Affirmative steps should be taken to avoid implementation of capital expansion plans that
                                    would add 3,296 beds between now and December 31, 2010; and

                                   Reallocation of resources should be made to preventive measures to avoid projected prison
                                   bed demand.

Brief for the Pro Position;

            Filed on behalf of all citizens of Delaware.

At the beginning of a new century, Delaware stands at a public policy crossroad.  Today Delaware ranks 12^th  in the nation in the rate of imprisonment of its citizens (sentences over one year);  while placing only 33^rd in the well being of its children according to the annual 2002 Kids Count report by the Annie E. Casey Foundation (EXHIBIT A). 

Unlike the 1990s when it was possible for the State to finance both new prisons and new classrooms, the return to more normal economic times is imposing real choices for Delawareans on public policy strategies for public safety and the welfare of its citizens.

This year the Department of Correction will complete the latest addition to the Baylor Women’s Correctional Institute with completion of a drug treatment unit.  Thus will conclude the current wave of construction that began in the mid 1990s, adding some 2,500 beds to the Delaware prison system, for a new total capacity of 6,589 beds.

The Department, to its credit, has projected past growth rates to the year 2010 and has prepared capital construction master plans to expand male facilities (2,856 additional beds) and female facilities (440 additional beds) to meet the forecasted need.  This would mean a 50 percent increase in capacity for a state that is already incarcerating prisoners at a rate higher than 38 other states.

This expansion cannot be made without sacrificing other important public goals directed at public safety and the public welfare generally.  Now is the time to draw the line, 6,589 beds are enough.  Public safety goals can be better served pursuing other priority investments in the well being of our state.

·        Within the United States, Delaware’s prison rate (incarceration for more than one year) is the
   12^th highest of the 50 states;

The Delaware Statistical Analysis Center (DelSAC), the state’s agency tracking criminal justice data reported a Delaware adult incarcerated population in its  most recently published Correction Incarceration Fact Book (EXHIBIT C, January 2002), of 6,935 persons on June 30, 1999. 

Delaware’s Bureau of Prisons has experienced tremendous growth.  The 1999 Delaware Bureau of Prison census, compared to the 1981 prison census showed:

Detainees:        236                 1,204;              (pretrial)

Jail:                 117                  1,980;              (sentenced to 365 days or less)

Prison:          1,148                  3,751              (sentenced to more than 365 days)

That is a 444 percent total increase in Delaware’s incarcerated population in 18 years.  A more frequent yardstick than total incarceration rate is the prison rate, prison being those sentenced to terms of more than one year (365 plus one day and longer).  The Delaware Statistical Analysis Center put Delaware’s prison incarceration rate at 494 per 100,000 giving Delaware a national ranking of 12^th, making Delaware a high state in a nation that leads the world (EXHIBIT D, DelSAC June 28, 2001 memo report). 

At 12^th, Delaware’s prison population rate (494) is 15 percent higher than the average of the 50 states(438), (EXHIBIT E, Bureau of Justice Statistics, Prison and Jail Inmates at Midyear 2000, March 2001).  If Delaware were at the national average, it would have 524 fewer prison inmates.  At an annual cost of $24,500 per inmate Delaware is presently spending more than $12 million annually to maintain its lofty position on prison incarceration.  Keep in mind that this only includes the prison population (more than one year sentence). 

In 1981 Delaware’s incarceration rate for prison (offenders serving terms of one year and up) was 208 per 100,000.  In 1999 it reached 494 according to DelSAC data, for a 237 percent increase in twenty years. 

This increase is being accompanied by an impressive capital construction program by the Delaware Department of Correction (DoC) to chase their rising census.  The present construction program that began in the mid-1990s is nearing completion with construction of a new drug treatment at the Baylor Women’s Correctional Institution.  When that is done later this year some $180 million in capital expansion will have added 2,500 new beds for a design capacity of 6, 589 beds system-wide.  DoC has been prudent in recognizing its responsibilities and has prepared master plans designed to increase this new capacity by another 50 percent by 2010:

A dramatic increase in the Department of Correction annual operating budget is required to operate the new capacity. In the 15 year period from State Fiscal Years 1987 to 2002, the operating budget of the Department increased 367.9 percent:

Ironically, with the present state fiscal downturn, there are newly constructed cells  sufficient to serve 400 inmates standing vacant for the want of payroll to hire the correction officers, while other units go over crowded (EXHIBIT F: News Journal, March 17, 2001, B1 “Low Pay Leaves Prisons Short-Handed”). 

In spite of this, today Delaware’s correction system is the most expensive among the 50 states on a per capita basis.  The Bureau of Criminal Justice Statistics February 2002 annual report (EXHIBIT G)  on expenditures shows combined per capita state and local expenditures at:

These numbers reflect not only the incarcerated population but also the cost of the probation and parole systems.  In Delaware last year, there were another 20,149 persons on some level of DoC supervision in the community in addition to those incarcerated. 

In 1989 the General Assembly passed SB 142 to curb drug trafficking by reducing the drug weights that trigger mandatory trafficking sentences; cocaine at 5 grams, formerly at 15 for a three year mandatory sentence for example.  The Statistical Analysis Center published reports on the impact of SB 142 in March of 1991 and again in March 1992.  While they documented significant increases in convictions under the statute, they also found that the new law was not acting as a deterrent.  Specifically, if the specter of a 3-year sentence is suddenly the penalty for simple possession of 5 grams of cocaine really matters to criminals, the confiscated evidence reviewed by the Medical Examiner should show a shift to smaller amounts beneath the new, lower thresholds.  The 1991 report’s finding was that while there was a significant increase in cases (almost double), “(t)he count of illicit drugs in each of the weight strata, on average, is not different when a per-post analysis is calculated” (p.1).

To be real clear about the observed dynamics, the Statistical Analysis Center’s June 1993 (EXHIBIT H) report on mandatory sentences observes:

Whereas SB 142 was intended to reduce drug trafficking in Delaware through reduced weight ranges coupled with existing harsh minimum mandatory terms of imprisonment, the report reflected no reduction in drug trafficking.  Drug arrests for possession and trafficking increased.  That caused an accompanying increase in detained admissions for drugs, leading to a coincident increase in prosecutorial/defense/court caseloads.  The ultimate effect was increased three year mandatory sentencing drug trafficking offender demand for DOC beds” p18, (emphasis supplied).

This finding is reflected on the national level in a report by the Federal Judicial Center (EXHIBIT I: The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Findings, 1994) suggests that conventional assumptions of deterrence theory may not apply to drug traffickers:

“To be deterred, offenders must stop to weigh the costs and benefits, be aware of the penalties, find those penalties intolerable, and have other more attractive options.  Even if some potential offenders are deterred, drug trafficking will not be curtailed if there are other persons willing to take the place of convicted offenders.  This appears to be true in the profitable drug business” (p.11)

The report indicates that the federal mandatory sentencing law is not sweeping the kingpins out of the system; only 5 percent under mandatory drug statutes in FY92 were organizers or leaders of an extensive drug operation, over 85 percent were low-level offenders who are easily replaced.  The Judicial Center’s report makes the case that mandatory sentencing laws actually get in the way of truth-in-sentencing guidelines which can offer a more effective sentencing strategy.

The Case:

·        Prevent present “drift” into justice system by closing community-based treatment gaps for
   drug/alcohol, mental health services;

·        Reduce pre-trial detention bed requirements through speedy trial initiatives;

·        Get non violent offenders out of prison;

·        End present sentencing policy inconsistencies between mandatory sentences and truth in
   sentencing philosophies in favor of  truth-in-sentencing policy.

Delaware’s DoC Key and Crest therapeutic treatment programs are national models, heavily researched and copies, why do we let inmates go with our treatment? Correction Commissioner Stan Taylor indicates it costs $67.12 per day to maintain an inmate, and another $7.70 to treat them.  Can we afford not to spend the $7.70?

Reentry initiative, mostly supported by faith-based organizations, are demonstrating that released offenders receiving support in making their transition back to the community are having a significant, measurable impact on lowering recidivism.  The Criminal Justice Council, putting seed money into some of these programs, has documented an 18 percent recidivism rate in the first two years for The Way Home program serving inmates leaving Georgetown Correctional.  The cost per inmate of these bare-bones programs is an investment shouting to be made.

Prison-to-work initiatives if put in place and coordinated properly with the Delaware Department of Labor could increase the potential for released offenders to secure gainful employment.

Prevent present “drift” into justice system – close the treatment gaps

Many citizens are in need of drug/alcohol, and mental health treatment in Delaware.  On any day there is a 15,000 to 25,000 person treatment gap for citizens in need of these services (EXHIBIT L: Treatment Task Force Report to General Assembly,  Henry and Howell, March 2002). 

The untreated substance abuser and the untreated mentally ill, sometimes the same person, are the feeder source for much of the low level anti social behavior which is picked up in the criminal justice system.  Then with a record, any wonder that they become further entrained in the justice system?  Today, 40 percent of the persons served by the Department of Health and Social Services drug/alcohol, mental health network of community services already have a record with the Department of Correction.  Closing the treatment gap for community services is far less expensive than the $24,500 to incarcerate an inmate for one year.

Reduce pre-trial detention bed requirements through speedy trial initiatives

The Superior Court’s recent “blitz” to reduce the number of pending cases involving incarcerated detentioners awaiting trial is evidence enough that DoC beds are unduly consumed by persons awaiting trial.  According to the court’s report (EXHIBIT M: March 22, 2002), 535 cases were disposed of in the four week blitz in New Castle County, including 95 that were dismissed or Nolle Porssed by the State.  How many DoC beds could be saved annually by the cases that the State dismissed or Nolle Prossed when the trial date became real?

The Delaware Code includes a long list of offenses which carry prison sentences, requiring them to go through extensive due process procedures for which offenders are rarely sentenced to prison (theft F, shoplifting F, perjury 2^nd to mention a few).  Why not clean up the statutes and remove these cases from the logjam of Superior Court? 

And what about the detained inmate whose jury returns a not guilty verdict or a “time served” verdict on a Friday afternoon, but who sits in Gander Hill until Monday because of the lag in processing the court release order?  How many beds are wasted on those high volume weekends?

Get non violent offenders out of prison

The State’s announced policy is to reserve expensive prison space for violent offenders, yet non-violent offenders still occupy some of this capacity.  The Attorney General’s sentencing reform proposal to incarcerated remove certain motor vehicle violators from prison is one example of a possible step. 

And let’s take a new look at how we apply the “non-violent” definition.  Today, by definition drug offenders are ipso facto “violent”. 

End Intellectual “Dyslexia” Between Mandatory Sentencing and Truth-in-Sentencing.

Today, Delaware’s justice system has a truth-in-sentencing policy with a jumble of mandatory minimum sentencing requirements overlaying it.  Recent analysis suggests that truth-in-sentencing is working quite well in Delaware (see EXHIBIT K).  Meantime, minimum mandatory sentences are adding to the consumption of prison capacity with no obvious benefit beyond a “get tough” satisfaction that it may provide to some.

The Case:

The National Center on Addiction and Substance Abuse at Columbia University published an analysis of the impact of substance abuse on State budgets (EXHIBIT O: Shoveling Up: The Impact of Substance Abuse on State Budgets, January 2001). 

The state by state survey, based on input from each state’s budget office, shows that some $344 million in was spent by the State of Delaware to address substance abuse in a variety of ways in Fy98.  The bottom line is that Delaware spent $468.70 per capita, with 6 cents of each dollar going to treatment and prevention and the other 94 cents going to what the report calls “shoveling up” the consequences of substance abuse.  This includes the justice system and health care costs as the leading expenditures.

Closing Statement

The State and its citizens have the opportunity to accept a continuation of the trends of a decade or to decide to apply some new thinking to some old issues.  The considerations are not about sacrificing public safety for costs savings.  Rather they are about alternative ways to seek policies that have better prospects of producing the desired results.

The significance of the rising correction population is an issue attracting increasing attention. 

The popular publication Scientific American ran an article in its December 2001 issue titled “Why Do Prisons Grow?: For the Answers, Ask The Governors” (EXHIBIT P).  The article notes that South Carolina and South Carolina had about the same crime rates during the late 1980 – early 1990s.  In South Carolina where Governor Carroll Campbell had a tough-on-crime policy, the prison population grew 63 percent, while North Carolina grew only 25 percent under Governor James Martin, who did not pursue such a policy. 

Commenting on rising prison populations, the article goes on to say:

“This increase, which some say did little to deter crime, profoundly disrupted minority communities.  Based on current incarceration rates, the Bureau of Justice Statistics estimates that 28 percent of black and 16 percent of Hispanic men will enter a state or federal prison during their lifetime.  (The comparable figure for whites is 4 percent.)”

Delaware has invested in the capital facilities to meet present and future needs, but can do better in confronting substance abuse than the present 6 cents on the dollar going for treatment and prevention.  Allowing the correction system expenditures, already the highest per capita in the nation, to consume more because of policies that are on auto-pilot would be a failure in leadership.