184 U.S. Advisory Commission on Intergovernmental Relations 
6o ACIR computation from BJS, JusticeEapenditure and Employ61 BJS, Justice Eqenditure and Employment in the U.S., 1988 (Au62 U.S. Department of Justice, “National Survey of Law Enforce- ment Agencies, 1987,” National Archive of Criminal Justice 

Data Bulletin, Winter 1989. 

63 Martha A. Fabricius and Steven D. Gold, State Aid to Local 

Governments for Corrections Programs (Denver: National Con- ference of State Legislatures, April 1989). 

ment, 1990. 

gust 1991). 

64 Ibid. 

65 State of Oregon, Criminal Justice Services Division, “Governor’s Drug Control Package” (Salem, May 1990), p. 3. 

66 Jonathan Walters, “Cops and Courts Are Turning to High- Tech Tools,” Governing 3 (October 1990): 23-26. 

67 U.S. Office of Management and Budget, Budget of the United 

States Government Fiscal Ear 1992 (Washington, DC, 1991), 

Part Seven, Table 12.3. 

NIJ, “Drugs and Crime, 1989,” Drug Use Forecasting Annual 

Report, 1989 (Washington, DC, June 1990). 

69 Office of National Drug Control Policy, National Drug Control 

Strategy. 

70 Report, National State-Federal Judicial Council to the Con- ference of Chief Justices (January 1991) and the Judicial Conference of the United States (March 1991). 

71Victor E. Flango, ‘Administrative Cooperation between State 

and Federal Courts” (Williamsburg, Virginia: National Center 

for State Courts, April 1992). 

72 NIJ, NIJConfererice on Intermediate Sanctions, November/Deember 1990. 

73Executive Office of the President, Office of National Drug 

ContrQl Policy, White Paper Federal Drug Grants to States 

(Washington, DC, December 1990). 

74NIJ, Research Plan: 1991 (Washington, DC, May 1991). 

75 National Conference of State Legislatures, Federal Update, 

April 26, 1991. 

76 Justice Norman S. Fletcher, “Indigent Defense Funding: Can 

the Solution Come from Anywhere Other than the Georgia 

General Assembly?” Geoigia County Goveniment 44 (March 

1992). 

77 “State Pushed on Death Penalty Funding,” CaIifomia County, 

MayIJune 1992. 

78 Susan E. Martin, Lee B. Sechrest, and Robin Redner, The Rehabilitation of Criminal Offenders: New Directions for Research 

(Washington, DC: National Academy Press, 1981), pp. 1-32. 

U.S. General Accounting Office (GAO), Drug Treatment: Tar- getingAid to States Using Urban Population as Indicator of Drug 

Use (Washington, DC, November 1990). 

81ACIR computation from U.S. Department of Commerce, Bu- reau of the Census (Census), Money Income of Households, 

Families, and Persons in the United States: 1988 and 1989 

(Washington, DC, July 1991), p. 3. 

82ACIR computation from US. Department of Justice, Federal 

Bureau of Investigation, Uniform Crime Reports, 1990 (Wash- ington, DC, August 11, 1991), pp. 150-151. 

83 Memorandum from Michael Cunniff, Hennepin Bureau of 

Community Corrections, to Vivian Watts, December 21,1990. 

84 Intergovernmental Penpective 17 (Winter 1991). 

85 Fabricius and Gold, State Aid to Local Governments for Correc86 Ibid. 

87 Fern Shen, “Maryland Chief Judge Wants Consolidation,” 

Wmhington Post, January 22, 1991. 

88 Census, Money Income of Households, Families, and Persons in 

the United States: 1988 and 1989, p. 3. 

89 Russell Committee, Bar Association of Baltimore City, The 

Drug Crisis and Underfunding of ihe Justice System in Baltimore 

City (Baltimore, December 1990). 

90 BJS, Sourcebook of Criminal Justice Statistics, 1990 (Washington, DC, 1990), p. 368. 

911bid., p. 41. 

92Mark Alan Hughes, Poverty in Cities (Washington, DC: Na93 Skoler, Organizing the Non-System, p. 22. 

94 ACIR computation from Sourcebook of Criminal Justice Statis- tics, 1990, pp. 479 and 516. 

95 Office of National Drug Control Policy, National Drug Control 

Strategy. 

96 Federal Funds Information for States, Estimated Anti-Dnrg 

Abuse Allocations for 1990: Issue Brief 89-18 (Washington, DC, 

December 23, 1989), p. 3. 

79 Ibid., pp. 1-10. 

tions Programs. 

tional League of Cities, 1989). 

U.S. Advisory Commission on Intergovernmental Relations 185 
186 U.S. Advisory Commission on Intergovernmental Relations 
8- PLANNING AND COORDINATION 

n f an elephant is a horse designed by a committee, 

then the criminal justice system c&ld be described as a 

herd of elephants. Criminal justice officials, each dedicated to a discrete mission of arrest, prosecution, defense, 

adjudication, or corrections, are not only isolated but often feel that they must not bias their judgment by looking 

at the whole. Thus, the race horse is given a trunk, sturdy 

legs, and tusks. State, county, municipal, and federal general government elected officials in turn have each tried to 

create and recreate an improved model that has sharper 

tusks to better protect the public, or sturdier legs to support more effective sanctions, or a more piercing trumpet to 

serve as real deterrence. Thus, the creature became a herd. 

No group of officials intended that the creature grow so 

big or consume so much. General government officials are 

alarmed at the increasing budget impact of this growth, 

and criminal justice officials are frustrated with bloated 

workloads and the resulting compromises to their missions. This final chapter discusses how officials are coping 

with these impacts and the measures they can institute to anticipate and control rather than simply react to change. 

Three main goals are addressed: 

= Integrating planning into the mainstream of administration; 

Focusing individual frustrations into system coordination; and 

Fostering the political will and public understanding to achieve the policy changes that emerge from 

the planning and coordination efforts. 

w 

Within each of these arenas there are numerous pragmatic concerns, which must be addressed to carry out 

the overall goal. 

In planning and budgeting, determining who is responsible becomes key, followed by the need to deal with 

personnel, forecasting, and fiscal demands. Managing 

these budget issues inevitably underscores the need for 

coordination to develop relevant and accessible data, 

manage work flows, control system impacts, and establish 

coordinating bodies with the requisite credibility, authority, and commitment. Finally, using the results of planning 

and coordination initiatives to establish an informed dialogue and to shift public opinion brings the discussion full 

circle to encompass the underlying elements of isolation 

and fear that have been noted throughout this report. 

One common theme emerges as essential to achieving any of these goals: the need to determine whether the 

system is to be a race horse, a work horse, a charging rhino, 

or an imposing elephant. Each has its merit, but they are 

not interchangeable, nor are their support needs the same. 

Clear articulation of goals is essential to focus staff effort, 

engage non-criminal justice agencies, establish budget priorities, and influence intergovernmental supprt. 

General government elected officials and criminal 

justice officials in each local and state system need to reason together to reach consensus about the balance to be 

achieved between deterrence, arrest, incapacitation, punishment, and rehabilitation. There is no right answer; 

there are only unproductive approaches to different goals. 

PLANNING AND BUDGETING 

Responsibility for Planning 

The relationship between setting policy, planning, 

and budgeting varies significantly among criminal justice 

functions. Budget decisions control most planning and 

policy decisions in the case of police, courts, most juvenile 

programs, and probation/parole. If budget requests are 

not funded, internal policy adjustments must be made. In 

contrast, because basic prisoner costs must be met, policy 

drives a major portion of prison and jail budgets. However, 

the policies are not set by prison or jail administrators; 

they are the sentencing and arrest policies set by the legislature, police, prosecutors, and judges. 

In addition, all officials-general government elected 

officials, budget administrators, and every criminal justice 

administrator-share the planning challenge of determining when the mission of each agency will be significantly 

compromised if additional funding is not provided. Each 

of these groups of officials has a different prime interest, 

however: 

U.S. Advisory Commission on Intergovernmental Relations 187 
Elected officials must focus on ultimately public 

priorities; 

Budget administrators focus on sound financial 

management; and 

Criminal justice administrators focus on effective 

programming. 

No one planning approach or mechanism can accommodate all of the factors noted above. There is a need for 

criminal agencies to engage in long-term program and administrative planning. There is a need for the chief executive to be able to prepare a budget using coordinated data 

to forecast and track growth. There is a need to be able to 

inform all elected officials and other policy leaders of sys- tem impacts and demographic trends. There also may be a 

need for the legislature to be able to confirm the budget 

and growth assumptions of the executive budget and/or 

agency submissions. 

The need for criminal justice planning, with its policy 

coordination and budget oversight, was recognized in- creasingly during the 1980s. Such calls for planning grew out 

of the desire to control, or at least predict, extraordinary 

growth, rather than being in a constant state of reaction. 

In part, because this recognition of the need for pro- active planning tools came from within and, in part, because of the weakness of LEAA-fostered planning efforts 

in the 1970s, a common proviso from the 1980s has been 

that planning must be close to the source of policy control. 

For example, in a National Governors’ Association 

(NGA) handbook, the first questions new governors are 

advised to ask in criminal justice is, “Who in the state is 

responsible for developing the criminal justice policy information base? Does this individual or agency have direct 

access to the governor?”’ The Federal Courts Study Committee focused on the same basic issue in its observation 

that long-range planning “must be a part of the mainstream of the judiciary’s governing process, rather than an 

isolated, abstract function.”2 

One reason why planning is not integrated with program and budget administration stems from the nature of 

government budget cycles. Agencies must begin preparing 

requests for the next year before they know the current 

year’s funding levels. In this climate, it is easy for planning 

efforts to become detached from the actual situation of 

the agency. The less relation planning exercises have to 

gaining budget resources to carry out the agency’s program, the less importance top managers and other key 

players will give to it, resulting in the planning effort becoming even more detached. Under these circumstances, 

the planning effort becomes an obscure operation that 

only occasionally provides meaningful options or guidance 

for the agency. 

One key to countering the tendency for planning to 

slip out of the mainstream is clear recognition of the distinction between setting policy and providing policy research. The planning staff needs to focus on producing 

and/or compiling relevant data-criminal profiles, crime 

statistics, caseload trends, sentencing trends, demographic trends, etc.-that directly affect budget requirements or 

criminal justice agency operations. They need to identify 

budget or program decisions made by contributory sys- tems, such as hiring new police, instituting drug testing, 

extending court hours, installing an AFIS capability, or 

complying with a court order. They should have the responsibility for studying national data. The crucial step, 

then, is that the judgment that this information leads to a 

specific course of action must be made by the agency’s 

chief program administrators or the chief budget 

policymakers, not by the head of planning. 

Adanger in creating a separate planning agency or de- partment has been that its hierarchy begins to operate as if 

they were policymakers. Planners assume the role of recommending specific policies rather than facilitating policy 

decisions by those who have program responsibility. When 

this happens, significant operational issues may not be 

considered properly, and more importantly, the program 

operators who have not been involved in the consider- ations will have no ownership of the recommendation. 

Planning agency recommendations consequently are reduced to carrying only academic weight. 

While academically rigorous recommendations have 

value-as acknowledged in the discussion in Chapter 7 of 

the research sharing fostered by the U.S. Department of 

Justice-much more is needed to institute sound policy. 

For example, agency administrators must determine how 

internal management problems shape the way anemerging problem can be addressed. At the same time, the chief 

executive or the budget administrator may care little how a 

problem is addressed; they must be given compelling reasons why it must be addressed. Typically, they have been 

bombarded through the political process for changes in 

other program areas, while, except for police, there is seldom any citizen advocacy for the needs of the criminal justice system. The planning process needs to give them a 

perspective to weigh the seriousness of emerging criminal 

justice problems against needs in other program areas. 

Therefore, in order to keep criminal justice planning 

in the mainstream, it is necessary to establish a multifocused planning capability that has four elements: data development, agency planning, executivelbudget planning, and 

multi-agency coordination. Although this may necessitate 

multiple planning staffs to keep planning close to decisionmakers, it does not need to result in duplication of effort. 

For example, the data-gathering function should be 

established as a source of primary information that has 

multiagency impact. Budget planners and agency planners 

then may disagree, for example, over the validity of using a 

ten-year trend analysis of all felony convictions versus a 

five-year trend of violent crime convictions, but there 

would be no duplication of effort in developing the primary data base. There would simply be healthy debate and 

oversight as to how to apply the numbers. 

Surfacing such healthy debate can be regarded as an 

advantage of the multiple-focused planning necessary to 

keep planning close to decisionmakers. Agency planning 

can fall into a position of serving only the purposes of that 

agency and becoming bogged down in operational minu- tiae. Budget agency planning can become resource driven. 

Planning in an independent planning agency can become 

188 U.S. Advisory Commission on Intergovernmental Relations 
so theoretically exacting as to be impractical or irrelevant. 

Yet, good planning should be driven by each of those 

goals, being applicable, achievable within resource restraints, and able to be documented. 

In addition, a danger in having all planning focused in 

the executive-or in the “key arbiter of Executive authority, the Division of Budget”3 is that planning can become 

controlled to justify a pre-set political agenda rather than 

providing an unbiased basis for setting policy. Yet, as 

noted by Mark D. Corrigan, director of the National Institute for Sentencing Alternatives, adaptability and relevancy must be part of the planning process: 

The master planning concept is flawed for several 

reasons. None is more significant than the notion 

of a changing political dynamic. Much has been 

written about the instability of the political process. Issues of importance change. Decision makers and stakeholders change. Economic and so- cial conditions change. Such flux does not imply 

that a government cannot plan for the long-term, 

but rather that its approach must be more adaptive to shifting conditions and multiple force^.^ 

One way of blending adaptability with sound planning 

is to establish an executive and/or a legislative budgetary 

planning capacity but maintain the independence of data 

collection as a safeguard against distortion to reflect a political agenda. Solid information can serve to justify policy 

shifts advocated by elected officials, but it also can provide 

the basis for scrutiny of such policies. To serve the latter 

role, the legislature may find it necessary, either by statute 

or budget language, to guarantee the continued production of key documents, primary data bases, forecast models, and random sampling techniques, such as the Drug 

Use Forecasting (DUF) system. 

To summarize, the responsibility for long-range planning is not single focused. Long-range planning needs professional planning staff support, but this support needs to 

feed into, not be allowed to evolve independently of, 

policymakers and program managers. With relevant data, 

the chief elected executive, the legislature, the budget office(s), and chief criminal justice officials and managers 

can engage in healthy debate about policy choices that will 

best balance public safety, budget resources, effective administration, and program results. 

Planning and Budgeting 

in Times of Explosive Growth 

Ongoing growth in the criminal justice system has given new importance to five elements of budgeting: (1) program evaluation, (2) personnel, (3) forecasting, (4) intergovernmental entitlements, and (5) facility master 

planning. Program evaluation has been discussed in other 

chapters, where it was noted that rigorous evaluation in 

criminal justice often has been limited by who is selected 

to participate in the program, lack of control over other 

behavioral influences, and underfunded efforts. Master 

planning for facility expansion also was discussed, and it 

was noted that facility master-planning requires three to 

five years lead time before the facility can be brought on 

line, depends on good analysis of the populations to be 

housed, and must have broadly based input from all elements of the criminal justice system. Therefore, the following discussion will focus on the remaining three elements of budgeting in times of rapid system expansion: 

personnel, forecasting, and entitlements. 

Personnel 

The starting point for dealing with personnel issues 

stemming from rapid growth is to determine whether staff 

increases have kept pace with the number of offenders 

that each element of the criminal justice system is charged 

with handling. The focus study (page 190) provides specific 

comparisons of trends in criminal justice personnel 

growth. In brief, personnel growth has been highest in 

prisons and jails, where, over time, it has kept pace with 

the mushrooming numbers incarcerated. Probation and 

parole personnel increases have been only at about half 

the rate of prison and jail personnel, despite the fact that 

the number of offenders on probation and parole has increased along with those in prison or jail. While judicial 

and police personnel increases have been one-third the 

annual increases in prisoners or in jail personnel, these increases have been in line with the slower growth rate in 

arrests, which is the driving caseload indicator. 

After a jurisdiction determines the magnitude of personnel needs due to past budgeting decisions, the next logical step is to project what will be required due to future 

growth. However, for purposes of this discussion, forecasting will be taken up later, because it will have more significance if it is placed h the context of what has to be 

planned for, put in place, and funded to deal with personnel requirements, regardless of whether it is a backlog of 

needs or future needs that must be met. 

Personnel Recruiting. The first issue in personnel is 

obvious from the focus study: sheer numbers. This is especially true in corrections because corrections not only has 

the highest annual growth rate, it also has the highest personnel turnover. The 1990 turnover rate for prison officers was reported to be 14.46 per~ent.~ For probation officers, 60 percent of the states reported turnover rates of at 

least 10 percent: In contrast, the municipal police turnover rate is reportedly less than 5 per~ent.~ Therefore, 

general government officials should consider the need to 

support a continuous recruitment strategy and fund a 

year-around training capability. 

In addition, standard general government budgeting 

strategies may need to be examined. It is common to make 

use of “salary vacancy factors.” This justifies funds being 

cut from each agency’s budget based on the assumption 

that, because of turnover, an agency-specific percentage 

of authorized positions will be empty at any point in the 

year. Carrying out this assumption for prison and jail staffing, however, usually drives up overtime because few if 

any security posts can be left vacant. Therefore, if authorized personnel levels are not funded and filled through 

continuous recruitment, actual savings seldom are gained. 

In fact, budget policymakers and agency managers 

should look at strategies to keep prison and jail OffiCervaU.S. Advisory Commission on Intergovernmental Relations 189 
Focus 

Criminal Justice System Personnel Growth Comparisons 

Jails-In the five yearsbetween 1983 and 1988, the 52.9 percent increase in jail inmates was matched by a 54.3 percent 

increase in jail personnel. 

Average Annual Percentage Increases for Jails, 1983-1988 

Inmates 

Employees 

I I I I I 

- 10 -5 0 5 10 15 

State Prisons-The growth in state prison personnel has also been increasing at over 10 percent per year, as have 

prison populations. 

Average Annual Percentage Increases for State Prisons, 1987-1989 

Inmates 

Employees I I I 

-10 -5 15 

The growth rate between 1987 and 1989 for state prison inmates was 21.6 percent, while the number of state prison 

employees increased 18.9 percent. 

Federal Prisons -However, the growth in federal prison personnel has been significantly greater than the growth 

in inmates. 

The growth rate between 1987 and 1989 in federal inmates was 19.3 percent, and in federal prison employees, 35.7 

percent. 

Average Annual Percentage Increases for Federeal Prisons, 1987-1989 

Inmates 

Employees I I 

-10 -5 0 5 10 15 

Juvenile System-Likewise, the number of juvenile system personncl increased significantly more than the increase in 

juveniles in public facilities or in the number of juvenile arrests, which has been decreasing. 

Average Annual Percentage Increases for Juveniles, 1987-1989 

Detainees 

Arrests 

Personnel I I I I I 

-10 -5 0 5 10 15 

The growth in juvenile system correctional personnel was 15.1 percent between 1988 and 1990, while the number of 

juveniles in public facilities increased 4.9 percent between 1987 and 1989 and the number of juveniles arrested dropped 

16.7 percent between 1987 and 1989. 

Probation and Parole-In contrast, the number of personnel for probation, pardon, and parole has increased at only 

half the rate of the increased number of offenders placed on probation or parole. 

Average Annual Percentage Increases for State and Local Probation and Parole, 1985-1988 

Individuals 

on Program 

Personnel I I I I 

-10 -5 0 5 10 15 

The growth in total state-local probation, pardon, and parole personnel during the three years between 1985 and 1988 

was 11.5 percent, whereas the number of individuals on probation or parole increased 21.9 percent. 

190 US. Advisory Commission on Intergovernmental Relations 
Focus (cont.) 

Criminal Justice System Personnel Growth Comparisons 

Police and Courts - Police and court-related personnel growth has been significantly less than corrections personnel 

growth. While these personnel increases have kept pace recently with the growth in the number of arrests, they have 

fallen significantly behind the number of felonies prosecuted. 

Average Annual Percentage Increases for Police and Court Personnel, 1985-1988 

Arrests (1986-89) 

Felony Filings (1984-89) 

Police 

Judicial 

Prosecution 

Public Defense 

I I I I I I 

- 10 -5 0 5 10 

The three-year increase from 1985 to 1988 in police was 7.4 percent; judicial personnel, 8.3 percent; prosecution and 

investigative services, 9.3 percent; and public defense, 24.0 percent. The three-year increase between 1986 and 1989 in 

the number of arrests was 8.3 percent, but the increase in the number of felony case filings was over 25 percent. 

Ten-Year Comparisons 

Whether or not current staffing levels are adequate may be determined as much by whether there is an historic 

backlog of need as by whether recent staff increases have kept up with workload. Earlier comparisons for subcategories 

of correctional staffing used above are not available; nevertheless, comparing the broad categories of criminal justice 

activities is still informative. 

Average Annual Percentage Increase, Ten-Year Comparisons, 1979-1988 

Arrests 

Police 

Judicial 

Prosecution 

Public Defense 

Prison Inmates 

Correction Personnel 

(institutions & community)l I I I I I 

-10 -5 0 5 10 

From 1979 to 1988, there was a 21.9 percent increase in arrests, while personnel increases were: police, 17.1 percent; judicial, 13.7 percent; prosecution and investigative services, 21.8 percent; and public defenders, 38.5 percent. 

There was a 100.3 percent increase in state and federal prison inmates, while prison, jail, probation, and parole personnel increased 56.9 percent. 

Sources: US. Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics: 1989, pp. 82,83,91,584 

1990, pp. 91-93,569,604,607; JusticeExpenditure and Employment in the US.: 1985, p. 118; 1988, pp. xxii, 118; “Probation an( 

Parole, 1989,” BJS Bulletin, November 1990, p. 4. U.S. Department of Justice, Federal Bureau of Investigation, Uniform Crimt 

Reports: 1986, p. 165; 1987, p. 169; 1988, p. 172; 1989, p. 173. Court Statistics Project, State Court Caseload Statistics:Annua 

Report 1989 (Williamsburg, Virginia: National Center for State Courts, 1991). 

U.S. Advisory Commission on Intergovernmental Relations 191 
cancies to a minimum. As a first step, the chief executive 

or the budget chairman might call for an analysis of overtime. If it is excessive and if continuous recruitment strategies are not being used, then the agency should be directed 

to change recruitment strategies and develop other appropriate means to bring overtime under control. 

Personnel Staffing Analyses. On an opposite tack, because the staffing of designated security posts is a major 

factor in prison and jail budgets, budget officials need to 

assure themselves that all of the authorized positions are 

necessary. Budget staff and prison/jail officials need to engage in a mutually satisfactory procedure for analyzing the 

necessity for each security post. Once this security audit is 

complete, it should stand as the basis for planning and 

funding for future budgets. As noted under capital planning, such an analysis also is valuable in modifying the design of new facilities to save staffing costs. 

The fact that institutional staffing is driven by postspecific security is a major reason why prison and jail staffing recently has kept pace with the growth in sentenced 

felons while noninstitutional corrections staffing for probation and parole has fallen significantly behind. Although, initially, the inmate explosion could be handled by 

putting more offenders in the same space with little or no 

increase in staff, when space had to be physically expanded, so did staffing. Furthermore, it can be demonstrated 

physically that if a prison or jail post is not staffed, a security problem will be created. 

In contrast, the potential for increased criminal activity growing out of incremental increases in noninstitutiona1 corrections caseloads is not so easily demonstrated nor 

is there a physical trigger-enforceable in court-for 

when expansion must take place. The importance of adequate staffing to the success of alternative probation and 

parole sanctions, however, is a major policy issue, as noted 

in Chapter 4. 

Staffing ratios for police agencies, courts, prosecutors, and public defender offices also are subject to incremental increases. However, various types of politics may 

override this tendency. The politics of police personnel increases centers on the public's belief that police are more 

important than any other element of the criminal justice 

system in fighting crime. General government elected officials are the key to how big a role this type of political influence plays in budgeting decisions. 

In contrast, it is rare for general government elected 

officials to take the initiative in court-related staffing decisions. In fact, because many judges and prosecutors also 

are elected, they may be reluctant to advocate staffing increases, so that they can go before the electorate with a 

record of having controlled costs and growth in government. Another influence on court staffing is the politics of 

creating new judgeships and filling vacancies. These political strategies have been played out to both create and 

deny judgeships. Suffice it to say that court functioning 

can suffer, as exemplified by the fact that between 1988 

and 1991 it took an average of 502 days from the time a federal judgeship became vacant to when it was filled? 

Politics of whatever nature often result in reactive 

budgeting, carried out one year at a time. To establish a 

basis for proactive budget planning, general government 

officials can use the same approach taken in security-post 

audits of prison or jail staffing. For example, they can require documentation of how current staff spend their time: 

How much time do probation and parole officers or police spend on paperwork? Would 

up-dated data management equipment or 

lower paid staff for support functions be 

cost beneficial? 

How much time do police, prosecutors, and 

public defenders spend waiting for cases to be 

heard? Do court scheduling procedures need 

to be examined? Would on-line access to the 

status of each courtroom's docket be justified? 

What should be the balance between adding 

professionals-a new judgeship, assistant 

prosecutor, uniformed officer, etc.-and hiring 

paraprofessionals and other support staff? 

General government budget officials and the chief 

administrator of each criminal justice agency must then 

agree on appropriate measures to justify new positions 

and how those measures will be tracked. Measures of the 

need for staff increases could include many factors, such 

as growth in the general population, a given age cohort, 

reported crime, violent crime, total arrests, arrests for 

drugs and violent crimes, convictions, caseloads, or any 

combination of these. 

Although many astute administrators present their 

budget requests with this type of documentation, the important issue is to establish confidence between general 

government officials and criminal justice officials as to 

whether the appropriate information isbeing provided. As 

noted in Chapter 1, criminal justice data bases can be very 

confusing. Further, it is not uncommon for budget 

policymakers to have much less familiarity with these 

measure than they do, for example, with leading economic 

indicators. Finally, there is a climate of distrust that must 

be overcome. This distrust is born out of the feeling expressed by many officials that scare-stories are used to intimidate them? This distrust is matched, especially in corrections, by criminal justice officials who are convinced 

that their needs often will be ignored in order to fund 

more politically popular programs.'O 

Shared intergovernmental funding responsibility constitutes an additional reason to pursue preagreement on 

how staffing needs are to be measured. For example, it is 

common to have judges' salaries paid by the state, with 

support staff, equipment, and office facilities funded bylocalities. Therefore, lack of coordination for budget planning can be disruptive. For example, the additional judge 

approved by the state for the Baltimore City Circuit Court 

in 1989 received no funding from the city for necessary 

support staff, which amounted to $78,000. In addition, according to the Baltimore Bar Association, the new judge 

requires an additional prosecutor from the state's attorney's office, which also must be funded by the city." In 

192 U.S. Advisory Commission on Intergovernmental Relations 
Chatham County, Georgia, the circuit court judges sued 

to force the county to fund programs related to the effec- tive functioning of the judiciary. 

Personnel Training. Training new staff is often as important as the level of staffing, and sound budgeting based 

on planning can play a significant role. Especially in highgrowth departments, the more that budgeting decisions 

support a relatively stable stream of new hires, the better. 

As noted in Chapter 6, precipitous, often politically motivated, decisions to hire a large number of police at one 

time can be the source of long-term morale problems, if 

the available applicant pool is inadequate, new employees 

are not properly screened, or training is compromised be- cause of the extraordinary numbers that must be handled. 

Even in major prison systems where large numbers of 

new officers are routine, budget officials need to ensure 

that the training program is budgeted commensurate with 

current growth. This is especially important given that the 

quality of the applicant pool, typically, will not increase. 

Consequently, in times of high growth, training becomes 

even more critical, as exemplified by the following anec- dote: When a large group of prisoners at a major prison in 

Virginia became disruptive on Thanksgiving weekend in 

1989,80 percent of the officers on duty had worked for the 

prison system for less than one year. Because proper procedures were followed, the disruption was contained and 

ended without incident.12 

Finally, intergovernmental coordination may need to 

focus on the capacity of training programs administered by 

the state for local criminal justice personnel. This is espe- cially true if the training is provided by the state as a means 

to enforce standards. If the standards do not require train- ing by the state, then the state, government associations, 

or large jurisdictions may be able to contract for extraordi- nary surges in training needs. Such an approach was taken by 

the Missouri Chiefs of Police Association, which contracted 

with a private provider to give police supervisory personnel 

management training relevant to law enforcement. l3 

Personnel Turnover. General government policymakers must consider the availability of personnel in the 

discussion of any proposed program expansion. As noted 

in Chapter 5, many prison systems place this consideration 

first when reviewing potential sites. The consideration is 

equally valid in most criminal justice activities, because 

they are personnel intensive. In the war on drugs, the 1990 

White House Drug Control Strategy noted that “before 

we can make treatment more widely available, we need 

to . , . secure properly trained staff to run them.”14 Parenthetically, although the report proposed federal funding 

for in-service treatment training programs and pre-service 

training fellowships and grant^,'^ the 1991 anticrime bill tar- geted its training and scholarship funding only to police. 

nrnover rates are often the most telling sign that to- tal budget planning for personnel increases has not been 

addressed properly. Turnover may result from job dissatis- faction that is traceable to recruiting approaches, inade- quate training, or salary. High turnover also may reflect a 

more generous benefits package offered by other govern- ments or more attractive private sector management policies. There are many examples of the private sector using 

personnel who received their law enforcement training 

and experience with government agencies. Because high 

rates of turnover can represent a waste of training resources 

in criminal justice, general government officials should ex- pect that agency managers have conducted exit interviews 

and used other survey techniques to isolate the most sigmficant causes for turnover and its waste of public resources. 

To summarize, the effectiveness of most criminal justice programs depends on the persons operating them; 

therefore, general government budget officials must be 

cognizant of the factors that influence the availability of 

appropriately trained personnel. In most instances, it will 

be the responsibility of the agency head to anticipate personnel needs and develop a plan for establishing the re- sources needed to recruit, train, and retain the staff needed. This agency planning must address both entry-level 

recruitment and management-level development for rap- idly expanding programs. In addition, all programs need to 

focus on a comprehensive analysis of how professionally 

trained staff can be used more effectively by hiring lower 

paid staff support or instituting technological improvements. 

General government elected officials have a right to 

expect that this level of agency planning stands behind any 

agency budget brought before them. They should be pre- pared to question the agency accordingly. However, they 

then should recognize that the documented needs for personnel recruitment, training, development, and support 

must be funded. 

Forecasting 

The need for sound forecasting has been mentioned 

several times. It can play a decisive role in the passage of 

sentencing legislation. It is crucial for capital expansion 

decisions. It also is central to moving from reactive to proactive budgeting. 

This subsection provides relevant details on the com- plexities and limitations of forecasting. Such an under- standing should put policymakers in a better position to 

determine the validity of the forecasting data they are receiving, who should be charged with the forecasting responsibility, and whether elected officials should be part 

of subjective forecasting input. 

Most effects in the criminal justice system are not 

straight line but are compounded. Projections of caseloads 

or of incarcerated populations must take into account a 

wide range of factors, such as types of crimes committed, 

reporting rates, arrest rates per type of crime, trends in the 

average length of sentence being given per type of crime, 

and trends in the proportion of repeat offenders in each 

crime category (since this would affect length of sentence 

or use of probation or parole). As an example, a few of the 

specific issues identified in the Hennepin County (Minneapolis) jail expansion analysis included: 

Enforcement Levels - In recent years, family violence 

has received increasing public attention. One result 

was a 184 percent increase in reports of family violence between 1986 and 1988. 

Legislative Changes-One example is a recent initiative to make being a passenger in a stolen car a gross 

U.S. Advisory Commission on intergovernmental Relations 193 
misdemeanor, which could mean four or five people 

being detained instead of one. 

Law Enforcement Resources- Without the availability of the breathalyzer, DWI arrest rates would very 

likely be much lower.16 

Forecasting Models. States and some large localities 

are making major investments in sophisticated computerized modeling. Such systems may require historic information on over 100 variables and a means to update the information throughout the year. Most of these models can be 

programmed to simulate the effect of program options, 

such as use of boot camps or a new mandatoty sentence 

provision for a specific crime. NIC is asked frequently to assist a prison or jail system in reviewing the options available. 

A quick look at the state of the art was provided in a 

1990 review" of forecasting models that might be appropriate for use by the federal government to project the impact of drug control strategies: 

JUSSZM was first developed in the early 1970s and 

uses a microcomputer. It can be programmed locally to show the effects on the entire criminal 

justice system, such as the need for judges and 

prosecutors, as well as the need for correctional 

space produced, for example, by a 25 percent increase in arrests. However, it does not track the 

cumulative total size of the inmate population. 

The Institute for Law and Justice has recently updated its application. 

IMPACT uses microcomputers and was developed by the Center for Decision Support of the 

Criminal Justice Statistics Association. IMPACT 

can be operated by a nonprogrammer and is focused on prison and jail populations. 

CCPS was developed by Abt Associates for the 

National Institute of Corrections. It canbe runon 

a personal computer using Lotus 1-2-3 or other 

standard spreadsheet program. It is limited to 

community corrections, especially probation and 

parole supervision. 

The National Council for Crime and Delinquency 

(NCCD) developed a mainframe simulation 

model that is used in over a dozen states. The system is focused on prison populations and is customized for each state. Florida and Virginia recently brought the system on-line. The system in 

Virginia requires data entry for 130 variables. A 

new microcomputer version requires less data. 

The NCCD model can be very responsive in projecting the impact of policy changes. 

The Structured Sentencing Simulation (SSS) Mod- el, developed by the Institute for Rational Public 

Policy, is an extension of a simulation used by the 

Minnesota Sentencing Guidelines Commission. 

It can be used to project impacts on local jails and 

community corrections as well as prisons, but 

relevant probabilities must be available. It can be 

run on a microcomputer. 

JUSTZCE is a simulation of the Texas correctional 

system developed for a microcomputer by the 

Texas Criminal Justice Policy Council. It can be updated constantly by integrating the data base within 

the program, which can save on one of the largest 

costs of projection models: the collecting of data. 

FEDSZM has been developed jointly by the U.S. 

Sentencing Commission and the federal Bureau 

of Prisons. It simulates plea bargaining practices, 

sentencing practices, time spent in prison, time 

spent in community corrections, and the effect of 

probation and parole. 

The growing sophistication of such objective computer tracking and projection capabilities is significant, but 

they have three major limitations: subjective influences, 

availability of data, and trust. 

Availability of Forecasting Data. Even controversial, 

subjective assumptions must be applied to a valid data 

base. As with so many other management challenges, the 

fragmented nature of the criminal justice system complicates good data collection. Projections of the growth in 

prison populations based on admission statistics, such as 

NCCD's model, may be slower to recognize change than 

a model that uses arrest or reported crimes, but it will be 

easier to administer because all of the input comes from 

a single source. 

Projecting jail population and court-related caseloads 

is particularly hard because they must be jurisdiction specific, and the factors that predict growth in crime, arrests, 

and criminal charges in a close-in suburban jurisdiction 

may be as different from those in its core city as from its 

fast-growing exurban neighbors. Predicting these unique 

factors is complicated further by the fact that sophisticated modeling may be too expensive for all but the largest 

jurisdictions. Finally, to increase the validity of the forecast, the data may need to take into account very narrowly 

focused considerations. For example, Hennepin County 

noted that young police officers make more arrests on the 

average than older police officers; therefore, increasing 

the number of police will result in a larger number of arrests 

than would be accounted for by simply multiplying the current arrest rates per officer times the number of officers.'* 

Subjective Forecasting Input. Even the most timely 

data and the most sophisticated statistical models will be 

inadequate because they can not project public attitudes 

and other subjective factors. Computer programs can 

weigh trends and project any combination of factors, but 

the end result will depend on the initial assumptions. Subjective review-such as many governors or chief administrators regularly seek for revenue projections from a 

council of advisors-can help determine how long trends 

will continue and whether they will intensify. 

Subjective review is the third step, after numerical 

data is compiled to establish historic trends and permanent changes to the system have been identified, such as 

new sentencing laws, higher police staffing levels, or new 

194 U.S. Advisory Commission on Intergovernmental Relations 
law enforcement technologies. This review is necessary 

because simply projecting, for example, that a new longer 

sentencing law will increase the time that the percentage 

of inmates currently serving time for that offense will 

serve in the future may significantly understate the law’s 

effect. Potentially, a multiplier effect, relating to the same 

public influences that led the legislature to get tough on 

that type of offense in the first place, may be present in 

other elements of the criminal justice system. For example, prosecutors may find it more worthwhile to prosecute 

under the new law and start devoting more resources to 

these types of cases, and the number of arrests the police 

make may increase for the same reason. 

The managers of the projection model, therefore, 

need to be able to communicate their assumptions to a 

cross section of criminal justice practitioners and major 

policymakers. Ideally, the subjective review group, at 

least, should include representatives of police agencies, 

prosecutors, judiciary, parole, legislature, and the executive. Broad participation of general government 

policymakers in the subjective review not only will significantly improve the validity of technical staff assumptions, 

but also will provide these chief policymakers with valuable exposure to the factors that have the most impact on 

criminal justice needs. As a representative of the Criminal 

Justice Statistics Association, working with state and local 

jurisdictions in the criminal justice forecasting, observed: 

[Participating in the subjective review process 

provides insights] that can be readily understood by 

decision makers who may not be well-versed in 

criminal justice problems. This increases the likelihood that the projections will be used and enables 

decision makers to take control of the future. . . .19 

Establishing Trust in Forecasts. Not only have general government officials in the past tended not to be well 

versed in criminal justice issues, but when they attempt to 

seek information they are asked to appreciate the importance of confusing data bases, which must be appropriately 

applied for valid statistical projections (such as UCR 

crime rates, arrest rates, reporting rates, white-collar 

crime, and state felons). 

Thus, the desire to not want to believe forecasting 

predictions, because it means more money will have to be 

spent on programs that are not politically popular, heightened by lack of knowledge and confusing answers, can lead 

to sigmficant distrust from general government elected officials. The focus of this distrust may be the agency responsible 

for forecasting, in other words, “Kill the messenger.” 

One reaction has been to recast responsibility for 

maintaining the forecasting model. As of 1990, legislative 

fiscal offices in 10 states were preparing prison population 

forecasts.zo This growing practice raises questions of cost, 

access, and validity. The preceding brief descriptions of 

the major projection models give a small indication of the 

complexity of forecasting. If this complexity is duplicated 

in the executive and legislative branches, questions of cost 

must be raised. Alternatively, if the legislature takes on 

sole responsibility for detailed sophisticated projections, 

questions of timely exchange of information between the 

operating agencies, the executive budget office, and the 

legislative forecasting technicians must be resolved. Finally, if the legislative forecasting is only a simple projection 

of total prison populations or caseloads, elected officials 

who do not have sophisticated statistical training may 

need help to weigh why these results may differ from a 

more detailed executive agency analysis. 

Similar issues must be resolved if the executive has 

sole responsibility for forecasting. The nature of the con- cerns varies with the three main possibilities for the loca- tion of the forecasting responsibility within the executive: 

Department of Corrections-To assure that management decisions can be adjusted as rapidly as 

possible if the forecast model begins showing unanticipated results, it can be argued that the model 

should be maintained by DOC. DOC also may have 

direct access to the greatest amount of data. Finally, because its budget is far greater than any other 

agency’s, predicting DOC requirements also is of 

far greater importance to fiscal management. 

Executive Office of the Budget -Nevertheless, 

if the model is developed within the executive’s 

office of the budget, what the state’s prison system may lose in immediacy may be made up in 

assuring that the forecasts are applied to other 

operating and budgeting concerns. Executive 

office of the budget projections could encompass the range of criminal justice agencies’ 

needs, including the state’s judicial system, parole system, probation caseloads, intergovernmental financing obligations, personnel benefits, as well as the prison system. 

H Criminal Justice Planning Agency-Placing 

forecasting responsibility in a separate criminal 

justice planning agency also would encompass a 

wider analysis of impact. In addition, it might 

overcome distrust that figures emanating out of 

DOC or the office of the budget might be selfserving. However, removing this essential planning information from operational responsibility and budget authority raises the concerns 

mentioned earlier about lack of relevancy when 

planning is not close to policy control. Procedures would nced to be institutionalized to ensure that the executive budgeting processes fully utilize the data and that the agencies have 

immediate access to the data for their management adjustments. 

Wherever the tracking and projection capability is established, a crucial element for establishing trust is an inclusive review process that involves the legislative and the 

executive branch with practitioners. For example, a 1988 

Ohio law requires DOC to work with an advisory committee of the General Assembly to assure accuracy and objectivity of the prison population simulation model.21 An inclusive review process not only will provide essential 

subjective input but also will establish familiarity and confidence in the integrity of the projection model. If chief 

budget officers, legislators and/or their financial analysts, 

U.S. Advisory Commission on Intergovernmental Relations 195 
and chief executive senior policy advisors are not involved 

in ensuring the integrity of the projections, they will not be 

stakeholders. Lack of trust will continue. 

Entitlements 

The fifth budgeting element affected by explosive 

growth is projecting the funding requirements to meet entitlements and per unit fixed costs. Often, intergovernmental funding is involved, and at times the outspokencriticism from other elected officials fostered by shortfalls 

may make entitlements more vexing to general government elected officials than the other internal management problems of program evaluation, capital expansion, 

personnel, or forecasting. 

The most important means to reduce budgetary stress 

produced by per unit fixed costs is to establish a good base 

for short-term tracking. The budget staff of the individual 

agencies, the executive, and the legislature should be able 

to account for seasonal fluctuations in caseloads and space 

demands. The ability to detect any departures from these 

seasonal norms will enable them to determine at the earliest moment whether adjustments are needed to complete 

the budget year. 

The complexity of the short-term tracking base needs 

to reflect the demographics of crime encompassed by the 

governmental unit. Growth will not be equally distributed 

throughout a state or even within a large jurisdiction. The 

more that key elements of growth are tracked, the more 

intergovernmental conflicts and bottlenecks can be reduced. For example, DUF (Drug Use Forecasting) tracking will be able to detect regional trends that may lead to 

increased arrests, prosecutions, and convictions in one 

major city of a state as opposed to the other urban areas. 

The earlier that the need for increased defense and prosecution staffing is recognized, the less back up there will be 

in the local jail. 

However, even though good short-term tracking will 

help reduce problems in meeting current-year obligations, 

high growth will produce significant intergovernmental 

funding controversy because each government is trying to 

find new sources of revenue and/or reduce the growth in 

its funding obligations. Controversy is no less whether intergovernmental funding is based on shared costs or on 

formulas. Intergovernmental controversy initially may 

seem to be less in states that pay localities a per diem for 

various classes of jail inmates because the state has no 

choice but to respond to growth. However, the controversy is 

often just delayed because, in ensuing years, per diem payments may not be increased commensurate with actual costs 

so that a given state appropriation covers more inmates. 

Even if the total amount of intergovernmental funding has increased at a faster rate than the costs borne by 

local governments-as it has in many states22-the pressure on local budgets from the growing share of their ownsource revenues that must go to criminal justice needs 

have caused them to question traditional intergovernmental funding responsibilities. These challenges, in turn, 

have fueled long-standing disagreements over how localities report their criminal justice statistics to qualify for 

state aid. For example, should the state begin paying for 

inmates awaiting transfer into the state prison system on 

the finding of guilt, on sentencing, or after the time forfiling an appeal has lapsed? How many hours constitute a 

day for per diem payments? Local budget directors’ claims 

for broader interpretations frequently are countered by 

state budget analysts’ attempts to tighten administration. 

Another area of intergovernmental funding controversy involves state-shared personnel costs. Caseload and 

facility-specific agreements discussed under personnel 

staffing become key to reducing such controversies. However, most of these agreements represent a target that, 

during periods of high growth, the state will lag behind by 

at least a year. For example, the approved state budget 

may project a total of 835 probation officers to maintain 

current caseloads but, if the number of probationers increases beyond projections during the year, there is no adjustment. 

The same funding lag occurs in state-funded services. 

For example, forensic lab services are funded under a 

fixed budget amount, most public defender offices receive 

a fixed total to fund the payment of expert witnesses, and 

juvenile contract appropriations assume a maximum number of private treatment slots at a maximum fee. The more 

the number of cases increases, the less able the program is 

to absorb the shortfall. Furthermore, the more that sustained growth produces repeated annual budgeting shortfalls, the more breakdown there will be in the program’s 

mission, frequently producing a bottleneck that has an impact on the rest of the criminal justice system. 

Summary 

The breadth of detail incorporated in this and the following section should underscore the need for comprehensive coordinated planning. At the same time, a recurrent theme in recommendations for how planning should 

be structured is that planning needs to be close to the 

source of policy control. This may necessitate multifaceted planning efforts, but it does not have to entail duplication of effort. For example, independent data-gathering 

responsibility can support both legislative and executive 

resource planning while assuring integrity in the policy assumptions. Likewise, the data routinely collected by operating agencies can be fed into a planning agency’s data 

base, while the operating agency maintains control of the 

information to meet its immediate needs. 

In addition to program evaluation and capital planning, discussed in other chapters, three other elements of 

budget planning take on increased importance in times of 

explosive growth: personnel, forecasting, and entitlements. Because most criminal justice programs are personnel intensive, planning needs to address personnel issues, such as whether past hiring deficits have affected 

performance, staffing justifications, recruitment, training, 

and reasons for turnover. 

The goal of forecasting is to enable policymakers to be 

proactive; however, forecasting criminal justice growth is 

extremely complex. Although several increasingly sophisticated computer models have been developed, because of 

the volatility of criminal justice decisions, statistically objectiveprojections tell only half the story and must be mo196 U.S. Advisory Commission on Intergovernmental Relations 
dified by subjective input from criminal justice officials 

and policymakers. 

Finally, the wide variety of state/local funding of criminal justice funding arrangements, some of which are regarded as entitlements, underscores the need to track total system impacts. Otherwise, states may underbudget 

their obligations, with any combination of negative results: 

a state budget shortfall, local budgeting impacts resulting 

in intergovernmental tension, program decreases, and/or 

bottlenecks with resulting system impacts. 

SYSTEM IMPACTS 

Forecasting and planning for budget growth, for per- sonnel recruitment and training, and for capital expansion 

require a relevant data base. Weighing the cost and potential effectiveness of sentencing legislation, community 

treatment sanctions, and staffing increases requires an integrated data base. Removing bottlenecks, assuring consequences, and developing more effective means to reduce 

criminal activity require the willingness of policymakers 

and managers to coordinate their activities. The challenge 

is to bring together these elements-relevancy, integration, and coordination-within the disparate structure of 

the criminal justice system. 

There are at least ten players within the typical criminal justice system, plus general government treatment 

providers. They are funded by and must carry out the laws 

passed by at least three separate governmental unitsstate, county, and municipal. Some localities also face a 

variety of federal jurisdictional factors. By demonstrating 

the basic points of contact, Figure 8-1 underscores the 

need for various combinations of ongoing coordination. In 

addition, separate forums are required for program managers to address operational details, on the one hand, and 

general government elected officials and agency heads to 

discuss broad policy considerations, on the other. 

This section discusses challenges in developing opera- tional coordination and policy collaboration among and 

between criminal justice and general government officials. Previous chapters have raised numerous specific 

needs, including case management, legislative impact 

analysis, offender classification, establishment of commu- nity alternatives, capital improvement master planning, 

and the integration of police with community and criminal 

justice system responses. Such needs are revisited through 

a discussion of the integrated approaches needed to 

achieve them. 

Data Base Development 

In the 197Os, the driving force for coordination frequently was simply a desire to quallfy for federal funding. 

As the funding disappeared, so did most of the coordinating bodies that were formed under the federal mandate. 

During the 198Os, coordination efforts began to reappear, 

spurred by a desire to control escalating budget demands 

or the need for additional space. To the degree that the 

participants in these coordinating efforts find that they 

Judges 

U.S. Advisory Commission on Intergovernmental Relations 197 
meet real needs, there is ample indication that many are 

evolving into ongoing coordinating bodies. 

One of the most frequently recognized needs for ongoing cooperation is data base development. Although the 

initial stimulus bringing officials together may be escalating costs, general government and criminal justice officials usually realize that the information needed in order 

to control, reduce, and/or forecast cost impacts cannot be 

generated within any one agency. 1.n addition, integrated 

database development is driven by distinct needs related to: 

Individual offender classification, used as the offender progresses through the system to determine eligibility for pretrial release, probation, or 

prisodjail security; 

System management, used to move cases from arrest through trial; and 

Asgregate analyses, used for computerized forecasting models, fiscal impact projections, and planning by the local, state, and federal governments. 

Individual Offender Information 

Developing a unified data base is not just a planning 

tool; it provides direct operating efficiencies and improved 

performance. However, as logical as it is to coordinate the 

information, logic alone often will not overcome individual agency budget priorities and the personal preferences 

of managers, as underscored in the following excerpt from 

a letter written by a state highway patrol lieutenant colonel on learning of this project: 

While there are many justifications for the designed fragmentation of the criminal justice process from a constitution basis, the opposite is true 

on an operational level. The processing of a criminal offender from the time of arrest to final release provides significant opportunities for improvements in the efficiency of the criminal 

justice system ifdata were standardized and shared. 

Throughout the country there are situations developing which will culminate in the automation 

of a police system, a prosecutor system, and a judicial system on separate floors of the same building on different hardwarelsoftware platforms 

connected to separate netw0rks.2~ 

General government officials should be prepared to 

use their power of budget approval to leverage the participation of multiple agencies. The cost of computerization 

means that any decisions must pass through them, and the 

increased ability of computers to handle total system integration means there are no innate barriers to requiring 

that every criminal justice official participate. In addition, 

it is important for general government officials to be actively involved in bringing about the coordinated effort. 

For example, one of the largest local government 

computer applications in the world, LAJIS, was initiated 

in 1987 to serve the criminal justice needs of Los Angeles 

County. It has been reported that the most important element in its successful implementation was the recognition 

of the need for LAJIS by the board of supervisors, as well 

as the sheriff, district attorney, chief administrative officer, and principal members of the criminal justice community. This general government recognition of the need led 

to the establishment of the Information Systems Advisory 

Board in 1982, comprised of executive staff from 12 criminal justice agencies and professional associations. Not 

only does the chairman of the board of supervisors head 

the advisory board, but the development of LAJIS received “key support” from county general government experts in systems design and computerizati~n.~~ 

LAJIS was initiated as a comprehensive change, but 

incremental change can be equally cost beneficial. General government officials can leverage their current system 

and should not be deterred by an assumption that an entire system must be planned at one time. In the case of the 

Harris County (Houston) Criminal Justice Planning Task 

Force, the means to “eliminate the current redundancy of 

employees from different agencies collecting the same information concerning an offender”25 grew out of efforts 

that had begun earlier for full automation of defendantbased information in the Pre-Trial Services Agency. Recognizing that “[tlhe effectiveness of the entire criminal 

justice system relies on a systematic approach to the gathering and verification of information concerning the offender as the initial step,”26 the Pre-Trial Services system 

was seen as a catalyst for meeting the information needs 

for the sheriff, district attorney, district clerk, the community 

supemision and corrections department, and the courts. 

Bringing chief program managers together becomes 

the vehicle to uncover overlapping problems, develop 

consensus, and achieve commitment to the solution. Once 

the policy commitment is established, formation of a technical task force is essential. Often, such task forces are 

greeted with much more optimism at the working level 

than may have been the case, at least initially among the 

“B.C. (before computers) agency heads.”27 Involving general government computer experts in developing the system specifications can help ensure that automation is not 

just an add-on to the way things have always been done in 

the criminal justice system. 

In addition, the less sophisticated the computer system that can be justified on a cost-benefit basis, the more 

important it is for an interagency task force to address 

physical details. If ready access to the information is not 

established, the respective agencies will develop duplicative material for convenience and internal efficiency. 

Where files cannot be physically or electronically shared, 

compatible data entries need to be developed to allow information to be merged for system analysis or, as in the 

case of criminal data banks, expanded access. 

It is important for the policy group and the operational task force to communicate regularly. In particular, the 

respective agency heads and/or the chief general government officials will need to reiterate their commitment to 

change to overburdened employees in the disparate criminal justice system, who may not see the importance of recording accurate information that is not directly relevant 

to their needs. For example, according to a recent audit, 

despite improvements since periodic audits began in 1983, 

’ 

198 U.S. Advisory Commission on Intergovernmental Relations 
I 

nearly 85 percent of the arrest records maintained by the 

Illinois State Police for the Computerized Criminal Histo- ry system were missing one or both of the prosecutor’s or 

court dispositions; 60 percent were missing both. As the 

Cook County sheriff lamented, “I know it’s resources, it’s 

money, but it’s something that we have to have in law enforcement because so many people depend on this data.”” 

An ad hoc working committee was formed to address the 

problem with representatives from the state police, the 

administrative office of the Illinois Courts, state and local 

reporting agencies, and the audit authority.29 

As the decision to cooperate in providing individual 

offender information matures, the original group of chief 

policymakers may need to be expanded. In many jurisdic- tions, the first and most crucial need will be to include the 

municipal police with the county court and jail officials. 

This may represent a significant intergovernmental challenge because it will involve city-county funding issues. 

For example, New Jersey is reported to be the closest to 

complete coordination of its offender information from 

the moment of arrest through sentencing and imprisonment. This is due in large part to state funding.” In contrast, cities in Florida are using drug bust proceeds to fund 

police computer systems, and state coordination islimited 

to giving advice. 

State legislators may want to consider legislation to 

direct a portion of drug forfeiture funds to integrate the 

police with the rest of the criminal justice syst-m. Such a 

policy directive takes on added immediacy beudse police 

forces were often the first criminal justice agencies to 

computerize, and these early systems need upgrades. This 

produces a fertile climate to establish integrated systems 

that can bridge governmental structures. As long as the 

police have an independent source of funding, there may 

be little inclination to cooperate. 

Once the commitment is made tocoordinate offender 

information, other policy issues may emerge, includingaccess to juvenile records, access for private treatment 

providers, and whether eliminating redundancy in the col- lection of information affects the preparation of pre-sentence reports in systems where they have been dropped 

due to overload. For example, the Ohio Commission on 

Prison and Jail Overcrowding found that rather than eliminating pre-sentence information reports, standardizing 

PSIS statewide by training local officers would not only im- prove equity under the law but could also save state prison 

manpower if the information was not generated anew for 

classification purposes.31 Each of these second-round considerations may call for expanding the initial policy coordinating group. 

Information to Enhance System Flow 

The goals for developing an integrated offender data 

base are cost savings through eliminating redundancy and 

increased effectiveness through better data. The goalsfor 

developing a systems management data base-cost avoidance and increased efficiency -are related, but meanhgfully different. 

Most criminal justice personnel recognize immediately that better data will make them more effective. In 

contrast, it may take more to convince some of these same 

players that greater efficiency also will make them more 

effective. The rationale that needs to be appreciated lies 

in the observation of Francis Bacon, when he ascended to 

the bench in England in 1614, that “Fresh justice is the 

Cost avoidance seldom means that redundant 

expenditures can be eliminated, but it frequently means 

that current resources can be employed more effectively. 

It depends on each step in the criminal justice system producing meaningful and timely data to trigger the actions 

required of personnel involved in the next step. Cost 

avoidance derives from public employees not being kept 

waiting and offenders not being held under more expensive security than necessary. 

There have been numerous examples of the need for 

mrdinated systems throughout this report. A brief recap 

of the types of problems that must be addressed through 

system management include: 

8 

8 

8 

8 

Legal Requirements-Individuals cannot be 

moved from one element of the criminal justice 

system to another without legal authorization. 

Often, state inmates reported as backed up in local jails actually are waiting for court paperwork 

to be completed. 

Jail Overcrowding-The expense of building a 

new jail or the threat of a lawsuit may be avoided 

if bottlenecks are eliminated elsewhere in the sys- tem. For example, the percentage of unconvicted 

inmates being held in local jails nationally increased 

from 39.9 percent in 1983 to 42.6 percent in 1989. 

This increase was due entirely to the number not 

yet arraigned, which grew from 11.5 percent in 1983 

to 16.4 percent in 1989. The percentage arraigned 

and awaiting trial actually 

Poor Case Preparation-The development of 

the facts of the case by the police, prosecution, 

and the public defense can be compromised if 

scheduling meets the needs of only one element 

of the criminal justice system. Verifying offender 

information also may be compromised. 

Delay-Usually, the longer a case sits before it is 

tried, the more justice may be compromised be- cause memories fade and conflicting testimony is 

harder to rectify. Although it is rare for a case to 

be dismissed because it was not heard within statutory limits, it is possible. With the increase in 

drug cases, adequate resources for forensic labo- ratory analyses has become particularly critical in 

combatting delay. 

Physical Restraints-Just as chains will break at 

their weakest link, standard procedures frequently will fail due to physical restraints, such as 

the size of the intake room, the number of courtrooms, or even, as in the case of the New York 

court, something so specific as the limited number of sally ports to receive busloads of offenders 

being transported from the distant jail. 

U.S. Advlsory Commlsslon on Intergovernmental Relations 199 
This summary of problems created in the criminal justice system is due only partially to overloaded facilities. Its 

root cause is that each element has littleauthority overthe 

procedures of the others: Police control arrest practices; 

prosecutors control charging; the legislature usually con- strains pretrial release and sentencing policies; the clerk 

of court controls the preparation of legal documents; probation departments may be charged with the timely ap- pearance of defendants on pretrial release; court adminis- trators exercise significant control in scheduling cases, 

while judges may control the progress of cases. Sheriffs or 

jail administrators typically have the least control of all 

and are the first to feel the effects of lack of action by other 

criminal justice officials because jail backlog is in terms of 

people, not stacks of paper. 

It is obvious that workable systems to improve the 

flow of people, authorized by the requisite paper trail, 

must involve all agencies. While the sheriff or chief judge 

may initiate change, the most comprehensive solutions 

usually emanate from general government elected offi- cials. The sheriff may be an early catalyst for change by 

taking steps, such as establishing a daily reporting system 

as in Hennepin County.34 Chief judges and court administrators also may use their authority to carry out initiatives 

fostered by the training they have received from such or- ganizations as the Center for State Courts, the American 

Bar Association, and the American Judicial Conference. 

Nevertheless, because they control the funding, gen- eral government,officials are in the best position to force 

all of the players to reason together. Local general government officials frequently have taken advantage of the 

request for new jail or courtroom space. State legislatures 

are in an even better position to take a proactive stance. 

California developed state standards that require management improvements before additional judicial operating requests are The 1987 Oregon legislature 

tackled both court operating and jail space demands by 

setting time limits for arraignments, probation violation 

hearings, sentencing, judgment orders, and completion of 

pre-sentencing reports.36 

However, improvements, such as video bail review, 

computer remotes, or space modifications, may still not 

eliminate the need for increased staffing and space. 

Therefore, good-faith efforts to coordinate for system 

management efficiencies must include general government personnel. As was noted in the LAJIS example, they 

have broad technical expertise and, if this expertise is not 

engaged, those who have the ultimate control over funding the improvements may not be convinced that all that 

can be done is being done. 

Aggregate Information 

to Support Analysis and Planning 

The need for aggregate data is a reflection of both the 

independence and the multiplier effect in the criminal justice system. Even though the system was conceived to 

maximize the independence of each official in determin- ing guilt or innocence, in fact, this independence is often 

influenced by the same forces. This creates a snowball effect. 

As a hypothetical example, a 2 percent increase in violent crime might be met by a 3 percent increase in municipal police, which might result in a 5 percent increase in total felony arrests. The increased public concern created by 

the increased violent crime might cause the prosecutor’s 

office to increase the percentage of all arrests where the 

decision is made to prosecute, and it might cause the 

prosecutor, judge, or jury to be less inclined to consider 

lighter sentences. The result is that the original 2 percent 

violent crime increase becomes a double-digit increase in 

the number of people behind bars. 

General government officials must be able to judge 

this multiplier effect to make rational policy decisions. 

The Oregon Jail Overcrowding Project’s commentary on the 

result of not gathering aggregate data speaks to this need: 

There did not exist reliable information concerning historical and current crime rate and arrest, 

prosecution, charging, sentencing or disposition 

practices. Without that information, those who 

make or influence public policy on criminal justice must guess about the nature and scope of the 

problems they are called upon to solve.)’ 

Aggregate data also is critical for evaluating intergov- ernmental programs. Michigan’s Community Corrections 

Act requires evaluation of the extent to which each community actually diverts offenders from prison through 

CCA-funded programs. However, neither the state nor 

most localities traditionally tracked the makeup of jail 

populations. Using a federal NIC grant, the state established both a Jail Population Information System (PIS) and 

a Community Corrections Information System (CCIS).38 

The Harris County Criminal Justice Council provides 

another example of how frequently the importance of automation and consolidation of information is being recog- nized. In fact, the need for a sound, integrated data base 

was given the top priority by the council, which was made 

up of judges, the district attorney, the sheriff, the clerk’s 

office, the district courts administrator, and the chief probation officer, as well as a member of the city council, a 

member of the state legislature, the county attorney, and 

the city school board president: 

The development of a baseline offender profile is 

recognized as a necessary and integral aspect of 

the process of making appropriate allocation of 

resources and monitoring the effectiveness and 

utility of various program elements of the community justice system.39 

This top-priority recognition underscores the importance of bringing criminal justice and general government 

officials together. It boosts the chances that resources will 

be identified within all of the agencies that must participate in order to establish a valid data base. Equally important, the wide participation of criminal justice interests provides a focus for resolving reporting formats and protocols. 

Ideally, aggregate data will grow out of the data re- quired for operational purposes. The more that it does 

not, the less likely it is to be recorded accurately or transmitted in a timely manner. As with individual offender in- formation and with management systems data bases, it is 

200 U.S. Advisory Commission on Intergovernmental Relations 
critical that each element of the system recognizes the importance of the information it is gathering and that there is 

consistency in the terms used. Recording new data, at least 

initially, represents a new burden to line personnel. Because they frequently have little experience with the advantages of planning, as opposed to what information 

about an offender can trigger, they are more apt to regard 

it as simply more paperwork. 

Those who will be using the aggregate data for planning should focus on using existing data to the greatest degree possible, with modifications only if necessary to 

achieve conformance with significant state and federal 

data systems for valid comparisons of local trends and 

needs. In some systems, even standard state and federal 

categorizations must be approached with caution. They 

may create the same operational problems as any distinction borrowed from another system: If it is irrelevant to 

the operational needs and options within system using it, 

the information recorded will be “fudged” by employees 

to make the “right” distinction as they see it.40 Wrong data 

bases not only waste operational resources, they also provide wrong aggregate information for policy evaluation 

and development. Finally, it must be noted that many officials have criticized the FBI’s Uniform Crime Report, which 

should set the standard for valid jurisdictional comparisons, 

but which is seen as highly vulnerable to reporting errors because (1) it is voluntary, (2) there is little quality control or 

training, and (3) its crime definitions are 

General government officials often become the 

strongest advocates for establishing aggregate data bases. 

They may have begun their push for criminal justice coordination because of immediate budget pressures, but they 

soon realize that gathering aggregate data moves the reason for coordination from coping with overload to the potential for controlling it. 

Fiscal Impact Statements 

Another basic tool for controlling system overload is 

to estimate the fiscal impact of crime legislation or a budget initiative before it is passed. Some states have fiscal 

impact statement requirements, but the value of any 

statement depends on the data used, the breadth of the 

projection, and when the information becomes available 

to elected officials. 

Validity of Data 

The validity of the data used depends not only on what 

data are available, but whether the right data are used. 

Data will be difficult to generate if a forecasting model has 

not been established; however, even a manual count and a 

future-year projection will take the discussion beyond just 

a “guesstimate.” 

One critical error-which has been made when large 

computer data bases are available as often as when there is 

only manual data-has been to base projections on the total number of inmates imprisoned for the offense category 

covered by the legislation, rather than focusing on current 

admissions. Legislation tends to deal with crimes of current concern. Using an historic conviction base may drastically understate the fiscal impact of the legislation when it 

is applied to current community standards for arrest, 

prosecution, and sentencing. 

Breadth 

The breadth of the projection refers not just to the 

number of years projected, but whether the impact on all 

components of the criminal justice system are considered. 

Most forecasting models focus on prison bed needs. Because this is the largest budget, even such a limited impact 

assessment provides an order of magnitude assessment of 

the state budget impact. However, it does not red-flag the 

impact on court-related offices that may be funded locally. 

In Minnesota, therefore, public defender offices have recently taken the initiative to submit their own impact 

statements on new criminal law bilk4* 

Of equal concern is the fact that few states have an 

adequate means of analyzing the local impact of bills regarding misdemeanors. Legislation on drug testing, domestic violence, drunk driving, or other misdemeanors 

will have significantly greater impact on probation, parole, 

jail, and court services than on the state prison system. 

Furthermore, simply projecting statewide total or average 

increases is not relevant for programs funded locally. Legislators need to be provided with local information, at a 

minimum, showing the magnitude of difference between 

urban, suburban, and rural jurisdictions. 

The breadth of projecting fiscal impacts also includes 

extending fiscal impact statements tocover criminal justice appropriations, not just sentencing legislation. For 

example, funding new investigative tools, such as a compu terized fingerprint identification system, which 

would have an impact on conviction rates for property 

crimes, or DNA analysis of body tissues, which has become a powerful new tool in violent crimes, should be 

accompanied by projections for their impacts on costs 

throughout the criminal justice system. 

Timeliness 

Legislators, the governor’s office, affected agencies, 

judges, prosecutors, the defense bar, and local governments need to receive the information as early as possible 

in considering legislation. This is less of a problem in large 

states with full-time legislative sessions than in states with 

short legislative sessions, which, if they are small, also may 

not have as much projection capability. 

Improving the Fiscal Impact Process 

Even when fiscal impact statements are required, 

many officials interviewed expressed the belief that legislators do not know the ramifications of votes and that the 

process needs to be strengthened. In addition to increasing the sophistication of the analysis, its breadth, and its 

timeliness, some states have taken steps to put teeth in impact statements. For example, Tennessee adopted a “pay 

as you go” fiscal assessment bill in 1985, which requires 

that appropriations be passed before a sentencing enhancement bill becomes A prison population cap 

goes even further in strengthening the fiscal impact statement. Sentencing guidelines and parole reform in Minnesota, Washington, and Oregon are the best examples of 

U.S. Advisory Commission on Intergovernmental Relations 201 
forcing the legislative process to link the adoption of new 

priorites and goals to finite resources. 

Just as states need to be cognizant of projecting the 

cost of crime legislation on local governments before it is 

passed, the National Conference of State Legislatures has 

pointed out that the Congress and the president should 

adopt the same discipline: 

In order for states to [be more effective] partners 

with the federal government, the Office of National Drug Control Policy should give more careful attention to the fiscal implications of its policies 

during its formulation of the National Strategy. We 

believe that not only are states entitled to information regarding the impact of fedeml proposals, but 

also, each Congressman and Senator deserves to 

know how the various proposals will affect the budgets and tax situations in their own 

The NCSL testimony went on to point out that the $6 

million included in the Crime Controlkt of2989 for states 

that adopt mandatory sentencing for certain firearm offenses would allow for the construction of only 2.2 beds 

per state, without considering annual prison operating 

cost per inmate. 

The Federal Courts Study Committee recommendations for judicial impact assessments contained a checklist 

of “housekeeping” points to be considered when passing 

legislation,, including, for example, indication of whether 

the statute should be broadly or narrowly interpreted and 

a listing of which statutes are intended to be repealed, modified, or preserved intact by the new statute. The Federal 

Courts Study Committee’s commentary also echoed a lament heard in state legislatures-as it is in the halls of 

Congress-that it is impossible for interested parties to 

recognize, much less monitor, every bill. Fiscal impact 

statements are seen as an essential “red flag.”45 

The agreement of many general government and 

criminal justice leaders about the need for fiscal impact 

statements is well expressed in a particularly strong declaration of the American Bar Association-which also isdeveloping a model impact statement-that was picked up by 

the National Governors’ Association in its policy position: 

Legislation that increases the number of crimes 

and length of prison sentences without also providing for additional police, prosecution, and defense 

services, as well as correctional services, must be 

seen as a futile, counterproductive gesture.& 

Coordination to Deal with System Impacts 

As important as fiscal impact statements are in and of 

themselves, their preparation serves to raise another red 

flag-the need for system-wide coordination that goes beyond the operational concerns discussed thus far. For ex- ample, the difficulty in determining intergovernmental 

impacts may underscore the need for differential funding 

that reflects crime-related demographics. Or sentencing 

impacts may be regarded as highly speculative in the absence 

of judges, prosecutors, treatment providers, or other officials 

being fully informed of or in amrd with the legislative intent 

or the import of the new technology being funded. Finally, 

the fiscal impact process considers only the effect of state action on localities; there is no comparable review of pending 

local decisions on the rest of the system. 

There are abundant examples of the problems endemic to the criminal justice system because of the lack of 

system coordination and agreement on priorities: 

Inadequate Correctional Programs-A 1971 Advisory Commission on Intergovernmental Relations finding rings as true today as it did then: 

In the Commission’s view, pouring large 

amounts of funds into police programs in 

the final analysis will have an insignificant effect upon reducing recidivism unless correctional agencies also are 

treated as “first class citizens.” Indeed, 

increasing law enforcement capabilities 

alone will only contribute further to the 

already overcrowded conditions in corrections facilities, without improving the 

effectiveness of rehabilitation efforts. 

Therefore, the Commission rejects the 

argument of some observers that fighting crime in the streets always should receive top fiscal prior it^.^' 

Because they are the end of the line, correctional 

programs also can take a heavy impact from efforts to solve problems elsewhere in the system. 

Cook County began five evening courtrooms in 

October 1989 to handle its backlog of drug cases. 

The backlog had decreased by 4,000 as of 

mid-1991, but an unintended side effect is that 

more offenders are being sentenced to prison 

terms because of insufficient personnel and time 

to seek alternative sentences. “Illinois had the 

largest increase in inmate population in the country last year, and I think that’s probably directly 

attributable to the increased efficiency of our 

courts here in Cook County,” said Presiding 

Criminal Court Judge Thomas Fitzgerald.a 

Inadequate Court Resources-As the Federal 

Courts Study Committee observed: 

At some point, the war on drugs will be a 

casualty of itself. Overload causes backlog. Backlog threatens timely prosecution and, under the Speedy Pial Act, can 

lead to dismissals. The Chief Justice has 

warned against “an hour-glass-shaped 

law enforcement system.” It will have increased prosecutorial and correctional 

resources, “but without the judge-power 

to handle the added workload there will 

be a bottleneck in the middle of the sys- tem substantially lessening our ability to 

win the war on drugs.”49 

Indeed, the President’s 1990 National Drug Control Strategy recommended more clerks, adminrn 

rn 

202 U.S. Advisory Commission on Intergovernmental Relations 
istrators, defense services for indigents, probation and pretrial officers, security and support 

staff, additional judgeships in federal courts, and 

state expansion of court resources to “respond to 

the flood of drug cases that can be found in virtually every jurisdi~tion.”~~ 

Inadequate Detention Space-As noted in the 

Hennepin County jail study: 

As a processing facility between the police and the courts, the [jail] functions 

much like a pipeline for the criminal justice system. . . . As crime increases, forcing more arrests, the flow into the pipeline increases. The people and systems 

adjust as much as possible to the added 

load until it becomes too much. At that 

point, the pipeline clogs and cases start 

backing up on the court’s calendar and, 

more visibly, in the 

Overutilization of Resources-The Florida 

ACIR found that a 95.0 percent increase in jail capacity between 1985 and 1989 led to a 72.1 percent 

increase in incarceration, even though there was 

only a 10.6 percent increase in crime. The sevenfold growth was caused by a growth in arrests 

(18.3 percent) that was almost twice the increase 

in crime and by increased prosecutions (47.9 percent) that more than doubled the effect of the increased arrests.52 

By the end of the 1980s, more and more states began 

trying to address the problem of establishing priorities in 

the criminal justice system, so that problems such as those 

listed above do not frustrate criminal justice officials and 

waste resources directed toward fighting crime. Because 

these efforts at a systems approach have grown out of necessity-usually involving system overload or budget crisis-there are many variations in the types of coordinating 

bodies that have been formed. The challenge for the 1990s 

is to turn these ad hoc reactive efforts into ongoing proactive tools. The subsections that follow briefly outline some 

of the coordination approaches being used, while the next 

section on the politics of change addresses the basic issues 

that must be tackled by these coordinating bodies. 

LEAA State Planning Agencies 

and Criminal Justice Coordinating Councils 

A focal point of the Omnibus Crime Control and Safe 

Streets Act of 1968 was its mandate for comprehensive 

criminal justice planning. It contained block grants to permit states to identify needs and plan programs. This federal planning push was further strengthened because much 

of the federal money for operational initiatives was not 

narrowly defined for specific functions and was funneled 

through the 55 State Planning Agencies (SPAs) created 

under the act. Thereby, these SPAs could significantly influence state and local criminal justice agencies to include 

a planning element in all operational grant applications. 

The 1970 amendments to the Safe Streets Act specifically 

encouraged local and regional planning by federal funding 

of Criminal Justice Coordinating Councils (CCJCS).’~ 

The extent and duration of LEAA activity is reflected by its funding history. Expenditures for criminal 

justice planning, information, and communication systems that served more than one criminal justice function and general training programs tripled between 

1971 and 1976, before leveling off in 1977, and then falling close to the 1971 level, adjusted for inflation, in 

1985. This pattern demonstrates the impact of the rapidly increasing LEAA block grant program in the early 

1970s and its termination in 1979-80.54 

There are fewer than 70 city-county criminal justice 

coordinating councils in the Of 24 coordinating 

councils identified for a 1991 survey, 18 had their origin 

during the LEAA era. The annual funding of these coordinating councils varied from over $3 million to nothing. 

The most active organizations typically had data-gathering 

and projection responsibility, such as in Dade County (Miami) and in Los Angeles County, or were responsible for 

criminal justice training, as in Lucas County 

The demise of CJCCs and SPAs is typically ascribed to 

two factors: they were seldom more than grant administrators and their representation was skewed. The view that 

they were seldom more than grant administrators is in part 

a reflection of the top-down origin of the LEAAmandate. 

In jurisdictions where the funding expired before an ongoing 

agenda reflecting the benefits of coordination emerged 

from the participants, the planning function died with the 

funding. The development of a meaningful planning role 

also was stifled by the requirement for annual plan submissions. This required planning on “short-term goals and immediate funding concerns, producing artificial work burdens, 

and demanding an inordinate amount of time.”57 

Even as grant administrators, most of the grant funds 

were passively directed to meet the existing needs of agencies capable of “good grantsmanship” rather than to identify and initiate systemic improvements. According to a 

U.S. Government Accounting Office (GAO) assessment, 

The problem is that LEAA and the SPA generally provided technical assistance only on request, 

rather than actively seeking out program officials, 

asking them about theirproblems, and suggesting 

solutions [LEAA] should complete its consideration and study of the issues so action, not merely 

planning, can be taken.’” 

The problems of skewed representation also had several origins. The first was police agency domination. A 

1970 LEAA survey showed that 34 percent of the members were police; only 6 percent were corrections, 8 percent prosecution, and 8 percent judicial. This police dominance was due in part to problems of jurisdictional 

representation, because, as noted earlier, almost every jurisdiction has its own police force. On average, there are 

five-times more police agencies to be represented in any 

region than there are court or correctional officials. At 

times,, moreover, regional efforts to include all units of 

government numerically overwhelmed the importance of 

the core city’s criminal justice problems. Finally, it was 

rare to have representation of state or federal officials, 

U.S. Advisory Commission on Intergovernmental Relations 203 
even though in a given region they may play a significant 

role in probation, immigration, or drug trafficking. 

Councils of Governments 

and Metropolitan Planning Organizations 

The movement to establish regional councils of governments (COGs) or metropolitan planning organizations 

(h4POs) predated CJCCs. Although they, too, were required for distribution of certain federal grants, COGs 

and MPOs were involved in enough different program areas that most were able to achieve legitimacy among their 

member governments despite changes in their federally 

mandated raison d’etre. 

However, although COGs and MPOs frequently will 

have a criminal justice committee, their governing boards 

are composed of general government officials who concentrate on issues for which they have the prime responsibility, such as transportation, air quality, land use, and 

sewage treatment. The role of COGs and MPOs in bringing criminal justice officials together has tended to be 

more in getting similar officials together, such as all the 

region’s police chiefs, rather than playing an ongoing role 

of system coordination and planning. 

General government officials can spur criminal justice coordination, nevertheless, by using a COG or MPO 

to sponsor a special program or workshop related to criminal justice. However, it isvery important that the development of program content and focus include criminal justice 

officials so that they will feel ownership of the outcome. By 

bringing criminal justice officials together on a specific topic, 

a COG or MPO can become tho catalyst for the formation 

of a separately constituted body, as criminal justice officials realize the potential for ongoing cooperation. 

Another problem with a COG or MPO serving as the 

forum for criminal justice coordination and planning is 

their jurisdictional representation. As in the LEAA critique, many criminal justice officials in large cities are reluctant to spend much time with an organization in which 

all governmental units are given the same weight. For cxample, it was observed during interviews that the city of 

Phoenix would be just one among over two dozen govcrnments if it tried to use its COG as a criminal justice planning forum. 

Although LEAA and other regional planning efforts 

of the 1970s established very few enduring criminal justice 

coordinating bodies in the 1990s, there may be more planning efforts than ever existed under the federal mandate, 

as the following subsections indicate. There is reason for 

optimism that these forums may last because they have 

avoided some of the basic weaknesses inherent in the earlier 

approach. They tend to be self-generated rathcr than imposed from without, They are more inclusive of all agencies 

related to criminal justice. They involve an action agenda. 

Budget Coordinating Bodies 

To reiterate one of the main tenets of the drive for improved coordination: The more the forum involves people 

in the mainstream of decisionmaking, the more it will 

avoid the failings of earlier LEAA efforts. 

ACIR made the point that planning must be in the 

mainstream in its 1976 assessment of the Crime Control 

Act “The SPAS have been largely unable to change their 

image as Federal planners and grant dispensers in connection with the operations of other State agencies. While 

some exceptions do exist, most are involved and do not relate closely to other executive branch agencies as a funding conduit or information resource.”59 The Council of 

State Government’s finding was equally action oriented: 

“[Elffective planning must be related to authority to implement and thus made sense only, or at least primarily, as 

an endeavor of operational agencies.”@’ 

Budget development is in the mainstream of decisionmaking. In Olmstead, Minnesota, following successive reversals of county board budget decisions due to the strong 

objections of certain criminal justice officials, a review 

group was formed consisting of a member of the county 

council, the county administrator, county attorney, the 

sheriff, the district attorney, the presiding court judge, a 

district court judge, community corrections director, and 

juvenile corrections director. Even though each budget 

still goes through the standard process, any outstanding issue has to go through the criminal justice review group for 

rcsolution before going to the council’s budget committee. The review group has been so successful in spotting 

the effect of any action on the entire system that some discretionary money is now designated to the group to apply 

to needs of the system as a whole.61 

Localities that have initiated efforts to set budget 

priorities among criminal justice agencies are finding that 

the results are, in fact, avoiding the LEAAcriticism of too 

much emphasis on police resources. For example, at a 

1990 retreat, Charlotte City Council members identified 

drugs and the criminal justice system as one of five areas 

they wanted to concentrate on. During ensuing planning 

forums to identify how the council’s priorities could be 

carried out, all of the ten criminal justice areas-except 

law enforcement-identified needs within their own 

agencies as their top concerns. In contrast, both the Charlotte Police Department and the Mecklenburg County Police Department identified the need for more jail and prison space, more judges, and more prosecutors because of 

their concerns that too many arrested persons do not 

come to trial and too many convicted people are released 

before serving their time. 

Secretariats, Coordinating Councils, 

and Crime Commissions 

Attempts to take a comprehensive approach in establishing criminal justice priorities have led to various institutional structures for continued coordination. The philosophy behind most of these efforts is to create ongoing 

oversight of system impacts rather than rely on the more 

narrowly focused, relatively closed budget process. 

One alternative for executive oversight is to group 

agencies under broad functional areas. These groupings 

may each be under a cabinet level official, comparable to 

the structure of the U.S. Department of Justice. Over the 

years, there have been numerous state reorganizations in 

response to various trends in public administration. In the 

1% at least 20 states placed correctional agencies under 

human services super-agencies with welfare, mental health, 

and employment seMces. State police or highway patrols 

204 U.S. Advisory Commission on intergovernmental Relations 
were placed under a public safety secretariat, most commonly, or transportation.62 By the end of the 197Os, concerns 

about security and the demands of administering two rapidly 

expanding areas-social entitlements and prisoner growthled many states to recast corrections as a public safety rather 

than a rehabilitation agency. Under this reorganization, 

some states have brought adult corrections, state police, probation, parole, public defense, prosecutors, and juvenile 

court treatment functions under the same umbrella for gu- bernatorial policy purposes and administration. 

Local jurisdictions are not apt to have executive oversight structures that include criminal justice because many 

of the local agencies are independent, under a different 

local government, or divisions of a state agency. However, 

Hennepin County recently included probation in its weekly general government cabinet meetings. 

Mechanisms for legislative oversight include organizing the budget staff to assure that the staff handling the 

judiciary’s budget, for example, also is reviewing all the ex- ecutive criminal justice agencies. In some states, this is 

producing an increasingly proactive committee structure, 

combining a greater awareness of proposed criminal code 

changes with correctional budget ~onsiderations.6~ Another model is found in the Virginia Crime Commission, 

which includes legislators, local prosecutors, and laymen 

to review criminal justice issues throughout the year and 

develop a legislative agenda. 

A prime example of bureaucratic coordination that 

is not necessarily dependent on the direction of an 

elected official is the California Executive Corrections 

Council. By working on operational issues, it can institute solutions directly. Recommendations to elected officials for policy change come only after management alternatives have been tried. The council also crosses 

state-local divisions and brings together state corrections, sheriffs, and local probation officers. 

Task Forces 

It is common for general government elected officials 

to form a task force whenever a particularly controversial 

and/or expensive issue is brought before them. This strategy should be regarded as a potential catalyst to establish 

an ongoing forum to surface problems and develop solutions. It should not be overused, as in Hennepin County 

where the coordinating council threatened to disband because the mayor of Minneapolis formed special task forces 

for every issue, usually consisting of same players, namely, 

the police chief, court administrator, chief jailer, etc.64 

Nevertheless, there are times when a task force 

formed around a specific problem may bring different 

players to the table, whose respective roles are not traditionally appreciated. For example, Cook County (Chicago) has one of many large jail systems under a consent decree to reduce overcrowding. It is readily acknowledged 

that one of the most positive elements of a 1982 court decree was the formation of a Criminal Justice Coordinating 

Council and, particularly, its composition. 

If we would have set this group up at any other 

time or for any other reason, I guarantee you, 

three of the people would not have been on it: the 

Chief Probation Officer, the Public Defender, 

and the Clerk of Court. They are three absolutely 

critical people who traditionally would have been 

Coordinating Bodies 

under Community Corrections Acts 

Community Corrections Acts (CCA) have the potential to serve the clearinghouse function LEAA envisioned 

for CJCCs. A major difference is that a CCA is oriented 

toward corrections, while LEAA tended to be oriented toward law enforcement. CCA coordination also focuses on 

state-local relations rather than county-city relations because they are funded by the state in a desire to relieve 

prison and jail overcrowding and to control costs. 

CCAs require a local plan before a county or group of 

counties, typically within a single court’s jurisdiction, can 

receive state funds. It is the development of this plan, 

rather than the formation of a CCA board to oversee the 

use of community sanctions, that offers the real potential 

for system coordination. Because the local plan represents the trigger for receiving state funds, the state can exert significant influence in assuring that the plan is comprehensive in its consideration of alternatives and in the 

cooperation needed to make them effective. 

Most of the 17 states classified by the National Association of Criminal Justice Planners as having a CCA require that the plan be initiated by and/or submitted 

through the county government. The exceptions are Arizona, which designates the superior court, and Connecticut, Iowa, Missouri, and Texas, which designate the local 

corrections agency.M Designating general government officials to initiate and submit the plan recognizes the role 

that often only they can play in bringing treatment 

providers, the schools, general government elected officials, and all of the independent criminal justice officials 

together to support alternatives to incarceration. 

Federal Drug Enforcement Allocations 

Despite strong objections from cities, federal drug 

funds are given to the states for allocation among their local jurisdictions rather than directly to city and countygovernments. This has led at least one state, Tennessee, to 

take an approach that is reminiscent of LEAA funding in 

the 1970s. Tennessee has designated 29 regional task 

forces, eight of which are based on SMAs, to submit “ministrategies” each year for “cooperative, coordinated programs with multi-agency involvement.” Each task force is 

formed with every police and sheriff’s department sitting 

on the board of directors. Federal grant money is awarded 

to the task force, not to one jurisdiction. Thus far, however, Tennessee’s experience is mirroring LEAA in another 

way, with 70 percent of the regional grants going directly 

for law enforcement, such as improved forensic ser~ices.~’ 

Blue Ribbon Commissions 

Some governors, elected county executives, mayors, 

legislative leaders, chief judges, and presidents have used 

their positions to focus on the comprehensive challenge of 

the criminal justice system. Findings and recommendations from these types of commissions have been used 

abundantly throughout this report. 

U.S. Advisory Commission on Intergovernmental Relations 205 
To be meaningful, blue ribbon commissions need to be 

given priority by the convener in staffing, public relations, 

and the quality of appointments. Given the interrelated 

nature of the criminal justice system, they usually have the 

greatest value as a planning and coordinating tool if they 

have not been convened with too narrow a focus. For example, a proposed “National Commission to Support Law 

Enforcement” in the 1991 federal anticrime bill had no judicial, correctional, or local and state officials in its makeup, even though the International Association of Chiefs of 

Police call for a National Commission on Crime and Violence suggested that a judge, prosecutor, corrections or 

probation official, welfare agency, children’s advocate, 

and victims’ advocate be included.68 In contrast, the 1967 

President’s Commission on Law Enforcement and Ad- ministration of Justice included local and state officials 

from courts, corrections, and general government.@ 

Whatever its title, the difference between a blue ribbon commission and a task force is in its public visibility, as 

well as the breadth of its considerations and the experience of its members. Its success does not depend on the 

officials who are accountable for change being brought together; it depends on credible individuals developing a 

compelling agenda for change that can bring pressure for 

public officials to come together. 

Summary 

Most outside observers looking at any enterprise that 

has escalating costs, public distrust, and a structure of disparate roles would conclude that it needs to establish priorities and coordinate its efforts. The challenge in the criminal justice system has been to get all its independent 

authorities to come to this same conclusion. 

With hundreds of thousands, if not millions, of cases 

moving in and out of any state’s criminal justice system every year, data management represents a major operational focus of coordination for decisions about individuals, 

system management, and planning. For example: 

Public safety and/or treatment decisions require 

ready access to sources of accurate information. 

Moving individuals through the system can be no 

more efficient than the official forms that trigger 

or record action. 

Foreseeing impacts and resource needs for disparate elements requires a foundation of timely, 

relevant data. 

General government officials can assure that data systems 

established to meet these needs are inclusive, benefit 

from the technical experience gained in developing other 

data management networks, and are given budget priority 

commensurate with their potential to improve effectiveness and save system costs. 

Given that criminal justice components span state, 

county, and municipal responsibilities, general government officials also must be prepared to support cooperation with criminal justice agencies. Throughout the country, many general government and criminal justice 

rn 

rn 

rn 

officials exercise leadership to show that “cooperation and 

coordination are both required and po~sible.”’~ Coordinating mechanisms include: fiscal impact statements, 

LEAA criminal justice coordinating councils, MPO interjurisdictional committees, cooperative budget development and review by criminal justice agencies, councils and 

secretariat overview structures, and special task forces 

and commissions. 

Many innovative officials use the most pressing prob- lem in their system to draw players together. Successful 

efforts typically involve a forum for debate and resolution 

among policymakers, as well as a mechanism for operational collaboration. Such solution-oriented approaches 

have produced many different types of forums and proven 

the viability of local flexibility under a federal system. 

Concrete results in addressing each problem have built 

trust and opened the thinking of the system to more comprehensive approaches to priority setting, planning, and 

coordination-concepts that, when imposed from with- out, have been staunchly resisted in the past. 

THE DYNAMICS 

OF CRIMINAL JUSTICE CHANGE 

The preceding sections have laid out sound reasons 

for what, on occasion, are regarded as luxuries: planning 

and coordination. Without system coordination, the prime 

goal of each element of the criminal justice system will 

continue to be compromised: 

General government officials will not be able to 

control costs. 

Police resources will wasted. 

Prosecutors will find that offenders are not punished equitably. 

Public defenders will find due process reduced to 

a production line rubber stamp. 

Judges will be frustrated with lack of appropriate 

sentencing options. 

Sheriffs, jailers, and prison administrators will 

continue to face daunting liability and management challenges. 

Probation-parole officers and treatment 

providers will find it difficult to achieve results 

because of lack of punishment options to carry 

through with negative sanctions, on the one hand, 

and lack of resources to carry out positive rehabilitation, on the other. 

The public’s safety will not be enhanced. Public 

confidence will not grow. 

This final section attempts to identify the institutional 

and political barriers that must be overcome to develop an 

effective criminal justice system. Institutional bamers in206 U.S. Advisory Commission on Intergovernmental Relations 
clude clarifying intergovernmental responsibilities, integrating the components of the criminal justice system into 

the mainstream of public services, and accommodating 

lines of authority. Addressing these issues should go far in 

developing the political leadership necessary to reduce 

the bamers to public acceptance of policy changes that 

must be instituted to achieve the most productive balance. 

Clarifying Intergovernmental Responsibility 

Determining intergovernmental responsibility for 

criminal justice usually ends up balancing three facets: legal requirements and restraints, managerial efficiencies, 

and need. As each state and its localities grapple with the 

questions raised and as they, in turn, engage in debate with 

the federal government, proposed solutions also should 

be measured by the constitutional question: Is there a way 

to achieve an effective criminal justice system without sacrificing local autonomy to determine and enforce community standards? 

Legal Requirements and Restraints 

Looking at state-local relations in criminal justice, 

there are several sources of tension. First, counties feel 

caught in the middle. Although state legislatures have 

granted city, town, and county councils the power to enact 

criminal ordinances not punishable by time in prison (misdemeanors), they also retain this power for themselves. 

Therefore, while a county council must be willing, for example, to pay for the full cost of passing a law that drunk 

driving shall be punishable by incarceration in the county 

jail, the state legislature can pass the same law to apply to 

all counties and never face paying for the additional jail 

space. Likewise, if a city or town passes a drunk-driving ordinance punishable by jail time or their police forces conduct a drunk-driving crackdown, again, the county must 

absorb the extra jail costs. 

This tension increased with the budget deficits experienced by many localities in the early 1990s. For example, 

as of January 1991, approximately 45 of California’s 58 

counties opted to charge cities for booking suspects arrested by city police. Santa Clara County estimated that 

the city of Mountain View may have to pay $300,000 per 

year based on past booking practices. Although this may 

seem to be an example of increased intergovernmental 

tension, it actually can result in cities recognizing the total 

criminal justice system impacts of their political decisions 

and reducing the numbers of minor offenders sent to jail.” 

Second, counties feel caught in the middle because 

state responsibility has not been defined clearly. Most 

counties, as creatures of the state, are responsible for 

holding state prisoners until they are transferred into the 

state system. Counties historically have felt they have 

been pawns under this system. One advantage of overcrowding is that it has forced clearer resolutions of statecounty responsibility through a number of different 

means. For example, the courts decided in a 1990Texasdecision that full state funding must follow state prisoners. 

The Mississippi legislature decided in 1991 that state responsibility meant the state must house the prisoners and 

they could not be left in county jails. A blue ribbon commission in Virginia decided in 1989 that state responsibility 

should be redefined to match reasonable penal policy as to 

whether petty felons belong in prison or jail. 

Each of these resolutions achieved a closer nexus between state control and state responsibility and, thus, represents a step toward reducing criminal justice system 

fragmentation. The resolutions force a rethinking of the 

conventional wisdom that state funding follows state interests for supporting those elements of the criminal justice system for which they are accountable rather than local interests or, ideally, a unified system. 

The intergovernmental balance between the federal 

government and the states and localities is in a state of flux 

because of a perception that the federal government can 

fight crime better than states or localities. This began with 

Prohibition, gained credence with white-collar financial 

crimes, and has been spurred by sophisticated drug operations. Of at least equal significance, the perception has 

been fostered politically, starting with the 1964 presidential campaign. The perception is responsible, in part, for 

more than 3,000 acts now being defined as federal crimes 

although as previously noted the federal criminal justice 

system actually handles only 6 percent of felonies. 

The fact that increased federal law enforcement runs 

counter to the constitutional concept of a noncentralized 

criminal justice system is little debated. In fact, for most 

state and local elected officials, the major source of tension is the political pressure created by federal legislation 

for them to be equally tough on crime. There is relatively 

little concern about law enforcement activities that are 

carried out and paid for by the federal government. 

Against this backdrop, clarifying intergovernmental 

responsibilities becomes a muddied debate of issues raised 

throughout this report: 

The need for effective measures against highly 

mobile organized crime; 

The value of the federal government as a clearinghouse and stimulant for state and local initiatives; 

Unfunded federal mandates; 

The drop in intergovernmental funding €rom 27 

percent to 7 percent of federal criminal justice expenditures; 

Distribution of federal funds directly to local governments versus through each state based on its 

total criminal justice needs; 

Concerns that the distinct purview of the federal 

courts is being overwhelmed by cases that could 

be handled by state courts; 

Accusations of political one-upmanship; and 

Constitutional structure. 

Despite the fact that five major drug and crime bills were 

passed in the 198Os, the 1990s started with another highprofile federal anticrime bill. Therefore, it would seem 

that, at least for the foreseeable future, state and local 

U.S. Advisory Commlsslon on Intergovernmental Relations 207 
criminal justice system planning will need to continue to 

adapt to major shifts in policy direction from the federal 

government. 

Managerial Efficiencies 

Chapter 7 included numerous examples of intergovernmental provision of services, which in many instances 

have served as a vanguard for establishing a system’s approach to criminal justice. Such intergovernmental initiatives-fostered by budget savings, technological advances, 

and increased effectiveness-have been instrumental in 

overcoming the traditional tendency of some criminal justice 

officials to protect their turf and methods of operation. 

In these instances, the most serious bamer to an increasingly comprehensive system approach becomes who 

will take responsibility for funding. States that have a 

strong tradition of regarding localities as divisions of state 

government, with the prosecutor, judges, clerk of court, 

and sheriff operating as state constitutional officers, may 

be more likely to pay for system improvements than states 

that regard their localities as having more autonomy and, 

therefore, more responsibility. 

Local government contract arrangements or re- gional agreements-such as that provided for under 

Iowa law to finance local law enforcement through the 

formation of a special district-generally have not been 

embraced for criminal iustice. Given that \ocaMessti\\ 

have to pay for the service, any saving from consolidation has not outweighed the loss of direct control over 

the politically potent issue of law and order. Therefore, 

intergovernmental initiatives have tended to be limited 

to interagency agreements for specific services, such as 

laboratory analyses. 

Need 

Cities argue that need is the compelling factor that 

should define governmental responsibility. The argument 

that there is an intergovernmental responsibility to assist 

in proportion to the relative need of urban cores is further 

augmented, as noted in Chapter 7, by the view that the 

largest cities are regarded by many as symbols of the nation’s or a state’s health. 

In addition to the societal impact of high crime rates in 

our largest cities, all cities see themselves as the first defense 

against crime. “When there is a drug problem in the city of 

Knoxville, it is city police that go to that street corner or 

make that raid or whatever it is. It is not a highway patrolman 

from the state, and it’s not the deputy or the sheriff.”72 

County and state officials counter that arrests are 

only the beginning of criminal justice costs. “Intergovernmental issues, such as the need for new jails, more 

courtrooms, judges, etc., are easily overlooked as we respond to the need for more law enforcement on the 

In determining need, the system must be 

viewed as a whole-increased arrests are neutralized if 

cases cannot be adequately prosecuted or prison space 

is unavailable. 

The debate may then shift to prevention. 

The U.S. Conference of Mayors have acknowledged that our nation is fighting the war on drugs 

today because it lost the war on poverty. Top city 

police officials have acknowledged that in the face 

of unprecedented levels of crime and incarceration-four prisoners for every 1,OOO citizens, the 

highest level in the world-their traditional criminal justice system simply does not work.74 

Shifting the debate to prevention at least acknowledges 

that all governments have program responsibilities. 

Integrating Criminal Justice 

into the Mainstream of Public Services 

These intergovernmental political battles are overlaid on the endemic politics of isolation within criminal 

justice. Therefore, most successful coordination efforts 

have set the stage for the broadest possible ownership of 

policy changes by identifying a reason why it is in the best 

interest of each official’s mission to collaborate with and 

support other elements of the system. As underscored by 

the ABA 

[Tlhere is a seeming desire to displace attention 

from the behavior of judicial professionals to alleged artificial bamers and constraints. The first 

step is the general acceptance by the bench and 

bar of the proposition not merely that delay ex- ists,but that the delay that exists is a problem that 

must be solved.75 

The same statement could be made about the broad responsibility that must be assumed for effective correctional programs or use of police resources. 

The following subsections briefly outline the potential for leadership from each major official to forge a system of criminal justice out of its disparate pieces. The 

points made are equally valid whether the individual is the 

actual leader in bringing the players to the table or simply 

needs to be convinced of the importance of meaningful 

participation by someone else who has assumed a leadership position. However, within each autonomous arena of 

criminal justice responsibility and in convincing the public 

of the need for productive change, each player at some 

point will need to play a leadership role to forward longterm solutions. 

Executive Leadership 

Governors, county executives, mayors, and the president can use the focus of their offices to create a climate of 

public understanding of the need for change that can both 

enable and pressure other officials to act. For example, 

the National Governors’ Association has called on all governors to create multidisciplinary, intergovernmental 

blue ribbon commissions to study the corrections crisis, to 

examine the contributing factors, to develop quality data, 

and to recommend approaches to handle the pr~blern.’~ 

As head of the executive branch, most chief executives also command: 

The power of budget formation to leverage 

agency attention; 

The power to fire and hire agency heads; 

208 U.S. Advisory Commission on Intergovernmental Relations 
H 

H 

The authority to approve operating policies; and 

An oversight structure to monitor day-to-day 

agency operations. 

While these powers may be constrained in relation to independently elected criminal justice officials, if they are used 

to encourage criminal justice and treatment agency collaboration, initiatives, and planning, the resulting changes 

will lead other criminal justice officials to participate. 

Legislative Leadership 

Although they do not have the same personal command of resources as a governor or the president, most 

state legislators and members of Congress have the advantage of long-time service. Not only can they initiate 

comprehensive efforts, they also can hold the agencies responsible in future years for explaining how their activities 

are carrying out the system planning and cooperation 

called for. Examples of legislative initiatives cited in this 

report include a California study of inmate population 

management,77 an Ohio study of African-American male~,~~ and New York State’s interagency initiatives on alcohol, drugs and crime.79 

The leadership of county commissioners or city council members is often dependent on their willingness to 

specialize. If they are willing to spend the time to work directly with criminal justice and treatment officials, they 

can become effective facilitators of change. However, 

their long-term success may be constrained by their ability to 

translate the benefits of solving wide-ranging criminal justice 

problems to the voters of their relatively small districts. 

Judicial Leadership 

California’s Chief Justice Malcolm M. Lucas, as 

chairman of the State Justice Institute’s board of directors, sounded the following challenge to a conference of 

state and federal judges: 

I’d like to turn . . . to a topic that is a leading 

cause of glazed eyes in judges: the need forbetter 

planning by the courts. Like many of you, I’m 

sure, I did not originally come to the bench with a 

design for the future of my court. If I thought 

about it at all, I assumed our court’s direction was 

set largely by the executive and legislative 

branches, and initiative on my part would be futile, even if I was inclined to exercise it. 

However, my views changed after serving on 

the bench, most strikingly since becoming Chief 

Justice. It became abundantly clear to me that unless judges themselves took an active leadership 

role in planning for the long term, the future of 

the courts-as an institution-was in grave peril.80 

Before judicial leadership can come forth, there may 

first be a need to break the “macho isolationism”” of 

judges through the simple process of increased contact. 

This was the underlying theme to emerge from a unique 

conference of state legislators and judges, sponsored by 

the National Center for State Courts and the National 

Conference of State Legislatures: 

Familiarization with the roles, procedures, and 

organization of the other branch allows people 

involved in one branch to anticipate the import of 

their actions on the other. Personal contact is important, because people are more apt to talk and 

listen to people they know.82 

It was acknowledged that “the two branches have limited knowledge of each other’s institutional roles and procedures” and that “the judiciary tends to be overcautious 

in approaching the legi~lature.”~~ Theconference recommended specific steps to improve legislator-judicial working relationships, such as judicial impact statements, state 

of the judiciary addresses, interbranch coordination on 

drug treatment and education, and the inclusion of judges 

on study groups throughout the entire legislative process. 

Significantly, a survey of 40 legislators from 24 states and 

62 chief justices and court administrators from 40 states 

concluded that, “More communication between the legislative and judicial branches of state government would not 

undermine the separation of powers do~trine.”~~ 

The structure of the judiciary sometimes has resulted 

in hesitancy about who should speak for the court: trial 

court administrators, state court administrators, presiding 

judges, or chief justices. The local prosecutor, sheriff, or 

general government elected officials do not operate within a comparable hierarchy. In fact, because the judicial 

hierarchy does not control retention or compensation, 

judges who take the initiative can be effective. For example, in Kentucky, legislators hear about judicial operations 

and needs directly from circuit judges serving in their districts. The state’s judicial structure endorses this disparate 

approach as a reflection of the “significant variety of legal 

cultures” throughout Kentucky‘s 120 counties.8s 

Leadership from the Prosecutor 

and from the Sheriff 

As stated at the beginning of this section: “Without 

system coordination, the prime goal of each element of 

the criminal justice system will continue to be compromised.” Just as the self-interest of general government 

elected officials is to control costs so that they do not have 

to take the responsibility for raising taxes, independently 

elected criminal justice officials must come to see that 

their prime mission will be compromised without system 

management, coordination, and planning. 

The sheriff is often the first to experience the impact 

of the lack of system control. Ideally, the sheriff can serve 

as the catalyst for other criminal justice and general government officials to realize the need for change by devoting resources to identifying the types of prisoners being 

held in jail, administrative reasons for how long they are 

held, the cost, and the alternatives. In reality, cooperation 

typically has not occurred unless a crisis-usually in the 

form of a court order-is imminent.”6 

In contrast, while the prosecutors less often take a 

leadership role, in part because their office is not the first 

to be seriously affected by system dysfunctioning, their 

leadership can be pivotal. Their advocacy for system imU.S. Advisory Commission on Intergovernmental Relations 209 
provements is less apt to be seen as self-serving. Their 

prosecutorial mission makes them particularly creditable 

and effective in advocating alternative sanctions. 

Correctional Agency Leadership 

The average length of service for a director of an adult 

correctional agency is less than three and a half years. As 

of July 1990, only four had served longer than ten years?’ 

The political and managerial pressures represented by this 

extremely high rate of turnover make leadership difficult. 

However, this turnover also may stem in part from 

lack of leadership, as demonstrated in the following comparison of the themes of 1990 budget workshops held for 

various criminal justice officials by their national professional associations. The theme of a budget workshop for 

chiefs of police was to “go out and marshal the support of 

the community, particularly among the volunteers and 

service clubs with whom you’ve worked.”88 The theme of a 

budget workshop for judges was “sit down one to one with 

legislative 1eade1-s.”~~ In contrast, the dominant theme of a 

budget workshop for prison, jail, probation, parole, and juvenile administrators was “you can’t get support unless 

you define your mission.’eo 

The problem most correctional managers have with 

the admonition that they must define their mission is that 

others routinely define it for them. Nevertheless, “If they 

lead instead of merely administer their agencies, we can 

expect more responsible participation in the correctional 

process not only by subordinates, but by legislators, 

elected officials, laymen, volunteers, clients, witnesses, 

and victims as well.’*l 

The very fact that setting the correctional agenda is 

highly politicized represents a strong argument for why it 

is in the interest of criminal justice agencies to participate 

in informal forums. The more that other officials become 

exposed to the realities of following through on the ac- tions of the rest of the criminal justice system and on legislative mandates, the more potential allies will emerge. For 

example, one DOC administrator observed that he had to 

remain silent on many recommendations of a blue ribbon 

commission on which he served and with which he strongly 

agreed, because of the position of his governor. However, 

he added, “experienced legislators understand my position.’e2 As noted, in jurisdictions as diverse as Charlotte, 

North and Los Angele~:~ when asked to look 

at the entire criminal justice system, all criminal justice officials put more correctional resources and more courts 

ahead of more police. 

Leadership from General Government Agencies 

Many administrators in agencies outside of criminal justice have realized that clients who are in the criminal justice 

system are no less their clients. However, when the initiative 

comes from outside the criminal justice system, it is important to establish a means to continuously involve criminal 

justice officials to ensure full utilization of outside efforts. 

Education: The Dade County (Miami) school board, 

at the urging of the Chamber of Commerce, worked with 

probation and parole services and the Private Industry 

Council to dedicate staff to evaluate the academic and vocational potential of felons aged 16 to 22 and to identify 

the appropriate training programs. However, the school 

board lost a $120,000 grant to conduct the program because of lack of court referrals, despite the fact that the 

chief judge had initiated the original planning meeting?’ 

A chief judge from another state candidly acknowledged 

the same type of problem in his jurisdiction. When he initiated and chaired a local commission on education and the 

penal system, he was surprised at how “excited” the education community was at the prospect of providing services; the 

judge found, instead, that “the problem is the system.’e6 

Employment. Competition for jobs and private profit 

usually has meant that people in the criminal justice system are not included in employment training initiatives. 

Therefore, it becomes particularly important for the criminal justice system to take the initiative. For example, the 

Policy Advisory Board, established by statute under the 

1990 California prison industries referendum, consists of 

the director of corrections, the director of the employment development department, and five members appointed by the governor, who must include one labor and 

one industry representative. In another state, simply including a labor representative on a blue ribbon commission resulted in his becoming one of the most outspoken 

advocates for prison industries after seeing inmate idleness first hand while participating in the commission’s 

prison and jail tours?’ 

Social Services. The initiative for the Minneapolis 

Community and Resource Exchange (CARE) program, 

which was discussed in Chapter 6, also came from the justice system through a CJCC, but it resulted in government 

participants becoming “impressed by their ability to work 

together across agency and citykounty lines” to attack 

neighborhood drug, crime, and deterioration 

Substance Abuse. Substance abuse involves more 

general government agencies, by far, than any other criminal justice concern. A survey of Michigan state agencies 

revealed that only four of the 19 principal state departments and agencies reported no direct expenditures related to substance abuse, with a total dollar expenditure in 

1989 exceeding $250 million.* Furthermore, “Most antidrug abuse operations are camed out not by the states directly, but by local governments and nonprofit organizations,”loo as noted in the announcement of a cooperative 

agreement between BJA and Harvard’s Kennedy School 

of Government to establish a Working Group of State 

Drug Control Executives. The announcement underscored the fact that “[it] is difficult to develop and implement strategies when so many people with indirect influence are involved.”lol 

The recommendations that will come from the Harvard grant may include some that have emerged from efforts for increased coordination initially targeted simply to 

save costs and increase coverage. For example, in Athens 

County, Ohio, a case worker assigned to a welfare recipient’s case also serves as a court monitor when a condition 

of probation is also a condition of receiving public assistance. The court has the benefit of more probation supervision and the social services agencymay experience great21 0 U.S. Advisory Commission on Intergovernmental Relations 
er cooperation from welfare recipients because of the 

court order.lo2 

To summarize, leadership in forging a more effective 

system of criminal justice requires a blend of knowledge, 

position, self-interest, and desire to press for productive 

change rather than be consumed by crisis management. 

The preceding brief discussions can be criticized for not 

identifying the need for all these leadership attributes 

from each official. Nevertheless, if the means can be 

found to get the players to the table, most will rise to the 

occasion and the sum of all their reasons for being there 

will be the measure of ultimate success. 

Achieving Change 

in the Criminal Justice System 

Frequently, it is a specific crisis that compels criminal 

justice and general government officials to come together. 

Whether ongoing coordination and system planning will 

develop out of the initial thrust depends on four ingredients: involvement of the right officials, establishing an ongoing agenda, avoiding theatrics, and gaining public understanding and support. 

Involvement of the Right Officials 

Much has been said throughout this chapter about the 

need for policy coordination to be close to the officials who 

will be held accountable. Successful collaboration efforts 

stress that a “no substitute rule” must be established for 

the participation of whatever players are to reason together. It is as inhibiting to progress for a deputy district attorney to try to substitute for his or her elected boss in a meeting with the county executive, mayor, sheriff, chief judge, 

et al., as it is to substitute an agency statistician in a meeting of budget managers. 

A “no substitute” rule not only helps move decisions 

by providing that those in charge are present when decisions need to be made, it also is crucial for the consensusbuilding process leading up to any decision. The conclusion of a study of state and federal litigation coordination 

is appropriate for all officials: 

Perhaps most important to successful coordination is the strength of the personal and working 

relationship developed between the judges. Most 

judges agree that coordination is more about personalities than procedures. Successful coordination requires flexibility, innovation, and a willingness to compromise in order to develop 

arrangements acceptable to both courts. One 

judge observed that coordination requires “diplomacy, consideration, courtesy, and some degree 

of inf~rmality.”’~~ 

The study went on to discuss a wide range of contacts, 

which emphasized the informal open door that must stand 

behind and/or grow out of a formal coordination structure. 

The need to submerge individual egos also was emphasized in the judicial relations study, as it often is in discussing criminal justice-general government cooperation. 

Many anecdotal examples were gathered in the course of 

this report, and the following candid admonitions could be 

broadly applied: 

“There is no reason in this God’s green earth why 

[the relationship between sheriffs and county 

governments] shouldn’t work. . . . You’ve got to 

learn how to sit down and talk around your egos,” 

[the president of the Maryland Sheriffs’ Association said]. . . . [The assistant state attorney general who handles sheriffs’ problems observed], 

“Most of the problems I’ve heard could be handled just as well by a marriage counselor.”1o4 

Ensuring that key officials are in contact is the beginning 

of developing the mutual understanding and respect required to assuage personal concerns. 

Need for an Ongoing Agenda 

As noted, one of the reasons for the lack success in 

establishing state and local system coordination through 

the federal LEAA planning initiative was that most of the 

Criminal Justice Coordinating Councils were established 

for the purpose of receiving federal funds. The federal 

funding disappeared before these councils had identified 

their own agenda. 

The ability of successful coordinating groups to define 

an ongoing agenda seems to depend on two factors. The 

first is simply doing it. At least one member must be able to 

focus the group beyond the initial reason they were 

brought together. Alternatively, the group simply may be 

forced to stay together by the number of years it takes to 

move from initial overcrowding to constructing a new local jail or the number of years it has taken to satisfy a court 

order. The complexity and the longevity of the task acts to 

establish the viability of the group. The Hudson County 

(Jersey City) jail population committee, formed as part of 

a consent decree, exemplifies the value of a format that 

keeps key players meeting regularly. The county administrator reports, ‘‘I now have the criminal assignment judge 

and the prosecutor fighting over who has the best ideas for 

alternatives to incarceration, whereas before the prosecutor took a strict law enforcement approach . . . because, 

officially, that’s what he felt he had to say.”loS 

The second element of success in establishing an ongoing agenda is a reduced level of competition. As previously cited, in Los Angeles, the sheriff became such a 

staunch supporter of the needs of the chief probation officer that he transferred funds from his budget. In Olmstead, Minnesota, the success of the criminal justice budget coordinating council in prioritizing agency requests 

toward system improvements led to the elected general 

government officials giving the council a discretionary pot 

of money.’06 

One main source of competition, however, is limited 

dollars. As the ABA observed: 

[Tlhe justice system has been viewed as merely 

another piece in the budget pie-a piece without 

a strong advocate. . . . [Vlarious constituent parts 

of the justice system for some years have battled 

over the same small share of overall government 

resources. . . at the expense of some other part of 

U.S. Advisory Commission on Intergovernmental Relations 21 1 
the justice system, or without regard to the impact that increased efficiency in one part will have 

on another.lo7 

Even though it was intended to foster comprehensive 

planning, the phenomenon of grantsmanship under the 

LEAA approach to intergovernmental funding has been 

critiqued as exacerbating rather than relieving competition. 

An alternative view is that budget battles are often 

only another name for turf protection in interagency disputes, as expressed in the following lament of a career 

criminal justice manager: 

Unfortunately the present stress on the budgetary aspects of the system may drive us further 

apart as we all compete for the available dollars. 

Perhaps it is the fact that we do have to compete, 

on an agency-by-agency basis, that keeps the system from working as a whole . . . programs have 

met with little success. The basis for this lack of 

success is the absence of a coordinated effort due 

to lack of a common goal. Control of crime, or reducing crime is a very moral sounding intention 

that is tastefully consumed by the public. However, each agency has its own interests to promote, 

and these interests become overriding in the 

terms of pursuit of available dollars, “turf,” and 

jurisdiction protection.lo8 

Combating Theatrics through Consensus Building 

The logic that coordination depends on reducing competition which, in turn, depends on agreeing on common 

goals, is at the heart of the National Institute of Corrections’ Intermediate Sanctions Projects discussed in Chapter 4. The federal government subsidized the cost of retreats for key criminal justice officials from major 

localities. The focus of these retreats is to foster agreement on the mission of their local criminal justice system. 

Is it deterrence, prevention, punishment, or something 

else? How is this mission further defined by the way in 

which it is camed out and measured? Does it involve increased arrests, fewer violent crimes, higher clearance 

rates, longer sentences, or lower recidivism? By uncovering the differing perspectives on such questions, key officials begin to realize the magnitude of the resources required to realize their missions most effectively once the 

case leaves their agency’s control. 

The alternative is to fall into what a focus group of 

elected county officials described as “theatrics,” when 

they were asked to cite their number-one frustration in 

dealing with the criminal justice system. These officials 

provided examples of perceived theatrics, but an interview 

with a prosecutor provided cogent confirmation of the 

phenomenon when he stated with conviction that, “The 

best way to handle the general elected officials is to ‘intimidate’ them.”lW It must be noted that problems with theatrics 

came across from all sides: ‘The legislature uses the judiciary 

as a whipping boy.” “Judge bashing has increased.” “Elected 

officials are driven by the crime of the month.” 

Some systems will be stymied by the criminal justice 

system’s combination of disparate authority, specialized 

bodies of knowledge, and fear-invoking issues, because 

these factors make it easy to use theatrics to shift blame or 

force the currently popular “solution” rather than focus 

on system ramifications. These systems may never reach 

the level of agreement on goals necessary for a comprehensive approach. Nevertheless, any level of coordination 

and collaboration on specific programs still represents 

progress, as even the most pessimistic view must concede: 

Since planning requires not only a systems perspective, but consensually agreed upon goals, . . . [i]t is highly unlikely that a true system will ever 

evolve in criminal justice administration in the 

United States in the immediate future . . . because there are too many vested interests, differing philosophies on how best to control crime and 

criminals, petty jealousies among top-level administrators, an overall lack of commitment for 

the creation of such a system, and a genuine lack 

of leadership in the field. Although such a system 

may never come to fruition, . . . benefits would accrue if there at least were some efforts at systematization. [Tlhe coordination of services and programs 

is achievable-provided there is leadexship.l1° 

Developing Public Support 

Achieving public support and understanding is related directly to involving the key players, defining an ongoing agenda of relevant problems, and finding consensus 

on the mission of the criminal justice system. It is futile to 

try to develop public support without these internal efforts. The public will not understand the need for policy 

changes to provide carry through on crime-fighting efforts 

if authorities are not in agreement. Further, the media will 

not assume the responsibility to fathom and convey the 

importance of resource requirements or program successes, if officialsare not able to relate them to a well-conceptualized mission. 

Public support will be enhanced further through an 

open approach. One element of openness is outside involvement. Numerous means of increased involvement 

have been cited throughout this report, including establishing neighborhood watch, victim support, and community policing initiatives; encouraging churches, service 

clubs, and teachers to work with prisoners and to sponsor 

projects for youth and adult offenders ordered to perform 

community service; establishing community advisory committees for each state prison facility, juvenile residential 

program, and jail; and providing opportunities for student 

interns and retirees to assist with data gathering and other 

courthouse and jail duties. As noted by a former victim/ 

witness advocate who became New York City’s chief probation officer, “Instead of dealing with groups like MADD 

asa kind of enemy, we need to recognize that we both have 

the same agenda: keeping offenders from repeating. Mutual support is possible.””‘ 

Another element of opening the system is shedding 

the defensive posture that was expressed frequently in interviews: “A reporter once told me, ‘We like you guys be212 U.S. Advisory Commission on Intergovernmental Relations 
cause bad news is our good news’.’’ “The story is always 

written to sell newspapers and not to educate the people 

on what is going on.”ll* In light of such concerns about bad 

press, the experience of a longtime judge, Ohio’s Chief 

Justice C. William O’Neill, offers a sage perspective: 

Thirty-eight years of elective public office has 

taught me that you can run for public office, but 

you can’t run for editor. You are entitled to have 

the news media tell the truth about you and your 

work. Nothing more. If you promptly open your 

court and its work to the media in every way properly possible-and when you can’t comment or 

speak on a matter, explain why-you will be most 

gratified with the results.113 

Finally, opening the criminal justice system to public 

understanding and support demands that all officials-but 

especially general government elected officials who have 

the greatest contact with the public and the media-are 

informed and then communicate candidly about the nature of the criminal justice challenge. Most general government officials will not find their role in communicating 

the realities of the criminal justice challenge in the 1990s to 

the public to be an easy assignment, however. Most will be 

frustrated that there is not a clear focus to be communicated. 

On the one hand, it can be documented that imprisonment does not deter crime and that we must control the 

escalating cost of criminal justice through the use of alternative sanctions. This argument can be countered, at least 

in part, by pointing out that 80 percent of those in most 

state prison systems are incarcerated because they have 

committed violent crimes, they have long criminal histories, or they are drug dealers. Although alternatives may 

be appropriate for the others, they will provide little relief 

to state and local budgets, especially if these alternatives 

are funded at levels adequate to be effective. 

More impassioned views also are supported by the 

realities of crime. Those who are enraged by the total cost 

of crime to victims and to society because criminals are not 

locked up will focus on one set of facts, while those who 

plead for the dollars to fund social programs to prevent 

new generations of criminals are supported by a different 

set of trends. 

As the following synopsis of major findings incorporated throughout this report illustrates, general government elected officials must deal with the realities that support all of these conflicting views: 

Cost.The most compelling argument to controlcost 

is that: 

rn State and local criminal justice expenditures have 

increased 232 percent since 1970. This far exceeded the percentage increase in the cost of public 

health. The average cost of imprisonment has 

paralleled the cost of an ivy league education. 

This is countered by the fact there is little room to cut 

costs appreciably because: 

Even though surveys indicate that the majority of 

the public would favor alternative programs for 

nonviolent offenders, 213 of all felons are already 

on probation or parole. Only 5 percent1140f a typical state prison system’s population are nonviolent first-time offenders, if inmates who have 

been convicted of drug crimes are not included. 

Others would argue that it is cost effective to spend 

even more to fight crime because: 

rn Losses suffered by victims of crime include property losses and loss of income due to injury or 

death. Indirect costs to the public include welfare 

and medical costs for victims and their families 

and possible loss of economic tax base and jobs in 

heavily impacted communities. 

Efficacy of Imprisonment. There is evidence that prison is not working because: 

rn America has the highest rate of incarceration in 

the world, and yet crime has not decreased; and 

The likelihood of the offender continuing to commit crime is much more dependent on characteristics of the offender than the length of the sentence served.”’ 

Nevertheless, we will need to plan on continuing to 

incarcerate large numbers because: 

America’s crime rate is also higher than that reported in most other countries; and 

rn On average, two-thirds of felony offenders will be 

arrested again. 

Crime Prevention. Addressing the needs of at-risk 

populations by strengthening basic services is needed 

given that: 

Approximately 57 percent of prison inmates reported being under the influence of alcohol and/ 

or drugs at the time of their offense;116 many had 

an annual income of less than $lO,OOO, and had 

not completed high school at the time of their 

crime.117 Approximately half of all jail inmates have 

been raised in a single-parent household and one- third have a family member who served time.”” 

However, we need to continue to fund both criminal 

justice sanctions and prevention because the next 

generation of criminals already is moving into the 

criminal justice system, given that: 

The percentage of persons arrested for a violent 

crime who were under 18 increased more between 1987 and 1990 than in any three-year period in recent 

Responsibility. Establishing a more effective criminal 

justice system is predominantly a state and local government responsibility, because: 

m Federal courts account for only 6 percent of all 

felony convictions. 

rn 

US. Advlsory Commission on Intergovernmental Relations 21 3 
The most critical intergovernmental challenge in program delivery is driven by the fact that: 

The crime rate in cites of over 250,000 residents is 

twice as high as in the rest of the country.’” However, fighting crime is not just a city problem, because many of the criminal justice service demands created by these city residents are 

provided by county and state governments.121 

Finally, the checks and balances established to protect persons accused of a crime should not be interpreted to stand in the way of creating a criminal justice 

system. Neither does the separation of powers remove 

general government elected officials from responsibility for the effective operation of the criminal justice 

system. Rather, the authority to raise and appropriate 

funds gives general government elected officials the 

responsibility to call for resolution of conflicts that 

stand in the way of improvements. 

SUMMARY 

The strength of constitutional safeguards and institutional checks established early in our nation’s history have 

admirably protected individuals from arbitrary persecution. However, traditionally, many officials have operated 

as if the adversarial strictures controlling the determination of individual guilt and punishment also bar cooperation in achieving an effective criminal justice system. 

With overloaded courts, prisons, and jails; impossibly high probation and parole caseloads; extreme budget pressures; and rising crime rates, there is growing 

recognition that the habitual isolation of the criminal 

justice system must be challenged. Credibility and cost 

savings dictate that development of case-management 

efficiencies, a relevant flow of information, and valid 

projection instruments require the input and support of 

all users. The inherent complexity of criminal justice 

procedures and the time required to respond to physical 

and hardware needs require comprehensive long-term 

planning. The effectiveness of passing tough anticrime 

legislation and/or of increasing arrests depends on intergovernmental commitment to funding and developing the programs, personnel, and space for the courts 

and correctional system to carry through. 

These changes demand the active participation of 

general government elected officials. Through using their 

responsibility for criminal justice oversight, which is inherent in their appropriation power, they can bring key 

players together. They can foster priority-setting procedures among criminal justice officials. They can insist that 

general government agencies serve clients in the criminal 

justice system. Such initiatives will move the system toward open dialogue. By empowering all officials to speak, 

general government elected officials can counter the strident advocacy of any one official. By insisting on an inclusive process, they can keep planning, prioritization, and 

operational design close to the working level and ensure 

the relevancy and efficacy of system changes. 

Finally, by recognizing that the criminal justice system 

is not a world apart, general government officials will increase their own understanding and that of the public. 

Only through such increased understanding will the states 

and their localities supported by the federal government 

be able to move toward realistic criminal justice goals that 

reflect the priorities and needs of all of society. 

NOTE

National Governors’ Association, 

- 

A Governor’s Handbook on 

Criminal Justice (Washington, DC, 1986), p. 3. 

Federal Courts Study Committee, Report (Philadelphia, 1990), 

Vera Institute of Justice, Alcohol, Drugs and Crime (New York, 

1989), p. 1. 

4Mark Corrigan, “The Politics of Sentencing Reform,” County 

News, September 12, 1988. 

Sourcebook of Criminal Justice Statistics, 1990, p. 95. 

Ibid., pp. 76-80. 

p. 148. 

‘bid., p. 39. 

‘Congressional Record, July 15, 1991, p. S10036. 

lo Ibid. 

l1 Russell Committee, Bar Association of Baltimore City, Die 

Drug Chis and Underjhnding of the Justice System in Baltimore 

City (Baltimore, December 1990). 

Confidential interviews, 1990. 

l2 Confidential interview, 1990. 

l3 Ronald S. Neubauer, “Missouri Law Enforcement Executive 

Institute,” Missouri Municipal Review 55 (OctoberDVovember, 

14Executive Office of the President, Office of National Drug Control Policy, National Drug Control Strategy (Washington, 

DC, 1990), p. 8. 

1991): 22-23. 

l5 Ibid. 

l6 Hennepin County Board of Commissioners, Hennepin 

County Sheriff, Hennepin County Attorney, Fourth Judicial 

District Court, and Minneapolis Police Department, Hennepin’s Criminal Justice System and the New Public Safety Facility 

(Minneapolis, 1990), p. 31. 

l7 BJS, Models of the Criminal Justice System: A Review of Existing 

Impact Models, by William Rhodes (Washington, DC, 1990). 

l8 Hennepin County Board of Commissioners, et al., Hennepin’s 

Criminal Justice System and the New Public Safety Facility. 

l9 James R. Coldren, Jr., “Policies Count When Assessing Your 

Jail Needs,” County News, January 21, 1991, p. 6. 

2Q Testimony of State Senator Bill Richardson on Behalf of the Na- tional Conference of State Legislatures before fhe US. House of 

Representatives, Government Operations Subcommittees on 

Legislation and National Security and Government Information, 

Justice and Agriculture (Washington, DC: National Conference 

of State Legislatures, May 2, 1990). 

Ohio Governor’s Committee on Prison and Jail Crowding, Fi- nal Report, by David Diroll, Candace Peters, and Steven Van 

Dine (Columbus: Governor’s Office of Criminal Justice Ser22 Martha A. Fabricius and Steven D. Gold, State Aid to Local 

Governments for Corrections Progmms (Denver: National Con- ference of State Legislatures, April 1989). 

vices, 1990). 

214 U.S. Advisory Commission on Intergovernmental Relations 
23 Letter from Lt. Col. B.D. Smith of Missouri State Highway Patrol, 1990. 

24 Allen J. Hansen, “Sharing Information among Agencies,” 

California County (September/October 1989). 

25 Harris County Community Justice Council, Hanis County Com- munity Justice Plan: Fiscal Ear 1991 (Houston, 1990) p. 32 

26 Ibid. 

27 Jonathan Walters, “Cops and Courts Are Turning to High28 “Despite Improvements, Many Rap Sheets Still Missing Dis29 Ibid. 

30 Walters, “Cops and Courts Are Turning to High-Tech Tools.” 

31 Ohio Governor’s Committee on Prison and Jail Crowding, Fi- nal Report. 

32 American Bar Association, Defeating Delay: Developing and 

Implementing a Court Delay Reduction Program (Chicago, 

1986), p. vii. 

33 BJS, “Profile of Jail Inmates, 1989,” BJS Special Report, April 

1991. 

34 Hennepin County Board of Commissioners, et al., Hentiepin’s 

Criminal Justice System and the New Public Safety Facility. 

35 Hansen, “Sharing Information among Agencies.” 

36Allen Breed and Barry Krisberg, “Community Corrections: A 

State and Local Partnership,” County News, September 12, 

1988. 

37 Ibid. 

38 Dennis S. Schrantz, “Michigan’s Community Corrections 

Act,” Overcrowded Times, April 1992. 

39 Harris County Community Justice Council, Harris County 

Community Justice Plan: Fiscal Ear 1991, p. 14. 

40 Todd R. Clear and Kenneth W. Gallagher, “Probation and Parole Supervision: A Review of Current Classification Practices,” Crime & Delinquency 31 (July 1985). 

41 “Tennessee Moves to Create Statewide Crime Reporting System,” Tennessee Town & City 41 (May 11, 1992). 

42 Confidential interview, 1990. 

43 Testimony of State Senator Bill Richardson. 

44 Ibid., p. 6. 

45 Federal Courts Study Committee, Report. 

Tech Tools,” Goveming 3 (October 1990). 

position Information,” The Compiler 10 (Spring 1991): 3. 

Cited inNational Governor’s Association, 1989 Policy Position 

21.5, from a recent report of a special committee of the Ameri- can Bar Association on Criminal Justice in a Free Society. 

47 U.S. Advisory Commission on Intergovernmental Relations, 

State-Local Relations in the Criminal Justice System (Washing- ton, DC, 1971), p. 54. 

48 Jeffrey Austin, “Evening Narcotics Court: Burning the Mid- night Oil,” The Compiler 10 (Summer 1991): 15. 

49Federal Courts Study Committee, Report, p. 36. 

Office of National Drug Control Policy, National Drug Control 

Strategy, p. 8. 

51 Hennepin County Board of Commissioners, et al., Hennepin’s 

Criniinal Justice System and the New Public Safety Facility, p. 5. 

52 Florida Advisory Council on Intergovernmental Relations, 

County Jail Expenditures in Florid& A Fiscal Impact and Ex- planatory Analysis uallahassee, September 1990). 

53 Christina E. Morehead, A Criminal Justice Planning Model for 

King County, Dissertation for Master of Urban Planning, University of Washington, June 1991. 

54BJS, Report to the Nation on Crime and Justice (Washington, 

”Taken from interviews with the Association of Criminal Jus- 

” Morehead,A Criminal Justice Planning Model forKing Coiinty. 

57 Daniel L Skoler, Organizing the Non-System (Lexington, Mas- sachusetts, D.C. Heath, Lexington Books, 1977), p. 257. 

58 Comptroller General of the United States, State and Cocinty 

Probation: System in Crisis (Washington, DC, U.S. Department ofJustice, LawEnforcement Assistance Administration, 

1976), p. 71. 

Ibid., p. 264. 

DC, 1988). 

tice Planners, 1990. 

59 Skoler, Organizing the Non-System, p. 257. 

61 Confidential interview, 1990. 

62 Skoler, Organizing the Non-System. 

63 Vera Institute, Alcohol, Drugs and Crime (1989). 

64 Hennepin County Board of Commissioners, et al., Hennepiii’s 

Criminal Justice System and the New Public Safety Facility. 

65 Michael Mahoney, taken from American Correctional Association panel, Winter 1991. 

66 Sandy Pearce and John Madler, A Compendium of Comniunity 

Corrections Legislation in the United States (Raleigh North 

Carolina Sentencing and Policy Advisory Cornmission, October 1991). 

67Shar~n H. Fitzgerald, “Drug Money Is Available, But It Has 

Long Strings,’’ Tennessee Town & City 42 (March 25, 1991). 

Letter from Lee I? Brown to President George Bush, October 

26,1990. 

69 President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 

(Washington, DC, 1967). 

”Letter from Alvin Cohn to Ronald D. Allen, November 9, 

1990, p. 2. 

71 “Police Want a Break from Jail Booking Tab,” Insight 7(February 11, 1991). 

72 Russell Committee, The Drug Crisis and Underfirnding of the 

Justice System in Baltiniote City, p. 1. 

73 Mayor Victor H. Ashe, U.S. Advisory Commission on Intergovernmental Relations Meeting, March 1991. 

74 Ann Klinger in Intetgovemmental Perspective 17 (Winter 1991): 

45. 

75 Maureen O’Connor, Jean Dore, and Gilbert Bonnemaison, 

“Concern for Violent Crime in US. Is Worldwide,” US. Mayor, November 18, 1991, p. 3. 

76 American Bar Association, Defeating Delay: Developing and 

Implementing a Court Delay Reduction Program, p. 2. 

77 Governor Bob Miller of Nevada, before the National Association of Counties Conference, January 11, 1991. 

78 (California) Blue Ribbon Commission on Inmate Population 

Management, Final Report (Sacramento, January 1990). 

79 (Ohio) Governor’s Commission on Socially Disadvantaged 

Black Males, Ohio’s African-American Males: A Call to Action, 

Volume One and Two (Columbus, 1990). 

8o Vera Institute, Alcohol, Drugs and Crime (1989). 

81 Malcolm M. Lucas, “State-Federal Judicial Relationships,” 

State Justice Institute News, Summer 1992, p. 7. 

82Nancy C. Maron, Linda K. Ridge, John Martin, and Carol 

Friesen, Legislative-Judicial Relations: Seeking a New Partner- ship (Williamsburg, Virginia: National Center for State Courts, 

1989) p. vi. 

U.S. Advisory Commission on Intergovernmental Relations 21 5 
83 Ibid. 

84 Ibid., p. v. 

”Ibid., p. 7. 

“Ibid., pp. 24-25. 

87 Interview with Wayne Huggins, National Governors’ Associ- ation Panel, May 22, 1991. 

” George Camp and Camille Camp, The Corrections Yearbook: 

Adult Prisons and Jails (South Salem, New York Criminal Jus- tice Institute, 1990). 

89 Taken from Budget Workshop, International Association of 

Chiefs of Police, October 8, 1990. 

Taken from Budget Workshop, Council of Chief Judges, October 30, 1990. 

91 Taken from Budget Workshop, American Correctional Association, August 15, 1990. 

’* Alvin Cohn, “The Failure of Correctional Management Revisited,” Federal Probation 33 (January 1979): 15. 

93 Confidential interview, 1990. 

g4 Charlotte-Mecklenburg City Council, The Charlotte-Mecklen- burg Criminal Justice System and Crime and Drug Prevention Ef 

forts: Workslzop (Charlotte, September 4, 1990. 

95 David Freed, “The Only Agreement on Crime: No Easy Answers,” Los Angeles Times, December 22, 1990. 

96 Letter from Jack Nichols to Vivian Watts, December 21,1990. 

”Confidential interview, 1990. 

98 Confidential interview, 1990. 

99 Steve Cramer, “City Ideas that Work,” Nation’s Cities Weekly, 

July 29, 1991. 

loo Donald L. Reisig and Richard J. Liles, “States Must Lead Local Efforts,” Joiinial of State Government 63 (1990): 52-53. 

lot Harvard University, John E Kennedy School of Government, 

“Bureau of Justice Assistance and Kennedy School Set Cooperative Agreement on Anti-Drug Efforts,” Harvard University Announcement, October 4, 1991, p. 1. 

‘021bid., p. 2. 

lo3 Ohio’s African-American Males: A Call To Action, Volume 

One. 

lo4 William W. Schwarzer, Nancy E. Weiss, and Alan Hirsch, “Ju- dicial Federalism in Action: Coordination of Litigation in 

State and Federal Courts,” paper presented at National Conference on State-Federal Judicial Relationships, April 1992. 

lo5 ‘A Sheriff‘s Lot Can Be a Tricky One,” Baltimore Sun, May 10, 

1992. 

Geoffery S. Perselay, County Administrator, workshop panelist, American Correctional Association, August 14, 1990. 

lo7 Confidential interview, 1990. 

log American Bar Association, Report of theTask Force on the Chis 

IO9 Letter from JackNichols to Vivian Watts, December 21,1990. 

‘“Confidential interview, 1990. 

‘I1 Alvin Cohn, “Training in the Criminal Justice Nonsystem,” 

‘121nterview with New York City’s chief probation officer, June 

‘13 Confidential interviews, 1990. 

‘14 American Bar Association, Defeating Delay: Developing and 

Implementing a Court Delay Reduction Program, p. 65. 

Virginia Department of Corrections, Research and Evaluation Unit, Virginia Prison Population Fact Sheet (Richmond, 

December 30, 1988). 

‘16 “Recidivism of Prisoners Released in 1983,” BJS Bulletin, 

April 1989. 

ll’BJS, Fat Sheet: Drug Data Summary (Washington, DC, No- vember 1991). 

Sourcebook of Criminal Justice Statistics, 1990, p. 614. 

‘I9 Ibid., p. 596. 

12’ACIR computation from Uniform Crime Report, 1990. 

12’ Ibid., p. 154. 

in the Criminal Justice System (Chicago, 1990), p. 10. 

Federal Probation 28 (June 1974): 34. 

1989. 

21 6 U.S. Advisory Commission on Intergovernmental Relations 
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