Criminal Justice Reform: Suggested Changes for Tennessee

Testimony Crime and Justice

Criminal Justice Reform: Suggested Changes for Tennessee

October 20, 2014 About an hour read
John Malcolm
Vice President, Institute for Constitutional Government
John is vice president for the Institute for Constitutional Government and director of the Meese Center for Legal and Judicial Studies.

Testimony before the Tennessee Senate Judiciary Committee on September 16, 2014

Thank you for the opportunity to speak to you about some potential reforms that you may wish to consider to the criminal justice system in Tennessee. I applaud Governor Haslam for establishing a broad-based, bipartisan Task Force on Sentencing and Recidivism,[1] and I applaud you, Senator Kelsey, and your fellow Senators on both sides of the aisle for the leadership you have demonstrated by convening today’s hearing on this important issue. As you appear to have recognized already, any effort at serious criminal justice reform must be bipartisan, or it is not likely to succeed.

My name is John Malcolm. I am the Director and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. The views I express in this testimony are my own, and should not be construed as representing any official position of The Heritage Foundation.

I have also spent a good deal of my career involved in the criminal justice system—as an Assistant United States Attorney, an Associate Independent Counsel, a Deputy Assistant Attorney General in the Criminal Division at the U.S. Justice Department, and a criminal defense attorney. Therefore, I can speak to you today as someone who has experience on both sides of the courtroom.


When crime rates soared in the 1960s, the idea of putting more people in prison for longer periods of time made sense, and, at least to some extent, it worked. Crime rates eventually leveled off and, since the 1990s, have dropped. While there are certainly places in this country where crime rates remain staggeringly and persistently high, we are, for the most part, safer. Increased incarceration, especially of violent offenders, deserves some of the credit, along with other factors such as advances in policing techniques such as hot-spot policing in high-crime areas and greater attention by homeowners to self-protection through the installation of locks, burglar alarms, and other measures.[2]

Economist Steven Levitt has estimated that approximately 25% of the decline in violent crime can be attributed to increased incarceration.[3] William Spelman has estimated that increased incarceration may be responsible for as much as 35% of the reduction in violent crime.[4] While hardly insignificant, this means that there are other factors that would account for the remaining 65 percent or more of the reduction in violent crime. Moreover, incarceration, while necessary, is a very expensive option.

In addition to budgetary expenditures, increased incarceration has come with other costs too. There are now over two million adults behind bars and, as of March 2009, roughly one out of every 31 adults is under some form of correctional control, either through incarceration or supervision; this compares to one out of every 77 adults during the presidency of Ronald Reagan.[5]

This has an impact not only on the life prospects of the offenders themselves, but also on their family members, who are often unintended casualties when a loved one is sent away to prison for a long time. The Pew Charitable Trusts estimates that as of 2010, one out of every 28 children has a parent behind bars, up from one out of every 125 children in 1985.[6] Some parental figures, of course, are violent or commit crimes that endanger their children. Not surprisingly, when such a parent is incarcerated, family prospects may actually improve. However, that is not the case for the vast majority of families. Poverty and homelessness rates are higher among families when the father is in prison. Without a positive role model in their lives, many children flounder.[7] Studies show that the children of an incarcerated father struggle more in school, act more aggressively, and have difficulty forming positive relationships with their peers.[8]

Nobody in his right mind disputes the fact that there are some people who should go to prison and never return to society because of the continuing threat that they pose to public safety. However, most inmates do not fall into that category and most of them will, in fact, return to our communities.

Trying to improve the criminal justice system is a complicated process. Too often, politicians accept easy, simple answers that often prove wrong because they are based on limited information or faulty assumptions. We need to think about the criminal justice system in a holistic way. We need to think about how we define crimes, who we send to prison, how long we send them there, what we do with them while they are in prison, and what we do with them once they are released, including any collateral consequences that we impose upon them, so as to reduce the risk that they will commit additional crimes and end up back in prison.


State Efforts at Reform

There are presently over 215,000 people incarcerated in federal prisons, almost half of whom are there for drug-related offenses. [9] Since the enactment of mandatory minimum sentencing laws for drug offenses in the 1980s, the federal prison population has increased by more 800 percent.[10] In Fiscal Year 2001, the Bureau of Prisons constituted roughly 20 percent of the Department of Justice’s discretionary budget. Today, it is 25 percent of DOJ’s budget and is projected to exceed 28 percent by Fiscal Year 2018. This does not include the costs of the Marshal’s service to detain and transfer prisoners, which is currently 4.3 percent of the Department’s budget. This means less money for investigators, prosecutors, victim’s services, grants to state and local law enforcement authorities, and other Departmental priorities. Federal prisons are 36 percent over capacity today and, at the current rate of incarceration, are projected to climb to 44 percent over capacity by 2018.[11]

For many states, the costs associated with prison are the second largest item in their budgets, behind only Medicaid.[12] Not everyone was convinced that this was money well spent. In Alabama, for instance, officials discovered that the state’s prisons were at nearly 200% capacity, yet the state was still ranked 8th in terms of violent crime rates. Clearly the current system did not appear to be working well. Moreover, in order to get to 137% of capacity, officials realized that the state would need to spend an estimated $600 million on prison construction.[13] 

Here in Tennessee, the budget of the Department of Corrections has grown 28.4% over the past five years, from $700,520,000 in FY09 to $899,270,500 in FY13.[14] Since 1999, the number of incarcerated felons in Tennessee has grown by 32.6%, from 22,539 to 29,885.[15] Five of Tennessee’s 14 prisons are presently over capacity, and another eight are currently operating over 95% of assigned capacity.[16] When prisons become overcrowded, there is less money and manpower to provide much-needed treatment, educational, and skills-enhancement programs in prison, and inmate-to-staff ratios can grow to levels that are unsafe for prison staff and other prisoners.

But the state of the Tennessee Department of Corrections (TDOC) facilities is not the entire picture. Tennessee relies heavily on local jails to house its inmates, and in recent years the growth in the state’s prison population has fallen disproportionately on the local facilities. While the system-wide population grew 32.6%, this can more accurately be thought of as two distinct pools of inmates: those serving time in state facilities, and those serving time in local jails. Since 1999, state facilities have seen their populations increase by 26.3%, while local jails have seen their incarcerated populations jump a staggering 51.1%.[17] This has created a significant overcrowding problem in local jails; as of July 2014, 47 local jails reported being overcrowded, with one reporting that it was housing 55 inmates in a facility with only 13 beds.[18] For some inmates local jails are overflow housing for TDOC prisons that no longer have the beds to house them. Others, however, will serve the entirety of their sentences (up to 3 or 6 years, depending on the locality) in a jail.

Faced with expanding prison populations and shrinking budgets, a number of states, including Alabama, have begun to reassess whether there are ways to protect the public safety of their citizens in a more effective and cost-effective manner. In order to address spiraling costs and prison populations, a number of states are turning away from the traditional “lock-‘em-up-and-throw-away-the-key” approach of punishing offenders even more severely and are trying out some new ideas, a number of which look very promising and warrant further study.

Several states have begun reassessing the need to impose ever-increasing, and in some cases mandatory, sentences for a variety of offenses, especially non-violent offenses. According to the Vera Institute of Justice, at least 29 states have taken steps to roll back mandatory sentences since 2000.[19] Crime rates have continued to drop. For example, Michigan eliminated mandatory minimum sentencing for most drug offenses in 2002 and applied the change retroactively (nearly 1,200 inmates became eligible for immediate release), yet between 2003 and 2012, violent crime rates dropped 13 percent and property crime rates dropped 24 percent. Texas has implemented a number of changes, including reduced sentences for drug offenders,[20] and crime rates are the lowest in that state since 1968. Texas’s prison system is operating at 96% capacity, compared to the federal system at 136% capacity.[21]

In a recent report entitled “States Cut Both Crime and Imprisonment,”[22] the Pew Charitable Trusts found that over a five-year period, states that instituted reforms and actually cut their imprisonment rates experienced greater drops in crime than those that increased their increased their imprisonment rates. Between 2007 and 2012, the ten states that decreased incarceration rates the most experienced a 12% reduction in crime while the ten states that increased incarceration rates the most experienced a 10% reduction in crime.

Each state is different, of course, and some anomalies existed. For instance, during the five-year period, New Hampshire cut incarceration rates by 5% and crime increased by 17% (which might suggest that more incarceration is needed), while in South Dakota, crime rose by 20% despite the fact that incarceration rates rose 5% (which might suggest that more incarceration had little impact or perhaps an adverse impact on crime rates). Similarly, in Arizona, incarceration rates rose by 4% and crime fell by 21%, which might suggest that more prisoners means less crime until one considers the experience in Maryland where crime fell by the same 21% even though Maryland decreased its incarceration rate by 11%.

During that time period, Tennessee increased its incarceration rate by 3% and experienced a healthy 17% reduction in crime. While this is great news for the citizens of Tennessee, I would note that nine states experienced the same or higher crime reduction rates while at the same time reducing their incarceration rates. What is the takeaway? As I mentioned earlier, estimates suggest that incarceration accounts for only a portion of the reduction in crime. State experiences certainly seem to bear that out, and it is no longer axiomatic that putting away more people for longer periods of time will reduce crime. States looking to bring down crime rates should be creative in their thinking and methodical in their approach. Some alternatives to prison include work release programs, pretrial diversion programs, supervised intensive restitution programs, community corrections programs, incentive-based credits, and specialized courts. Many of these programs are trying to limit guesswork by utilizing empirically supported research and evidence-based practices to help adjust sentencing and criminal justice policies.

Law enforcement officials need to be incentivized to establish and reach goals that reduce crime and make communities safer, not goals that overwhelm courts and swell prison populations. You need to encourage creativity and reward innovative people based on outcomes, not outputs. You have to align incentives with policies designed to move the system from one that rewards growth of the system itself to one that rewards better results for the community at large, and you should do it by tying funding to goals that have robust and achievable performance measures.[23] After all, as economist Steven Landsburg so eloquently stated, “Most of economics can be summarized in four words: People respond to incentives. The rest is commentary.”[24]

Going forward, Tennessee should establish meaningful performance metrics in its criminal justice system, and the success or failure of the system to meet these goals should be regularly and routinely evaluated. Tennessee should prioritize collecting, retaining, and analyzing data on offenders as they matriculate through the judicial system, including post-release employment and recidivism data. The TDOC should develop the tools, the systems, and the personnel skills necessary to complete that analysis. Having this information, and making it available to decision makers and policy experts, could make all the difference as Tennessee crafts future reforms.


Limit Sentencing

One way to address the high cost of sentencing, especially when compared to the cost of probation or community treatment programs, is by scrutinizing carefully what offenses result in prison terms, and the lengths of sentences that are imposed for violations of criminal law. I have written and spoken on other occasions about the need to avoid prosecuting people for obscure offenses, particularly those that lack an adequate mens rea requirement, by engaging in conduct which is not in and of itself morally blameworthy, and which your average person would not know constituted a criminal offense.[25] I have also written that even with respect to offenders who deserve to be prosecuted and punished, it is possible for the pendulum to swing too far when it comes to sentencing.[26] This is especially true when it comes to low-level drug users, many of whom engage in drug dealing to support their own habits. Tennessee has a three-strikes law[27] and some pretty severe penalties for drug offenses.[28] Moreover, drug offenders make up the single largest category of incarcerated offenders in Tennessee, serving an average sentence of 9.7 years.[29] Whether these sentences are appropriate and continue to serve the best needs of Tennessee are issues that warrant further study.


Expand Earned Time Credits

Like other states, Tennessee has a strict truth-in-sentencing regime in which many offenders must serve at least 85% of their sentences[30] before being eligible for early release. Tennessee law requires that certain offenders serve 100% of their sentence,[31] and are, therefore, ineligible for early release. Truth-in-sentencing laws are generally enacted for an understandable and laudable purpose: to provide assurances to the public, long accustomed to hearing that an offender has received a long sentence only to be released after a short period of time, that sentencing regimes are no longer deceptive. Most states and the federal government provide opportunities for inmates to shave off a small amount of time from their sentences through “good time” credits, by following prison rules and behaving themselves while incarcerated.[32] While good behavior is certainly important and helps the prison staff maintain discipline, it does not do much to strengthen an inmate’s skills to reduce the risk of recidivism upon release.

In general, people who have been incarcerated have less education and lower literacy levels than the general population, which, along with their criminal record, is a serious impediment to their ability to find gainful employment. A recent study by the RAND Corporation found that offenders who participate in correctional education programs are 43% less likely to recidivate and 13% more likely to find a job than those who do not, and that the costs associated with such programs are far less than the costs of reincarceration.[33] 

To help address this issue, a majority of states now offer inmates the opportunity to reduce their sentences through “earned time” credits, by successfully completing educational, jobs skills, anger management, and substance abuse programs, among others.[34] The types of programs that qualify for earned time credit, which offenders are eligible to take such programs, and the amount of credit given vary from state to state. Most states have procedures in which offenders can lose credit through misbehavior and get it reinstated through good behavior. Tennessee currently allows offenders to earn up to 8 days per month (as well as up to another 8 days per month for good behavior) for participating in work, educational or vocational training programs.[35] Tennessee also offers an additional one-time credit of 60 days for successful completion of a pre-approved educational program resulting in a GED or higher degree; however, this additional credit is not available to offenders who are required to serve at least 85% of their sentences.[36] The reach of these programs is also limited by Tennessee’s reliance on local jails, which, because they are typically designed to house offenders for a short period of time, will often lack the facilities necessary to offer the types of programming described here.

Studies have revealed with some consistency that there have been no significant increases, and in many cases, there have been significant decreases, in rates of recidivism between those who are released early and those who serve a full term.[37] Some states, including Mississippi, Louisiana, and West Virginia, have expanded their use of earned time credits or relaxed their truth-in-sentencing laws in order to encourage more inmates to participate in such programs,[38] in the hope that this will ultimately improve public safety by reducing recidivism rates. This, of course, may relieve overcrowding in a way that will enable prison guards to focus their attention on those who pose the greatest danger, and may also result in some cost savings. Tennessee may also wish to consider relaxing its truth-in-sentencing standards and expanding the number of earned time credits available, especially for low-risk offenders, to encourage inmates to take positive steps towards increasing the likelihood that they will become productive members of society upon release.   


Community-Based Programs

Sending low- and medium-level offenders to prison can often prove counterproductive since such offenders often leave prison far more dangerous than when they entered. The purpose of community corrections programs is to expand the options available when it comes to pretrial diversion, in which an alleged (or admitted) offender can get pending charges dismissed (or expunged) upon completion of a community-based program, to sentencing low- to medium-risk offenders by diverting them away from prison cells, which are therefore kept available for violent and repeat offenders, or to establishing conditions of release and suitable re-entry for those leaving prison. In other words, such programs can be used on the front end of the process to provide a “last chance” to somebody prior to incarceration or on the back end to enable offenders who are completing their sentences to gradually re-enter the community in a controlled and supervised way. The difference in cost between institutional and community-based corrections is also sizeable.[39] A number of states, including Alabama, Arkansas, Colorado, Illinois, Louisiana, New Jersey, Oregon, Texas, and West Virginia, have recently expanded their diversion and community corrections programs.[40]

Different states employ a wide variety of community-based corrections programs to assist those who have just been or are about to be released from prison. Kentucky, for instance, recently implemented a Mandatory Reentry Supervision Program. Early data indicates that offenders completing the program are 30% less likely to reoffend and go back to prison than inmates who were released before the program took effect.[41] Minnesota has a faith-based re-entry program called the InnerChange Freedom Initiative, which relies extensively on private funding and volunteers. The program consists of Christian religious services and Bible study (although it is open to non-Christians), individual counseling, substance abuse programs, cognitive skills development, mentoring, and support groups. Program participants are 26% less likely to be re-arrested, 35% less likely to be convicted of another crime, and 40% less likely to be put back in prison for a new offense, producing a net benefit (measured by the program’s impact on state income tax contributions, victimization costs, criminal justice system costs, and lost productivity of prisoners) of $8,300 per participant.[42] In addition to offering their own programs designed to provide vocational programs, Texas requires prison wardens to identify and encourage volunteer and faith-based organizations to provide job and life skills training, parent training, substance abuse and educational programs to inmates prior to release. Texas is also undertaking a pilot program in the Houston area to provide post-release programs for mentally ill offenders, which includes access to social, clinical, housing, and welfare services.[43]

Tennessee currently operates 19 community corrections programs, managed by a collection of counties, human resources agencies, and non-profits. Community corrections programs are offered primarily to offenders as a “last alternative to incarceration.” Based on arrest records, criminal histories, and their potential for rehabilitation, certain offenders are given a final opportunity to avoid prison terms.[44] Just like the probation and parole system, which is managed by TDOC, community corrections programs offer offender monitoring and supervision at a cost of approximately $4 per day, per offender.[45] Tennessee appropriated $28.98 million to fund community supervision in fiscal year 2013, although some of the costs associated with community corrections programs are offset by fees collected from program participants.[46]

In Tennessee, community corrections programs vary widely, with the TDOC tasked with assisting in the development of plans specific to each program. Local agencies have the option of developing both noncustodial and residential corrections programs. Noncustodial services must offer outpatient treatment for alcohol and drug use, supervision of community service and victim restitution, counseling, and house arrest monitoring. Residential programs must offer housing, apart from local jail facilities, for inpatient treatment and detoxification. Nonviolent parole and probation violators may be housed in residential facilities.[47] Both types of plan call for intense supervision and monitoring, and for mandatory drug testing.[48]

Community-based programs can include overnight penal facilities, but critically, they enable the offender to remain employed and maintain contacts with family members and to work and pay for the costs of their incarceration, restitution, and family support. This is important because studies have shown that involvement with family is an important factor during the time when an offender is adjusting to reentering society, with higher levels of family support being linked with higher employment and lower recidivism rates.[49] 

Unfortunately, detailed data on Tennessee’s community corrections are hard to come by. Each of the 19 programs appears to have developed its own unique plan, and consequently there is no uniformity in program capability, design, or efficacy. There is something to be said, certainly, for the value of experimentation, particularly in programs such as these, but it is problematic if that variety equates to lower standards of quality and efficacy in some programs. An offender sentenced to community corrections in one part of the state ought to receive the same, high-quality care as those in another part of the state.

Most probation and parole officers have huge, unmanageable caseloads, sometimes numbering in the hundreds, thereby limiting their abilities to effectively supervise offenders. According to a recent estimate, Tennessee has 759 probation and parole officers who are responsible for supervising 13,546 paroled ex-offenders and 57,234 probationers.[50]

Such a system presents a façade but not the reality of protecting public safety. To address this, many community corrections programs utilize validated risk and needs assessment tools that help corrections officers tailor treatment programs that best suit the needs of the particular offender and that help assess which offenders are most likely to recidivate, thereby enabling officials to allocate scarce and critical resources to those offenders who pose the highest risk of recidivating. In fact, Tennessee law requires that validated risk and needs assessments be utilized in the development of offender reentry plans.[51]

Risk and needs assessment tools, which are used by several states,[52] are designed to help predict in an objective way the recidivism risks for different offenders at different points in the criminal justice system.[53] Use of such scientifically validated tools can serve many purposes. Such tools can help a judge fashion appropriate conditions of release for an accused pending trial or of a convicted offender prior to sentencing. They can help officials improve communication with, and monitoring of, offenders. They can help professionals tailor treatment plans, be it medication, cognitive behavioral therapy or something else, based on each offender’s identified needs either during incarceration or post-release. They can also help judges and prison officials determine who is and who is not a good prospect for early release and what conditions of release ought to be included based on that offender’s needs and the particular risk factors he poses. Although such tools vary somewhat, they typically include the use of actuarial tools designed to assess risks and needs associated with an offender accompanied by an evaluation by professionals of answers to questions on a variety of criminogenic risk factors associated with that offender including criminal history, employment history, financial stresses, educational background, familial relations, residential stability, substance abuse history, associations with criminal peers, anti-social thinking, mental health history, emotional control and aggression, coping mechanisms, problem solving abilities, and other pertinent personality traits.

Tennessee’s risk and needs assessment standards are presently in flux, with the TDOC working diligently to incorporate a substance abuse screening tool developed by Texas Christian University.[54] The TDOC already incorporates some of the recognized risk and needs “best practices” when it comes to assessing offender risk levels. The inclusion of a substance abuse tool will hopefully improve and refine the TDOC’s current assessment capabilities. While Tennessee’s justice system tests the effectiveness of the new standards, and debates the relative roles of subjective versus objective, actuarial methods of judging offenders’ risks of recidivism, I cannot overstate the importance of collecting and analyzing reliable, accurate data. Whatever the look and feel of the final assessment tools, the goal is, and should remain, to lower rates of offender recidivism and to help offenders get into treatment programs best suited to their individual needs.


Specialized Courts

Specialized courts, which have dockets that focus on targeted groups of offenders sharing certain common characteristics, can play a vital role in ensuring that offenders comply with community corrections programs. Several states, including Louisiana, Michigan, Missouri, Texas, West Virginia, and Washington, have recently expanded their use of specialized courts to address the needs of veterans, the mentally ill, and those suffering from drug or alcohol dependency, among others.[55]

The federal and state inmate populations share one overwhelming similarity: huge numbers, probably over half, of these inmates have mental health problems, substance abuse issues, and, in most cases, both.[56] In most cases, these conditions are left untreated while the person is in prison, and both conditions are connected with staggeringly high rates of recidivism. Is it any wonder that recidivism rates in this country remain high[57] and that prisons have become a revolving door? 

Incarceration won’t solve the problems associated with mental health and drug addiction. With respect to drugs, one would hope that sending somebody to prison might at least have the salutary effect of helping that person kick his dependency by keeping him away from drugs. Not likely. The sad reality is that drugs are often as readily available inside prison as they are outside prison.[58] Moreover, as things stand, it is unlikely that the addict in prison will get the treatment that he or she so desperately needs. A study by the National Center on Addiction and Substance Abuse at Columbia University in 2010 found that while 65% of all inmates meet the medical criteria for substance abuse or addiction, only 11% receive treatment at federal and state prisons and local jails.[59]  According to some experts, more than half of inmates with histories of addiction relapse within one month of release, and the risk of overdose appears to peak in the first few weeks after release.[60]

As things stand, we are spending billions of dollars cleaning up the mess left by recidivating offenders who suffer from untreated alcohol and drug dependency and mental illness issues, rather than spending some of that money helping people overcome these problems. Offenders who are sent to prison should receive the care they need following a careful assessment by intake and health care professionals who are given access to that offender’s treatment history, if any exists, so that they identify those who have problems with addiction and the underlying issues that fuel that addiction, such as depression, anxiety or post-traumatic stress. Similarly, those who are released  --  and let’s face it, approximately 95% of offenders will at some point be released into our communities[61]  --  should receive speedy follow-up care of some sort and active supervision in their communities to improve both public safety and improve their odds of success.

Specialized courts have shown great promise in addressing offenders who suffer from mental illness or dependency issues or both. Drug courts attempt to merge the perspective of the criminal justice system, which views drug or alcohol addiction as a form of anti-social behavior manifested by those who commit or are likely to commit crime, and of the medical profession, which views addiction as a chronic and relapsing disease that can change an individual’s thinking and behavior. As of June 30, 2013, there were over 2,800 drug courts operating throughout the United States, including many in Tennessee.[62]

Drug courts can be utilized as an alternative or adjunct to more traditional court processes at any point in the criminal justice process, through a pretrial diversion, at the pretrial or presentence stage, at the post-adjudication stage, or following parole. The goal of drug courts is to reduce drug or alcohol use relapse and criminal recidivism among offenders who suffer from substance abuse dependency through risk and needs assessments, extensive interaction between program participants and a judge (usually in a less formalistic manner in which the judge asks questions about the individual’s progress), strict and intensive monitoring (including random and regular testing) and supervision by probation and parole officers and by professionals with expertise in the area, graduated sanctions and incentives, and treatment services. For those who are deemed eligible and wish to participate, the judge sets the conditions and can monitor compliance. At the judge’s discretion and depending on the status of the offender at the time he or she enters the program, successful completion can result in charges being dropped, sentences being vacated or reduced, or probation or parole supervision being rescinded.[63] Program participants who are non-compliant can be sanctioned in a variety of ways including increased supervision and testing, a limited period of incarceration, all the way up to being sent or returned to prison for a longer term.

Research indicates that successful completion of the programs that are mandated by drug courts can result in significantly less drug use and lower recidivism rates at significantly lower costs (which can be borne by the offender himself, since in most cases, the offender can remain in the community and gainfully employed) than for offenders handled through traditional court processes. Some data, however, suggests drug courts may not be effective for those who suffer from extremely serious addiction or who use the hardest drugs.[64]

Similarly, there are also Mental Health Treatment courts and Veterans Treatment courts that operate under the same principles, and are also showing promising results.[65] Tennessee currently has three mental health treatment courts[66] and one veteran’s court.[67] As is the case with drug courts, such courts can be administered by judges and other personnel who have a solid understanding of the issues and challenges most commonly faced by those suffering from mental illness or by returning veterans (such as substance abuse, post-traumatic stress, traumatic brain injuries or sexual trauma), who can set conditions and establish treatment regimes that are tailored to each individual’s needs.

Critics of mental illness and substance abuse programs have noted that people who suffer from these disorders often don’t follow treatment regimes, miss therapy sessions, and refuse to take medications that are prescribed for them. In many cases, that’s true, especially for people who seek such treatment voluntarily. However, ironically, because offenders are involved in the criminal justice system and are subject to pretrial or post-release conditions, there is something that can be done about it. At least with respect to drug and alcohol dependency, recent studies suggest that addicts forced to undergo treatment by the criminal justice system may fare better than those who seek treatment voluntarily.

Because of the leverage of the criminal justice system, a number of states have begun experimenting with programs modeled after the Hawaii Opportunity Probation with Enforcement (HOPE) program that was initiated by Steven Alm, a Hawaii state court judge, and the 24/7 Sobriety Program that was started by then-Attorney General (now a judge) of South Dakota Larry Long. Tired of the inefficacy of the traditional probation and parole model, in which, due to overwhelming caseloads and a lack of funding, offenders would often get away with committing numerous offenses before being sent back to prison for long periods of time, Judge Alm and Attorney General Long devised novel ways of approaching the problem.

Both set up programs in which eligible offenders who agreed to participate would be subjected to regular drug and alcohol testing. In Hawaii, where methamphetamine is the primary problem, program participants are required to appear for weekly testing. In South Dakota, where the primary problem is alcohol, program participants are required to appear twice each day for testing. Program participants are required to pay for the testing, and monitoring equipment is available for those who live too far away from a testing center. Program participants are informed ahead of time that any failed test, any missed test or any attempt to tamper with the monitoring equipment will result in immediate imposition of a modest period of incarceration of perhaps a day or two (long enough so as to constitute real punishment in the eyes of the offender, but short enough to allow the offender to keep his job and maintain contact with his family). If the offender challenges the imposition of the penalty, he or she will receive a hearing before a judge on an expedited basis, but if the judge rules against that offender, the penalty will be more severe. Once released, the process starts over again, with a gradual increase in the penalties, or termination from the program, for those who continue to violate the rules. Faced with the prospect of swift and certain punishment, it turns out that the vast majority of offenders, even those not in a treatment program, will choose not to violate the terms of their release.[68]

Programs like HOPE and 24/7 Sobriety are showing remarkable results  --  the same kind of results achieved by programs for doctors who suffer from substance abuse dependency who risk losing their medical licenses if they test submit a positive test  --  at keeping people clean and sober through the use of potential punishment alone. It shows that even hard core addicts and alcoholics, when faced with the reality of “I take a drink now, I will go to jail tomorrow,” will choose not to drink. You string enough of those days together, and you have changed that person’s life, as well as the lives of those around him (and those who are not victimized by him).


Collateral Consequences

As many of you are no doubt aware, there are some lasting legal disabilities that accompany a criminal conviction, which are referred to as “collateral consequences.” Collateral consequences of conviction have steadily increased over the years. Like many other states, Tennessee law imposes hundreds of collateral consequences on ex-offenders, many automatically.[69] Some of them are clearly legitimate and serve the public’s interests, such as prohibitions against violent felons possessing guns or prohibitions against convicted drug dealers from becoming licensed pharmacists or convicted child molesters from becoming licensed operators of day care centers. Others are harder to justify, and, to the offender, the collateral consequences may prove more onerous in the long run than the original period of incarceration.  

As everybody knows, it is difficult for an ex-inmate, many of whom are indigent, to make it in the outside world. Many offenders who are released from prison owe fines to the state and restitution to their victims, not to mention family obligations such as child support payments and other debts. Men who serve time earn approximately 11% less in hourly wages, 40% less per year, and are unemployed 9 weeks longer than those who have not served time. By age 48, your average former inmate will have earned $179,000 less, and will be twice as likely to remain in the bottom quintile of earners, than those who have not been incarcerated.[70]

Some collateral consequences make it all the more difficult for an ex-offender to earn a livelihood and remain in a stable environment, which exponentially increases the likelihood that the person who is subjected to these collateral consequences will ultimately reoffend. Is it really necessary, for instance, to deny anybody convicted of a misdemeanor (or felony, for that matter) the opportunity to register as an interior designer? Does it really protect public safety to deny a convicted felon the opportunity to obtain a license to become a cosmetologist, or a barber, or an embalmer in a funeral home, or a land surveyor? These impediments don’t make any sense to me, yet all of these are impediments that are currently imposed on ex-offenders by Tennessee law.[71] Indeed, many offenders learn how to be a barber or a cosmetologist while in prison, only to be denied the opportunity to practice that trade once released.

And what of the social safety net, designed specifically to aid those fallen on hard times? That door may similarly be closed to the convicted. Students lose financial aid if they are convicted of any offense related to a student protest, and families may see a reduction in the food stamp benefits that they receive if a member of that household is convicted of drug possession.[72]

Ex-offender assimilation and reintegration ought to be a principal goal of the justice system, and yet here are examples where the law throws up barriers that make it all the more likely that an individual will recidivate. Some of these impediments are unfair, unjust, and unnecessary, and, with all due respect, they should be repealed.  

Those who have committed a crime and paid their debt to society should be given a second chance to become productive, law-abiding citizens. Ex-offenders have many major obstacles to overcome. They are often indigent, have limited job skills and experience, and are confronted by prospective employers who are reluctant to hire them because of their criminal record. Absent legitimate concerns for public safety and well-being, lawmakers should not impose extraneous barriers that make that hurdle all but insurmountable. I would strongly urge you to review the collateral consequences that are currently imposed under Tennessee law and to ask yourselves whether each of these laws is warranted by a legitimate concern for public safety or whether they are just being imposed as an additional punishment because of the offender’s past transgressions. If the latter, serious consideration ought to be given to removing it as a barrier to re-entry for someone who has paid his debt to society and who might otherwise become a productive member of the community.



It is not enough to continue spending more money building more prisons and saying we are “tough on crime.” Criminal justice practices and reform efforts should be data driven with meaningful performance-based measures, not driven by political expediency. We need to ask ourselves, are taxpayer dollars being spent in the best way? Are they making us safer? The real question is not whether we are being tough on crime. The real question is: Are we being “smart on crime”? 

Thank you for inviting me here to today. I would be happy to answer any questions you may have.



[1] See Press Release, Bill Haslam, Governor, State of Tennessee, Haslam Appoints Task Force On Sentencing and Recidivism (Aug. 14, 2014), available at

[2] See Franklin E. Zimring, The City That Became Safe: New York’s Lessons for Urban Crime and Its Control (2012).

[3] Steven D. Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six That Do Not, 18 J. Econ. Perspectives 163 (2004). In another paper, however, Levitt acknowledged that the continued increase in the number of drug offenders in prisons may lead to a “crowding out” effect in which the high number of incarcerated drug offenders prevents the incarceration of offenders prone to more serious crime, thereby reducing the effectiveness of incarceration to reduce crime. Ilyana Kuziemko & Steven Levitt, An Empirical Analysis of Imprisoning Drug Offenders, 88 J. Pub. Econ. 2056 (2004), available at

[4] William Spelman, The Limited Importance of Prison Expansion, in The Crime Drop in America 97 (Alfred Blumstein & Joel Wallman eds., Cambridge University Press, 2000).

[5] See One in 31: The Long Reach of American Corrections, The Pew Center on the States (March 2009), available at In Tennessee, the figure was one in 40 adults, compared to one in 124 adults in 1982, available at

[6] Collateral Costs: Incarceration’s Effect on Economic Mobility, The Pew Charitable Trusts (September 2010), available at

[7] Some may question whether incarcerated parents were positive role models. Undoubtedly, some were not; however, two-thirds of men in state prisons were employed at the time of their incarceration, 44% lived with their children prior to incarceration, and more than half (52% of mothers and 54% of fathers) were the primary earners for their children. The average child’s family income decreased by 22% the year after a father was incarcerated. Id. at 21.

[8] Id.; Amanda Geller, Carey E. Cooper, Irwin Garfinkel, Ofira Schwartz-Soicher & Ronald B. Mincey, Beyond Absenteeism: Father Incarceration and Child Development, 1 Demography 49 (February 2012), available at

[9] See Statistics, Inmate Offenses, Fed. Bureau of Prisons, available at

[10] See Historical Information, Fed. Bureau of Prisons, available at; Statistics: Inmate Offenses, Fed. Bureau of Prisons, available at

[11] See Michael E. Horowitz, Inspector General, Department of Justice, Top Management and Performance Challenges Facing the Department of Justice—2013 (December 2013, updated May 2014), available at

[12] See, e.g.One in 31supra note 5.

[13] Prison Reform in the States: Hearing Before the Alabama Senate, 2014 Reg. Session (2014) (statement of Cam Ward), available at

[14] See Tennessee Dep’t of Correction FY 2013 Annual Report, (Hereinafter “Tenn. 2013 Annual Report”) available at

[15] See Tennessee Felon Population Update, Tennessee Dep’t of Correction

Decision Support: Research & Planning (July 2014), available at

[16] See Tennessee Bed Space and Operating Capacities Report, Tennessee Dep’t of Correction

Decision Support: Research & Planning (July 2014), available at

[17] See Tennessee Felon Population Updatesupra note 15.

[18] See Tennessee Jail Summary Report, Tennessee Dep’t of Correction Decision Support: Research & Planning (July 2014), available at

[19] Ram Subramanian & Ruth Delaney, Playbook for Change? States Reconsider Mandatory Sentences, The Vera Institute of Justice (updated April 2014), available at For additional information about new sentencing initiatives recently enacted by various states, see Ram Subramanian, Rebecka Moreno & Sharyn Broomhead, Recalibrating Justice: A Review of 2013 State Sentencing and Correction Trends, The Vera Institute of Justice (July 2014), (Hereinafter “Vera Report”) available at

[20] Other changes include more substance abuse and mental health treatment programs in prison and post-release programs in communities, intermediate sanctions facilities for probation and parole violators giving them a short-term alternative instead of a direct return to prison for longer periods of incarceration, expanded use of specialty courts (mental health, drugs, veterans, and prostitution), and alternatives for low-level, nonviolent offenders, including some drug offenders.

[21] See Right on CrimeHearing on Prison Reform before Subcomm. on Crime, Terrorism, Homeland Security of the H. Comm. on the Judiciary, 113th Cong. 2014 (statement of Jerry Madden), available at

[22] States Cut Both Crime and Imprisonment, The Pew Charitable Trusts, available at

[23] See, e.g.Hearing Before the Subcomm. on Crime, Terrorism, Homeland Security of the H. Comm. on the Judiciary, 113th Cong. (July 2014) (statement of John Wetzel) (Pennsylvania Department of Corrections enters into contracts with community corrections centers that reward centers that reduce recidivism rates and penalize centers with increased recidivism rates), available at

[24] Steven E. Landsburg, The Armchair Economist: Economics & Everyday Life 3 (2012).

[25] See, e.g.Defining the Problem and Scope of Over-criminalization and Over-federalization: Hearing Before the Over-criminalization Task Force of the H. Comm. on the Judiciary, 113th Cong. (2013) (statement of John Malcolm), available at; John Malcolm, Criminal Law and the Administrative State: The Problem with Criminal Regulations, Heritage Foundation Legal Memorandum #130 (August 6, 2014), available at

[26] See John Malcolm, The Case for the Smarter Sentencing Act, The Heritage Foundation (July 28, 2014), available at

[27]See Tenn. Code Ann. § 40-35-120.

[28] See Tenn. Code Ann. §§ 39-17-417 and 40-35-111; however, some offenders may qualify for partial relief from mandatory minimum sentences or may qualify for community-based alternatives pursuant to Tenn. Code Ann. § 40-36-106.

[29] Tenn. 2013 Annual Report, supra note 14.

[30] See Tenn. Code Ann. § 40-31-501(i).

[31] See Tenn. Code Ann. § 39-13-523.

[32] For a good discussion of the history of good time credits, See Paul J. Larkin, Jr., Managing Prison By The Numbers: Using the Good-Time Laws and Risk-Needs Assessments to Manage the Federal Prison Population, 1 Harv. J.L. & Pub. Pol’y 1 (2014).

[33] Louis M. Davis & Jennifer L. Steele, et al., How Effective is Correctional Education and Where Do We Go From Here? Rand Corporation (August 2014), available at

[34] See, e.g., Alison Lawrence, Cutting Corrections Costs: Earned Time Policies for State Prisoners, Nat’l Conference of State Legislatures (2009), available at There are bills currently pending before both houses of Congress that would expand the use of “earned time” credits in federal prisons, with the amount of time earned varying depending on whether the inmate poses a low, medium or high -risk of recidivating upon release. See The Recidivism Reduction and Public Safety Act (S. 1675) and The Public Safety Enhancement Act (H.R. 2656).

[35] See Tenn. Code Ann. § 41-21-236.

[36] See Tenn. Code Ann. § 41-21-236(a)(2)(B)(iii).

[37] See, e.g., Carolina Guzman, Barry Krisberg & Chris Tsukida, Accelerated Release: A Literature Review, Nat’l Council on Crime and Delinquency (2008), available at

[38] See, e.g., Due South: Mississippi: Rolling Back ‘Truth-in-Sentencing’ Laws, Justice Policy Institute

(2011), available at; Vera Report, supra note 19 (discussing recent expansions of earned time credit through participation in treatment and rehabilitation programs in Louisiana and West Virginia); Lessons from the States: Responsible Prison ReformHearing Before the Subcomm. on Crime, Terrorism, Homeland Security of the H. Comm. on the Judiciary, 113 Cong. (July 2014) (statement of Nancy G. La Vigne), available at

[39] In 2008, a survey of 34 states revealed that, on average, it costs $79 per day ($29,000 per year) to care for an inmate, while the cost for managing an offender in a community program ranged from $3.42 per day ($1,250 per year) to $7.47 per day ($2,750 per year). See One in 31, supra note 5.

[40] See Vera Report, supra note 19.

[41] See Mandatory Reentry Supervision: Evaluating the Kentucky Experience, The Pew Charitable Trusts (June 2014), available at

[42] See Faith-based Re-entry Program for Prisoners Saves Money, Reduces Recidivism, Baylor Study Finds, Baylor University (August 8, 2013), available at

[43] For a discussion of this and other recent state initiatives in this area, see Vera Report, supra note 19.

[44] See Tenn. Code Ann. § 40-36-106.

[45] The Mid-Cumberland Human Resource Agency, one of Tennessee’s 19 community corrections agencies, estimates the cost at $4 per day, per offender, available at

[46] See Tenn. 2013 Annual Report, supra note 14.

[47] Tenn. Code Ann. § 40-36-106.

[48] For descriptions of two such programs, see The Mid-Cumberland Human Resource Agency, available at Correctional Alternatives, Inc., available at

[49] Nancy G. La Vigne, Christine A. Visher & Jennifer Castro, Chicago Prisoners’ Experiences Returning Home, The Urban Institute (2004), available at; Nancy G. La Vigne, Tracey L. Shollenberger & Sara Debus, One Year Out: The Experiences of Male Returning Prisoners in Houston, Texas, The Urban Institute (2009), available at

[50] See Prison Overcrowding: Tennessee, American Legislative Exchange Council, available at

[51] See Tenn. Code Ann. § 41-1-412.

[52] For a list of some states that have recently expanded their use of risk and needs assessments, see Vera Report, supra note 19.

[53] For a general discussion of risk and needs assessment tools, See Larkin, supra note 32. It should be noted that some, including U.S. Attorney General Eric Holder, have questioned whether the use of such assessments might undermine the values of individualized and equal justice and might exacerbate unjust disparities in sentencing practices. See, e.g., Eric Holder, U.S. Attorney General, Remarks Before the Nat’l Ass’n of Criminal Defense Lawyers 57th Annual Meeting (August 1, 2014), available at; Jesse Jannetta, Justin Breaux & Helen Ho, Could Risk Assessment Contribute to Racial Disparity in the Justice System? The Urban Institute (August 11, 2014), available at; Sonja B. Starr, Evidence-Based Sentencing and the Scientific Rationalization of Discrimination, 4 Stan. L. Rev. 66 (2104); Margaret Etienne, Legal and Practical Implications of Evidence-Based Sentencing by Judges, 1 Chap. J. Crim. Just. 43 (2009). However, although not as accurate as the “precogs” in the 2002 movie Minority Report when it comes to predicting criminal conduct, the evidence strongly supports the notion that risk assessments can be very effective at identifying risk factors that can be of invaluable assistance in devising educational or treatment programs that are likely to reduce the likelihood of recidivism and increase the likelihood of successful re-entry into society. And, of course, if certain controversial, but predictive, variables associated with protected categories are eliminated from risk assessment tools, the less useful those tools become in terms of assessing the risks of recidivism and the need for certain treatments.

[54] For an example of the TCU drug screen questionnaire, see

[55] See Vera Report, supra note 19.

[56] See Prison Reform in the Statessupra note 13 (in Alabama, 56.2% of state prisoners have a mental health problem; 64.2% of local jail offenders have a mental health problem; 74.1% of offenders with mental problems have a history of substance abuse or dependency; and 55.6% of offenders without mental problems have a history of substance abuse or dependency).

[57] In a recent report from the Bureau of Justice Statistics, which is part of the Justice Department’s Office of Justice Programs, it was reported that 68% of the 405,000 prisoners that were released in 30 states in 2005 were rearrested for a new crime within three years (57% of those were arrested within the first year), and that 77% of them were rearrested within five years. About half were returned to prison within three years, and 55% were returned to prison within five years. Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010, U.S. Dep’t of Justice (April 2014), available at Tennessee appears to be no exception. According to a 2010 study by the TDOC of recidivism rates for felons who were released between 2001 and 2007, a majority of released felons will recidivate within a few years of their release. See Tennessee Department of Correction Recidivism Study, Felon Releases 2001-2007, Tennessee Dep’t of Correction, available at

[58] See David Sack, We Can’t Afford to Ignore Drug Addiction in Prison, Wash. Post, (August 14, 2014),

[59] See Behind Bars II: Substance Abuse and America’s Prison Population, Nat’l Ctr. on Addiction and Substance Abuse at Columbia University (February 2010), available at

[60] See Ingrid A. Binswanger, et al., Return to Drug Use and Overdose After Release From Prison: A Qualitative Study of Risk and Protective Factorsavailable at

[61] See Nathan James, Offender Reentry: Correctional Statistics, Reintegration into the Community, and Recidivism, Congressional Research Service, available at; Shawn D. Bushway. & Robert Apel, A signaling perspective on employment-based reentry programming: Training completion as a desistance signal, Crim. & Pub. Pol’y, 11, 21-50 (2012); Alex R. Piquero, Obeying signals and predicting future offending. Crim. & Pub. Pol’y, 11(1), 51-60 (2012); Christy Visher, Sara Debus-Sherrill & Jennifer Yahner, Employment after prison: A longitudinal study of former prisoner, Justice Quarterly 28, 698-718 (2011); Pamela Lattimore, Danielle Steffey & Christy Visher, Prisoner reentry in the first decade of the twenty-first century 5 Victims & Offenders 253-267 (2010); Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry (2005); What Works for Successful Prisoner Reentry: Hearing Before the Subcomm. on Commerce, Justice, Sciences and Related Agencies of the H. Comm. on Appropriations, 111th Cong. (statement of Jeremy Travis), available at ssional_Testimony.pdf; Joan Petersilia, What Works in Prisoner Reentry? Reviewing and Questioning the Evidence, 68 Fed. Probation 2 (2004), available at Reentry, The Georgia Dep’t of Corrections, available at

[62] See Drug Courts, Nat’l Inst. of Justice, available at

[63] For a review of some states that have recently increased their use of incentives as an inducement to persuade those participating in community-based programs that they ought to complete them, See Vera Report, supra note 19.

[64] See, e.g.Do Drug Courts Work? Findings From Drug Court Research, Nat’l Inst. of Justice, available at; John Roman, Cost-Benefit Analysis of Criminal Justice Reforms, 272 Nat. Inst. Justice Journal (Sept. 2013), available at Multi-Site Adult Drug Court Evaluation: Executive Summary, The Urban Institute (November 2011), available at; Ryan S. King & Jill Pasquarella, Drug Courts: A Review of the Evidence, The Sentencing Project (April 2009), available at Courts: The Second Decade, Nat’l Inst. of Justice (June 2006), available at Statewide Evaluation of New York’s Adult Drug Courts: Identifying Which Policies Work Best, Ctr. for Court Innovation (June 2013), available at Drug Courts Save Jail and Prison Beds?, The Vera Institute for Justice (2000), available at; Marc Levin, Drug Courts: The Right Prescription for Texas, Texas Public Policy Foundation (February 2006), available at

[65]For a collection of data about Mental Health Treatment Courts, see, e.g.Mental Health Courts: Resource Guide Nat’l Ctr. for State Courts, available at, and the Adult Mental Health Treatment Courts Database, Samhsa’s Gains Ctr. For Behavioral Health and Justice Transformation, available at For a collection of data about Veterans Courts, see, e.g.Veterans Courts: Resource Guide, Nat’l Ctr. for State Courts, available at, and information posted by Justice for Vets, available at

[66] See Mental Health Treatment Courts in Tennessee, Samhsa’s Gains Ctr. For Behavioral Health and Justice Transformation, available at

[67] See Veterans Courts in Tennessee, Nat’l Ctr. for State Courts, available at

[68] See, e.g., Paul J. Larkin, Jr., The Hawaii Opportunity Probation with Enforcement Project: A Potentially Worthwhile Correctional Reform, Heritage Foundation Legal Memorandum #116 (February 28, 2014), available at; Beau Kilmer, Nancy Nicosia, Paul Heaton & Gregory Midgette, Efficacy of Frequent Monitoring with Swift, Certain, and Modest Sanctions for Violations: Insights from South Dakota 24/7 Sobriety Project, 103 Am. J. Pub. Health 1 e37-e43 (Jan. 2013); South Dakota 24/7 Sobriety Project: Changing Approaches and Achieving Results, Nat’l Partnership on Alcohol Misuse and Crime (Jan. 2009), available at; to see a program entitled 24/7 Sobriety and HOPE: Creative Ways to Address Substance Use and Alcohol Abuse with Judge Alm and Judge Long, go to

[69] For a complete list of collateral consequences imposed under Tennessee law, See National Inventory of Collateral Consequences of Conviction for Tennessee, American Bar Association, available at

[70] Collateral Costs: Incarceration’s Effect on Economic Mobility, The Pew Charitable Trusts (September 2010), available at

[71] See Tenn. Code Ann. § 62-4-127 (cosmetology licenses may be suspended or revoked, and new licenses refused, following conviction of a felony or misdemeanor involving moral turpitude); Tenn. Code Ann. § 62-3-121 (felony conviction can lead to the withholding, suspending, or revoking of professional licenses for barbers); Tenn. Comp. R. & Regs. R. 0120-04-.03 (felony conviction can lead to the withholding, suspending, or revoking of professional licenses for funeral directors, embalmers, and funeral establishment owners); Tenn. Code Ann. § 62-5-317 (felony conviction can lead to the withholding, suspending, or revoking of professional licenses for interior designers); and Tenn. Comp. R. & Regs. R. 0820-4-.07 (felony conviction can lead to the withholding, suspending, or revoking of professional licenses for land surveyors). A compilation of the collateral consequences imposed under Tennessee law is available via the American Bar Association’s National Inventory of Collateral Consequences of Conviction, available at

[72] See Tenn. Comp. R. & Regs. R. 1240-01-02-.02 (people convicted of certain designated offenses are excluded from a household for the purposes of determining household size for the purposes of assigning food stamp benefit allotments); Tenn. Code Ann. § 49-4-601 (students convicted of any felony, misdemeanor, or lesser crime arising from a student riot, protest or disturbance must automatically forfeit state financial assistance).


John Malcolm
John Malcolm

Vice President, Institute for Constitutional Government