The Institute for Public Affairs at West Virginia University is pleased to present the third in a series of Policy Monographs that address significant public policy issues facing the State of West Virginia. Each monograph provides an overview of a particular problem and presents an array of options for consideration by West Virginia's policymakers.

Policy Monograph Series No. 3, Corrections in Context: Policy Options for Control of Intake, Length of Stay and System Capacity in West Virginia, focuses on one of the most perplexing problems in American society, how to deal effectively, efficiently, and fairly with the rapidly growing number of inmates in our nation's correctional facilities. Given existing fiscal constraints and fundamental disagreements concerning the causes and cure for crime, it should not surprise the reader that this monograph does not provide a single, overriding solution to solve all of West Virginia's correctional system's problems. Instead, it analyzes a number of available options and explores the experiences of other states. It is hoped that this monograph will stimulate public discussion and informed commentary as West Virginia continues to refine and reflect upon its approach to solving the many issues facing our correctional system.

The opinions expressed in this monograph are those of the author and do not necessarily reflect the views of the Institute for Public Affairs or of West Virginia University.
 

Robert Jay Dilger
Director, Institute for Public Affairs

Foreword ............................................................................................................................ i
 

I. Introduction ..................................................................................................................... 1

II. The Larger Context ........................................................................................................ 4

III. Policy Explorations in Other States ............................................................................... 25

IV. Policy Options for Reducing Correctional Pressures:

     Intake Control ............................................................................................................... 35

V. Policy Options for Reducing Correctional Pressures:

     Controlling Length of Stay .............................................................................................. 56

VI. Policy Options for Reducing Correctional Pressures:

       Improving System Capacity .......................................................................................... 76

VII. Conclusions ................................................................................................................. 89

        References .................................................................................................................. 92

The United States is currently incarcerating its citizens in record numbers, generating enormous pressures on our correctional systems. In 1989, the total number of inmates in federal and state prisons increased by 115 percent, reaching 710,054, a record amount. The number of sentenced prisoners per 100,000 residents reached 274, another record. In 1989, the typical state prison operated at 107 percent of its highest rated capacity and the federal prison system operated at 163 percent of its highest rated capacity. At the present time, 41 states and the District of Columbia have been ordered by judges to limit their prison populations, improve conditions in their prison systems, or both (Wilson, 1990).

In West Virginia, attention has so far centered around the need for replacement of the penitentiary at Moundsville. Although present construction plans represent solid progress, they will not solve all the problems in the long run. Following an earlier effort aimed at exploring policy options for replacement of the penitentiary and the possible privatization of corrections within the State (Ball, 1989), the present monograph addresses some of the deeper issues.

Because of time and resource constraints this effort cannot pretend to be exhaustive. Many states faced with similar problems have either established a statewide task force or have affiliated themselves with one of the cooperative programs funded by the federal government. Current correctional problems are simply too complex to be approached without such a major effort.

The task force approaches have proceeded by bringing together informed representatives with a range of expertise from the various areas affected by correctional problems. States employing this approach have then allocated sufficient resources for necessary data collection and data analysis, allowing the task force to conduct a thorough, informed give-and-take policy analysis leading to an outline of policy options along with recommendations. Because of the complexity of the process, these task forces are usually given a minimum of two years to complete their work.

The cooperative programs have proceeded by appointment of a coordinating body in each of the cooperating states and a sharing of information and technical assistance. Through these efforts the states involved have been able to draw upon the best available expertise on matters of correctional policy ranging from sentencing reform to prison architecture. The complexity of the issues has required that these states plan for a period of three to five years of intensive effort.

Neither of these approaches has been taken in West Virginia. Instead, the present monograph must rest upon the author's own concentrated efforts over a period of several months. Rather than providing a detailed picture, it is intended as a beginning.

The immediate correctional problem facing West Virginia was detailed at length in the earlier monograph. The present effort will begin somewhat differently by analyzing the larger national context, which is the outcome of a clash between constantly rising rates of incarceration, the trend toward the so-called "warehousing" of prisoners, and the movement for protecting the rights of these same prisoners. Having done that, it will be possible to turn to an examination of the many options available for dealing with correctional pressures in West Virginia in the light of this analysis.

These policy options will be subdivided into (1) alternatives for controlling prison intake, (2) possibilities for reducing average length of stay in correctional facilities, and (3) means for improving the carrying capacity of the correctional system. In each case an effort will be made to outline policy options that might be considered by policymakers both inside and outside State government. Not only are there various alternatives open to the Legislature, but there are possible options available for consideration by prosecutors, the defense bar, the judiciary and both public and private noncriminal justice agencies. At the same time, policy options will be described from among those available to probation and parole agencies, the Department of Corrections and the Office of the Governor.

Almost everyone concerned agrees that correctional issues in the State have been addressed in a piecemeal fashion over the past decade. And almost everyone concerned agrees that one of the principal obstacles to comprehensive planning is the lack of information. If this monograph succeeds in establishing the need to gather such information and for long-range, systematic policy approaches based on an overview of the entire criminal justice process, from the passage of legislation creating a "crime" to the processes of prosecution, defense, adjudication and correctional management, it will have served its purpose.

Across the United States, the pressures put on correctional facilities by the sheer weight of numbers, combined with the tendency to give low funding priority to these institutions, has led to a significant deterioration in their physical environments, an erosion of programs, and a sharp decline in inmate and staff morale. At the same time, a loss of faith in the rehabilitation ideal, or at least in the capacity of such institutions to succeed in efforts at rehabilitation, has meant less willingness to invest in the resocialization of prisoners and a drift toward what has been called a "warehousing" mentality. Yet because rising incarceration rates and "warehousing" trends have run directly counter to the powerful movement recognizing inmate rights, a clash was inevitable. Understanding this clash and the possible options for dealing with it in West Virginia and elsewhere depends in part on a grasp of each of these three interconnected trends.

Rising Incarceration Rates

Throughout the United States the trend toward locking up more and more of the population has placed a heavy burden on correctional systems. From the time the National Prisoner Statistics (NPS) program was initiated in 1926, the peak year for the national incarceration rate had been 1939, with a rate of 137 per 100,000 citizens, coming after years of the Great Depression. With the mobilization of young men draining off much of the crime-prone population during WWII, the incarceration rate fell throughout the 1940s, reaching a low of 105 incarcerated inmates per 100,000 citizens in 1947. By 1961 that figure had increased to 119 per 100,000 citizens. Then, during the 1960s and early 1970s, the incarceration rate declined, perhaps partly because of the more lenient political climate and partly because of the "drain-off" of the crime prone population due the conflict in Vietnam.

By 1974, the incarceration rate began to climb again, and it has continued to climb in an alarming trajectory, despite declining crime rates and the fact that many of the incarcerated are not violent offenders. By 1983, 438,830 people were incarcerated in state and federal correctional institutions (Bureau of Justice Statistics 1984). In just one a decade the size of the incarcerated population had doubled, reaching the highest figure in the history of the nation (Austin and Krisberg 1985).

In 1984, the General Accounting Office forecast that by 1990 the overall prison population alone might reach 566,170, a figure not only much higher than ever before but one that, combined with a projected increase in the jail population, would represent an astronomical incarceration rate of 227 inmates per 100,000 citizens, by far the highest in U.S. history. Although some felt this estimate overly alarmist, the projected figure was actually reached and surpassed in 1988 when approximately 650,000 prisoners were incarcerated in state and federal prisons and another 300,000 were incarcerated in local jails (Bureau of Justice Statistics 1989). By the end of 1989, the number of prisoners incarcerated in state and federal prisons reached 710,054 and the combined incarceration rate, counting inmates in both prisons and jails, had increased to 274 per 100,000 citizens (Wilson 1990).

By 1989, the combined growth rate for jails and prison populations in the U.S. was the equivalent of three new 400-bed prisons every week (Bureau of Justice Statistics 1989). The federal penal system was operating at 63 percent over its highest rated capacity, despite the fact that 12 new institutions had been built since 1979, with additional facilities acquired from private institutions and the military (National Institute of Justice, 1988b; Wilson 1990). More than two-thirds of the states were facing serious overcrowding problems, and 41 states, including California, Connecticut, Massachusetts and Texas, were under court order to relieve the overcrowding (Heritage Foundation 1988).

B. National Trends and Forecasts

Any attempt to forecast future pressure on correctional systems in terms of rates of incarceration must be built upon an analysis of four separate factors. These include (1) changes in the overall pattern of crime rates, (2) demographic shifts for the subpopulations at highest risk, (3) shifts in economic conditions and (4) trends in criminal justice policies (Austin and Krisberg 1985). However, it must be recognized that any forecasts for incarceration rates in West Virginia may depart considerably from the national trend. West Virginia is not as urban as most other states and its demographic characteristics are such that it has relatively few members in subpopulations at highest risk for incarceration. Thus, any forecasting attempts for West Virginia's incarceration rates must take into account West Virginia's unique characteristics.

Nationwide, crime rates have increased during the 1980s. However, there is considerable disagreement over what has caused crime rates to increase. Because there is no consensus over the cause of the increase, there is no consensus on what those rates will be in the near future. The National Research Council has explored the issue, but the relationships remain unclear (Blumstein et al. 1978).

There is a general consensus that demographic trends have a direct relationship with crime rates because it is known that certain demographic groups have much higher rates of arrest and incarceration than do others. For example, the rates are high among young men and are particularly high among young, black men. As a result, the higher the proportion of young men expected in the population, the higher will be the arrest and incarceration forecast and the greater the projected pressure on correctional facilities. Changes in the proportion of especially high-risk demographic categories such as young, black men will raise the arrest and incarceration rate forecast appreciably.

For the nation as a whole, the demographic projection is for a gradual decline in the proportion of the male population in the high-risk age groups (Bureau of the Census 1984). Although the white male population between 20 and 29 years of age is declining, the population of black males in that age category is expected to increase until at least the year 2080 (Bureau of the Census 1984). As a result, the projected decline in the incarceration rate associated with the drop in the proportion of young males in general may be offset by the increase in the proportion of young, black men with their much higher rates of arrest and incarceration. Furthermore, these projections have not taken into account the projected rapid growth of the proportion of Hispanic males in the population, an important omission in that Hispanic males also show higher arrest and incarceration rates than the male population as a whole (Austin and Krisberg 1985).

Economic conditions may also play a significant role in future rates of incarceration, with some maintaining that rates of imprisonment are highly correlated with poverty levels and unemployment rates. This impression is certainly reinforced by the figures cited earlier, where the incarceration rates peaked during the Depression. But although specific studies have explored the relationship between increases in the male unemployment rate and subsequent growth of the prison population (Brenner 1976), the connection between economic conditions and rates of incarceration remains fuzzy (Austin and Krisberg 1985). Part of the problem is that the relationships seem to be indirect, and part of the problem is that they may be mediated by other variables, including the demographic factors already discussed (Cohen 1981; Thornberry and Christenson 1984).

Although incarceration rates are affected by overall trends in crime rates, demographic changes, and shifts in economic conditions, it is important to emphasize that the most significant factor by far has always been criminal justice policy itself. The dramatic rise in the incarceration rate that took place during the 1980s can be traced mainly to harsher sentencing. At the same time, the movement to restrict parole has tended to increase the incarceration rate by operating from "the other end of the pipeline." On the one hand more and more of those arrested were being incarcerated and on the other fewer and fewer were being released.

As Allen Breed, former Director of the National Institute of Corrections testified before Congress in 1983, "Jail and prison populations must be seen as less the result of such ... indicators as the baby boom and the crime rate than as the result of basic policy decisions reflecting beliefs about how we deal with offenders," meaning that "...solutions lie not with jailers and wardens, but with key decisionmakers spread throughout the criminal justice system" (Cory 1988: 4). Those wishing to deal with correctional pressures may not be in a position to do much about demographic trends, overall crime rates or general economic conditions, but they are in an excellent position to alter the key variable-- criminal justice policy. Whether they wish to do so is another matter, but this monograph will discuss a multitude of options available.

C. Trends in West Virginia

The situation in West Virginia makes incarceration forecasting especially hazardous. There is real need for a Forecasting Model to provide some best estimates. At this point, the low crime rate and general demographic patterns for West Virginia tend to suggest a likely decline in the size of the incarcerated population over the next decade. On the other hand, changes in economic conditions and criminal justice policies may tend to produce the opposite effect, leading to higher rates of incarceration and even more pressure on correctional facilities in the state.

West Virginia has for some years boasted the lowest official crime rate in the nation (Federal Bureau of Investigation 1989). Despite questions concerning the accuracy of these figures, they do indicate that West Virginia has a much lower crime rate than that prevailing in American society as a whole ((Black 1970; Garofolo 1977).

Demographic shifts in West Virginia should reduce pressures on its correctional facilities. It is widely recognized that West Virginia has experienced a drop in population over the past decade, and the 1990 census is likely to document this general population decline. Moreover, there are reasons to anticipate that the decline may be especially pronounced among young males, who may be leaving the State in significant numbers to seek employment elsewhere. Given the very low proportion of the black population in West Virginia, it is highly unlikely that the reduction in the size of the crime-prone population of young males as a whole will be counterbalanced by any increase in the subpopulation of young, black males in the State. It would take a considerable shift in these figures to add large numbers of offenders to the rolls of the incarcerated. Moreover, further out-migration of young males may lower the crime rate even further, assuming that neither economic conditions nor changes in criminal justice policy operate powerfully enough to counter the effect.

The impact of economic conditions on West Virginia's incarceration rate is very hard to assess. Unfortunately, West Virginia has experienced some years of especially difficult economic circumstances. Should these conditions continue or worsen, the impact may be seen both in an increasing crime rate and a greater willingness to protect public and private property by incarcerating those offenders who are apprehended, such as occurred nationally during the Depression. However, it should be noted that the low crime rate has persisted for years despite a per capita income below the national average and that previous economic "booms and busts" have not produced wide fluctuation in these rates.

Thus, it would appear that the only factor likely to increase pressures on the correctional institutions of the State significantly is the same factor that offers an opportunity to decrease this pressure dramatically--change in criminal justice policy itself. If demographic trends are operating to reduce pressure and economic conditions have less than a significant effect, then criminal justice policy is of even greater importance in dealing with rates of incarceration in West Virginia than in many other states. Beyond the incarceration rate itself, however, lies the problem of correctional financing associated with the "warehousing" issue.

D. Inmate "Warehousing"

The burgeoning of the prison population during the 1970s and 1980s, combined with a loss of faith in the rehabilitation ideal and a decline in spending on domestic programs in general, led to a national trend toward a "warehousing" mentality. Those in corrections continued to plead for funds to maintain physical facilities and provide programs for inmates, but the public response consisted of either ignoring the issue or calling for a "lock 'em up and throw away the key" policy. Facilities became more and more crowded, and programs of education and rehabilitation tended to lose their funding support.

E. Indexes of Correctional "Warehousing"

Until fairly recently, indexes of correctional "overcrowding," and later of "warehousing", relied on a ratio of institutional population to rated capacity, design capacity or operational capacity. Rated capacity is the number of inmates or beds assigned by some authority to that particular institution. Design capacity is a term referring to the number of inmates planned for when the facility was constructed. Operational capacity is the official figure representing the number of inmates that can be accommodated given a particular facility's staff, existing services and functioning programs.

Under this approach, if an institution has been defined as having an adequate "capacity" to house 500 inmates and is found to be housing 501, then it is by definition "overcrowded," although not in practice "sufficiently so" to require that anything be done. Specific percentage figures can be cited to show the extent to which the institution is operating "over capacity," giving an impression of precision. Unfortunately, this impression can be very misleading, especially if it does not take into consideration the combination of factors suggested by American Correctional Association standards.

Rated capacity, for example, can refer to the original design capacity, to some figure based on subsequent design modifications, to the number of inmates that certain officials have decided is appropriate for one reason or another, or to many other bench marks. And it is not uncommon for the particular bench mark chosen to vary over time depending on circumstances, including budget requests, political pressure and changes in administration. It is difficult to be sure just what "operating within capacity" really means.

The more objective measures of crowding developed in recent years have defined capacity in terms of square feet of space and related measurable units, providing indexes of (1) spatial density, (2) social density, and (3) mobility (Mullen 1985a). But, although each of these measures is very important, none captures the essence of the totality of conditions comprising "institutional characteristics" (Mullen 1985a). They are, however, useful when applied in concert with other indices.

Spatial Density

Groups setting standards for prison capacity have tended to converge on a measure of spatial density calling for 60 square feet of confinement space per inmate--roughly the size of the average bathroom (Mullen 1985a). This does not strike most observers as lavish waste of space. Yet according to a survey conducted in 1978, two-thirds of all state prisoners lived in space below this minimum standard (Mullen and Smith 1980).

Social Density

While simple measures of spatial density appear rather precise, they may tell less about the psychological aspects of warehousing than is usually suggested. The problem is that the experience of privacy, although related to spatial density, does not bear a one-to-one relationship to it. One study has suggested that once space per inmate exceeds 50 square feet, the number of people present and the arrangement of the space may be more important factors in the onset of illness, death, suicide and disciplinary problems than the amount of space allotted per inmate (McCain et al. 1980).

Mobility

The temporal factor is as import as the spatial factor in determining whether an institution is overcrowded because the sheer amount of time spent in a given space may make it more or less stressful. For example, one measure of overcrowding/warehousing refers to the amount of time inmates are confined to their cells. However, using any one of these measures alone as an indicator of overcrowding is probably inadequate because spatial density is associated with social density and both tend to lead to less inmate mobility. This tends to be the case because of the heightened tension, to which the staff responds by "locking down" inmates and restricting their movements within the institution, even when they are allowed outside their cells.

F. Institutional Characteristics

As Mullen (1985a) has pointed out, the use of so-called "objective measures" may also be deceptive, in that the experience of crowding/warehousing is in many ways a consequence of general environmental factors such as the age of the facility, its food service and sanitation practices, and its lighting, air quality, and availability of programs for exercise, work, recreation, and medical care. This acknowledges that crowding is only part of the larger problem of "warehousing," which some courts have designated in terms of the "totality of conditions" characterizing a facility. Lack of adequate programs is as important as actual inmate population density, perhaps in some ways more important.

G. The Impact of "Warehousing"

Deterioration of correctional institutions poses both moral and management problems and reduces the likelihood that any of the basic goals of imprisonment will be realized. Many, of course, either refuse to face the moral problems or deny that they are, in fact, "problems" at all. Instead, hold the view that a different moral code can and should be applied to convicts. Also, many refuse to face management problems or even the question of correctional "goals." Instead, they define them as issues to be dealt with by those who run the prisons rather than as issues which ought to concern policymakers or the public. Such is not the position of this monograph.

Moral Issues

As Mullen (1985a) has stressed, there are serious moral issues associated with the inhumane treatment of human beings which comes as a both a direct and indirect result of overcrowded and deteriorated prisons. To what extent do current concepts of human decency allow for the cramming together of inmates in a way which is damaging to them physically, mentally and morally? Prison life is at best rather harsh, and it is morally questionable whether the state should contribute to the further debilitation, degradation and demoralization of the inmate by adding to the likelihood of stabbing, beatings, extortion, sexual assaults and even homicide that comes with inadequate and overcrowded facilities. It may be argued that the inmates are, after all, convicted felons entitled to "lesser eligibility" than the most deprived of law abiding citizens. Or it may be asked, as Mullen (1985a: 33) does, "Do two wrongs make a right?"

The impact of inadequate and overcrowded facilities on physical debilitation is well documented (McCain et al. 1976; King and Geis 1978; Walker and Gordon 1980). Not only hypertension but tuberculosis, heart disease, diabetes and a host of other physical problems have been traced in part to the chronic stress induced by deteriorating conditions. Under a "warehousing" approach where adequate medical care is not readily available, a prison sentence may represent a sentence to permanent physical damage.

Inmate degradation is a fact of life under crowded conditions with inadequate programs. Inmates are degraded by being ignored and treated as worthless (Toch 1977). They are degraded by a prevailing "warehousing mentality" which treats them as "things" to be jammed together with a minimum of attention except for numbers and schedules (Toch 1985). The lack of ongoing programs means that inmates are not able to experience the formation of "respectable" links between themselves and staff members, whether teachers, counselors or work supervisors, leading to further depersonalization (Glaser 1964).

Progressive inmate demoralization is an understandable result of the debilitation and degradation described. Without ongoing activity, there are no distractions and no way to give meaning to the passage of time, leading to a demoralizing sense of time "dragging" by in such a way that "time does you instead of you doing time" (Toch 1985). Under these circumstances, the search for ways to confer meaning on the passage of time, to vent frustration or simply to keep busy easily leads to activities such as violence or sexual brutality, which add to inmate demoralization.

Management Problems

Crowded conditions and program inadequacies compound the problems normally associated with administering an institution devoted to the custody of convicted felons. The dangers of riots, escapes and general disturbances are greatly increased. But these are symptoms of a deeper problem, which has to do with the greatly increased stress resulting from the constant intrusion of inmates into the personal lives of one another. This stress is damaging to both physical and mental health (D'Atri 1975; Gavin et al. 1980). It tends to increase the occurrence of disciplinary infractions among inmates in general (Megargee 1977; Nacci et al. 1977) and in some cases leads to extreme violence (Ellis et al. 1974). Even in cases where no overt discipline problems are apparent, withdrawal, depression, and other mental health problems develop (Toch 1985).

"Warehousing" tends to complicate daily management and to disrupt routine. This disruption itself has been shown to increase disciplinary problems. In fact, it is the combination of crowding and disruption that most overheats the prison atmosphere (Toch 1985). Not only is disruption a corollary of crowding and program inadequacy, but inmates in crowded facilities are subjected to more frequent transfers, which even when they reduce the overcrowding for a short time disrupt the lives of those who are transferred and destabilize the environment. At the same time, the congestion greatly increases the probability that inmates who "rub each other the wrong way" will be brought into contact. Programs have no room, space is placed at a premium, and inmates are increasingly "locked down" in their cells because there is nowhere else to put them. Each of these aggravating factors feeds on the others in such a way as to produce an explosive build-up of tension.

The idleness that comes with crowded conditions, inadequate programs, and a deteriorating physical environment adds to management problems both real and perceived. In real terms, idleness means more time for inmates to brood and less access to stress-reducing activities. In the perception of correctional staff, this lack of activity means that the inmates are more and more "on their own" and less and less subjected to institutional routines, leading to a sense of loss of control. Response to this sense of loss of control often follows a pattern of "cracking down" so that fairly minor infractions become the basis for disciplinary segregation.

Although classification is one of the keys to successful correctional management as well as to the success of educational, vocational and rehabilitation programs, it too tends to collapse under the pressure of crowded, inadequate facilities. In order to manage a correctional institution properly, it is essential that the administration maintain a sound system of administrative and disciplinary classification and keep the two separate. In terms of administrative segregation, it is important that certain inmates be kept separate from others in order to reduce friction and facilitate the operation of the institution. At the same time, it will undoubtedly be necessary to respond to certain infractions with measured discipline, including punitive segregation under appropriate conditions for an appropriate period of time.

Crowded conditions and program deficiencies tend to interfere with utilization of this basic management tool. Most experts agree that a prison is too crowded for classification to operate optimally when more than 85 percent of its cells are occupied (Toch 1985). Extra beds provide the space necessary to juggle inmates. Those being segregated because they are dangerous or vulnerable or simply because they are being subjected to initial classification or to reclassification can be placed in spare space until assignments can be determined and arranged.

Correctional staff often ask us to remember that they too are "locked up" in the institution for the shift. The management problems produced by overcrowding and deterioration add tremendous stress to their working day. It is difficult to handle so many at a time, and it is certainly difficult to find the time to establish any sort of rapport with individual inmates. The sheer numbers combined with the transience of the population and the severe tension build higher the barrier which already divides inmate and staff member (Ellis, 1982). These pressures in turn lead to increased staff turnover and the consequent presence of a larger proportion of staff less experienced at correctional management.

"Warehousing" produces debilitation, degradation and demoralization among institutional staff members just as it does among the prisoners (Lombardo 1981; Ross 1981). Staff also develop stress-related medical problems, and rates of alcoholism and mental illness increase under crowded conditions with less than adequate programs (Lombardo 1981). Association with these conditions tends to degrade those working there and to produce progressive demoralization (Ross 1981). Frustrations are more likely to be taken out on inmates, who, after all, are being subjected to dehumanization in any case--and with the apparent approval of the larger society.

The Goals Issue

The more pressured the correctional system, the more difficult it is to realize the various goals justifying incarceration in the first place. Incapacitation is a goal even more difficult to attain than is usually the case. Deterrence becomes less likely. And rehabilitation is an almost impossible goal under the circumstances.

Incapacitation is difficult to achieve under conditions where some felons must be released early to make a place for others. For those who suggest that the incapacitation goal can be achieved through the construction of additional institutions, the research findings must be disappointing (Krajick and Gettinger 1982). Two of the most respected studies estimate that crime would go up by only four or five percent if half of all offenders were released tomorrow, with at most an eight percent increase if prisons were abandoned entirely (National Research Council 1978).

Incapacitating criminals has relatively little impact on crime rates because we apprehend and imprison only a small percentage of the criminal population. Moreover, the incapacitative effect tends to come only after the bulk of an offender's crimes have already been committed. For example, nearly half of all offenders arrested for violent crimes are under 18 years-of-age while the peak age at which offenders are sent to prison is in the early to mid-20's. This means that convicted and incapacitated offenders are always being replaced by a new set of recruits who have yet to be caught (U.S. Department of Justice 1980).

Using imprisonment to deal with crime by incapacitating criminals is probably impossible for other reasons as well. Many crimes, for example, are committed by groups. Because the average serious crime involves 2.1 perpetrators, removal of one of the members of the group will simply result in the group's recruiting new members (U.S. Department of Justice 1980). And because members come and go, there are still many offenders "on the street" even when an entire group is apprehended and imprisoned.

Some have suggested that we turn to "collective incapacitation," giving more and longer sentences to all convicted felons, but the costs would be prohibitive (Krajick and Gettinger 1982). A decade ago the National Academy of Sciences (1978) estimated that to achieve a 10 percent reduction in crime, California would have to increase its prison population by 157 percent, New York by 263 percent and Massachusetts by more than 310 percent. The costs would be enormous and the gain modest. In short, the goal of incapacitating the bulk of offenders is a forlorn dream.

As for "selective incapacitation," the notion of somehow locating and locking up the small group of offenders who commit most of the serious crimes, the problem is that we have no adequate means of distinguishing them. Some attempts at prediction have produced as many as 19 mistakes for every correct identification (Krajick and Gettinger 1982). Lacking appropriate means of identifying this "hard core," there is a danger that the criminal justice system may turn to subjective indications, incarcerating some offenders for long terms simply on grounds of race, family background or some other bias.

Turning to the basic deterrence goal, the evidence is overwhelming that rather than deterring the offender from further criminal activity, crowded facilities without sufficient programs tend by their debilitating, degrading and demoralizing effects to harden and embitter the inmate, thus actually increasing the likelihood of further and more serious offenses (Sykes 1958; Glaser 1964; Toch 1975). As one author has written: "Motivated inmates lose motivation, semi-trusting inmates lose vestiges of trust, and those who are bitter become even more bitter at the way they are treated in prison" and "Mental health problems of all kinds escalate where coping failures lower self-esteem, which further reduces coping competence" (Toch 1985: 64, 66).

The frequently stated goal of rehabilitation is difficult to advance under crowded conditions with inadequate programs. For example, although inmate classification has been described as a basic management tool, its second major purpose is to match inmates with available programs, staff and other inmates to foster their rehabilitation. When an institution becomes too crowded or when programs are not readily available, "...the inevitable consequence...is that security risk becomes the only classification criterion that is generally used," and while "...officials would suffer if a hardened offender...were discovered in a low-custody setting," it is still true that, "There is...little risk in leaving such an offender illiterate, should the only available walled prison contain no classrooms" (Toch 1985:64).

It seems clear that rising rates of incarceration coupled with the problems created by "warehousing" inmates would have led to serious problems for correctional systems under any circumstances. The moral issues would have become more pressing, management problems would have escalated, barriers to the realization of any of the goals of correction would have become more difficult to overcome, and growing inmate unrest would have led to an eventual day of reckoning. However, both the rising incarceration rate and the "warehousing" trend ran headlong into another powerful trend--the growing movement for prisoners' rights. It is the latter movement that has forced correctional systems into their present crisis and generated the need for policy options to reduce the growing pressure on staff and facilities.

H. The Prisoners' Rights Movement

Over a century ago, in Ruffin v. Commonwealth (1871) the inmate was described as a "slave" of the state, to be granted or denied institutional privileges without explanation. But by the 1960s things had changed, and the courts were intervening on behalf of inmates' rights in the areas of habeas corpus, civil rights, due process, and the Eight Amendment with increasingly regularity, with results for West Virginia that have been described in the earlier monograph (Ball 1989).

Habeas Corpus and Civil Rights

Even under Ruffin an individual incarcerated under state or federal authority had long been recognized as still entitled to habeas corpus relief, as guaranteed by Article I, Section 9 of the United States Constitution, the federal Habeas Corpus Act and various state habeas corpus laws. For example, in the case of ex parte Hull (1941) the U. S. Supreme Court ruled that a state and its officials may not abridge or impair an inmate's right to apply to a federal court for a writ of habeas corpus.

Although the traditional use of the habeas corpus writ has been to contest the legality of the incarceration itself, near the end of WWII the Sixth Circuit U.S. Court of Appeals in Coffin v Reichard (1944) held that suits challenging the conditions of confinement were proper under the Federal habeas corpus law, setting the stage for the later prisoners' rights movement.

Despite the Coffin decision, the law still required that inmates in state institutions exhaust all remedies at the state level before seeking relief through a federal writ of habeas corpus. This hurdle was later removed as part of the civil rights movement of the 1960s. In the case of Monroe v Pape (1961) the United States Supreme Court resurrected the long dormant Section 1983 of the Civil Rights Act of 1871 when it ruled that citizens could bring Section 1983 civil rights suits against state officials into the federal courts without first exhausting state judicial remedies.  In addition to the possibility of being awarded monetary damages, this direct route to the federal courts was the major advantage of a Section 1983 suit compared to a writ of habeas corpus.

Due Process

During the 1960s inmates began to challenge institutional disciplinary procedures through the due process clauses of the Fifth and Fourteenth Amendments. Initially, the courts took a narrow approach. Due process relief in disciplinary cases was restricted to situations in which "arbitrary and/or capricious" behavior on the part of the correctional authorities could be clearly established. But early in the 1970s, in Wolff v McDonnell (1974), the U.S. Supreme Court greatly extended prisoners' rights with respect to disciplinary measures. Although at the time the Court limited such due process guarantees to proceedings that could result in solitary confinement or loss of "good time," subsequent decisions, based on the Eight Amendment's "cruel and unusual punishment" clause, broadened these rights.

Eighth Amendment Rights

The U. S. Supreme Court's recent rulings on the Eight Amendment's "cruel and unusual punishment" clause has also served to further broaden inmate's rights. Prior to the 1970s, the Eight Amendment was applied only to punishments inflicted against individual convicts rather than to deplorable prison conditions resulting from the lack of adequate funding or from poor management in general (Angelos and Jacobs 1985). However, in a series of important court cases beginning in the early 1970s, lawyers for the prisoners began to cite a host of issues including violence, inadequate medical care, overcrowding, lack of exercise and recreation and inadequate educational, vocational and rehabilitation programs as representing a "totality of conditions," which taken together constituted "cruel and unusual punishment" under the Eight Amendment. Such an approach made it unnecessary to rest the argument upon an allegation of one particular violation of prisoners' rights. In Alabama v Pugh (1978), the U.S. Supreme Court acknowledged some of the implications of the "totality of conditions" argument, and it soon became a favorite means of attacking prison conditions.

Generally speaking, prisoners are now accorded rights not only to adequate medical care but a certain amount of exercise and recreation to remain in proper physical and mental condition. Those deprived of sufficient exercise and recreation may be regarded as subject to "cruel and unusual" punishment, especially if other "warehousing" conditions also exist. At the same time, most jurisdictions have come to accept rehabilitation as one of the goals of correction with correctional facilities expected to provide rehabilitation services and such services considered as possible prisoners' rights.

With the Pugh decision and later rulings such as that in Rhodes v Chapman (1982), the U.S. Supreme Court continued to extend the right to protection under the "totality of conditions" concept. By the middle of the 1980s most courts were holding that the sum of deplorable conditions may be unconstitutional even if the individual conditions taken alone are not (Angelos and Jacobs 1985). In Ruiz v Estelle 1980) the entire Texas prison system was ruled unconstitutional, and by the late 1980s more and more prisons were being found unfit by the federal courts (Inciardi 1988). Thus, the rising rates of incarceration and the "warehousing" trend had encountered stiff judicial resistance, and nearly every state undertook a search for new policy options to control intake, reduce length of stay, and better manage existing carrying capacity.

In 1973, the National Commission on Criminal Justice Standards and Goals for Corrections completed the most sweeping review of corrections in the United States ever conducted, issuing a series of detailed recommendations in the form of "standards" to be applied and "goals" to be sought. The following year, the Commission on Accreditation for Corrections was created to work with the American Correctional Association to develop and issue ten sets of standards covering all aspects of corrections. At the state level, those concerned with correctional problems responded by creating either special task forces or entered into cooperative efforts with other states to address their correctional problems. Some states combined both approaches.

A. The Task Force Approach

In an effort to address the problems facing their correctional systems, a number of states made use of specially appointed task forces. Two of the most effective task forces operate in Ohio and Oregon. It is instructive to observe that both states put most of their efforts into data collection and analysis.

In Ohio, the Governor's Committee on Prison Overcrowding (1986) developed an extensive set of recommendations. During its explorations, the Committee stressed the need for additional information and, above all else, that in their haste to construct new facilities that policymakers do not forget more basic issues involving the nature and application of criminal law. This lesson is central to the present monograph.

In Oregon, the Governor's Task Force on Corrections Planning (1988) concluded by agreeing with Ohio's position that the major problem facing correctional planning is the need for information. Thus, one of its major recommendations called for state legislation to formally establish a Criminal Justice Information System User's Group. This group was given the responsibility to develop and coordinate standards and procedures.

In Oregon, the User's Group included the Department of Corrections, the State Court Administrator, the Department of State Police, the Crime Analysis Center, the Criminal Justice Council, the Board of Parole, county prosecutors, local law enforcement, county community corrections, juvenile departments, and the Mental Health Division. Through such coordination, computer-generated information can be shared almost instantaneously. These cooperative efforts are to be coordinated by a new Criminal Justice Information Division. West Virginia can learn much from this example.

B. The Cooperative Effort Approach

One of the major state cooperative efforts in corrections was initiated by the creation of the National Jail and Prison Overcrowding Project (NJPOP). It was organized and staffed by the Center for Effective Public Policy, a non-profit consulting group and funded by the National Institute of Corrections (NIC) and the Edna McConnell Clark Foundation. The mandate was to develop and advocate measures to control overcrowding and to work for systemic changes that could bring corrections systems under more rational control. Twenty-three states applied for funding, and in late 1981 the following four states were selected to participate: Colorado, Michigan, Oregon and South Carolina. This so-called "first generation" of state projects began work in April 1982 (Cory 1988). In April 1984, three "second generation" projects were funded in Louisiana, Ohio and Tennessee and two special state "policy panels" on jail overcrowding were established in Oregon and South Carolina.

The political environment in each of the states was a major factor in determining which states would be selected to participate in these projects (Cory 1988). Selection criteria included the urgency of the corrections' problem, the degree of problem awareness among political leaders, the readiness of corrections officials to cooperate, the willingness of policymakers to regard additional construction as only one of many possible responses, freedom from extreme personal, political or ideological tensions, and the presence of corrections reform "champions." Collectively, these states benefitted from increased credibility, the existence of a national information network, the research materials developed and training seminars conducted as part of the project, the availability of "second opinions," the expertise of the national staff, and a pool of nationally recognized consultants (Cory 1988).

The experience gained from these efforts can be of considerable benefit to West Virginia. According to NJPOP, the various states involved in the project faced three fundamental roadblocks. These were identified as (1) "tunnel vision," (2) the "brush fire mentality," and (3) political rigidity (Cory 1988). Because NJPOP concluded that these problems were likely to be the same in almost every state, it may be useful to address each.

"Tunnel vision"

"Tunnel vision" was identified as a persistent problem in each of the participating states. Because the criminal justice system tends to be so fragmented, policymakers often fail to think comprehensively about it. Where sheriffs and correctional administrators tend to identify insufficient cell space as the cause of overcrowding, judges may think the problem stems from inflexible sentencing policies. Considerations of "turf" tend to mean that policymakers consciously or unconsciously move to protect existing empires or attempt to build new ones.

"Brush fire mentality"

The "brush fire mentality" pattern often dominates corrections policy because policymakers frequently define their job as responding to the current crisis. Unfortunately, this often leads to "band-aid" approaches that may "stop the bleeding" temporarily, but only adds to the problem later. Moreover, compounding this problem is that it was discovered in state after state that policymakers were often rewarded for these "quick reactions" even when these reactions tended to worsen things in the long run.

Political rigidity

The problem of political rigidity was identified as one of the most ubiquitous problems facing correctional policymaking. Correctional debate is most often characterized by much heat and little light. Political polarities dominate debate, and partisanship tends to rule the day. In virtually every state involved with NJPOP this problem lead to some splintering of efforts and impeded development of creative solutions.

C. Two Case Studies: South Carolina and Louisiana

Availability of external resources and the chance to "compare notes" and learn from one another led each state to take a somewhat different view of its correctional system and to consider alternatives that probably would not have been examined without the opportunity to reflect on what others were doing. This must be regarded as a crucial part of any state's efforts to develop correctional alternatives. No matter how creative the local policymakers may be, it will be difficult for them to conceive of and give consideration to all of the possibilities that have been developed and tried across the United States. Case studies of states such as South Carolina and Louisiana, both in some ways similar to West Virginia, provide examples.

South Carolina

At the beginning of its involvement with NJPOP, a number of the members of the South Carolina group, including the South Carolina Commissioner of Corrections, advocated passage of a state emergency powers act. The proposed legislation, empowering the Governor to order the early release of inmates approaching the end of their sentences, had already been considered and rejected by the South Carolina legislature during an earlier session. Those opposed had objected that such a law (1) would make elected officials responsible for the early release of certain prisoners and (2) would set a rigid, legal limit on the capacity of the state prison system. The situation had stalemated.

The stalemate was broken when South Carolina embraced the idea of beginning with a basic "problem-solving approach" involving reconsideration of the basics of the debate (Cory 1988). This began with a survey of the types of inmates in the correctional system. The results of the survey surprised many of the participants. For example, it was discovered that more than 400 inmates were imprisoned for writing bad checks or failing to make child support payments, and a total of 40 percent of those locked up were imprisoned for nonviolent property offenses. These and other survey results led to the conclusion that many inmates could be released without much political risk or danger to the community.

In South Carolina a new definition of correctional system capacity based on the concept of "safe and reasonable operating capacity" emerged from the overall review. This figure actually exceeded design capacity by some 20 percent, and it served as a foundation for development of consensus around more effective utilization of the total system. Similar reconsideration derived from examination of the work in other states provided a means of working through most issues. "We learned that on matters on which there appeared to be 180-degree differences you can reach consensus," one of the participants reported (Cory 1988:17).

Louisiana

In 1985, Louisiana committed itself to constructing three new state prisons, a commitment that had been made without consultation with the state's criminal justice officials. The resulting confusion led the state legislature to pass a comprehensive "correctional growth planning act" designed to bring some order to the situation. The process is worth a brief review.

During the 1980s Louisiana, like West Virginia, went through a significant economic downturn. As in West Virginia, the worsening economic conditions coincided with the development of severe crowding problems at deteriorating state correctional facilities, leading to court intervention. Although the legislature had approved plans during the early 1980s to construct five new prisons, the fiscal crisis made it obvious that such facilities could not be built.

Nevertheless, the construction of new prisons continued to draw powerful political support, precisely because they could be built in those areas hardest hit by the economic slump, providing needed jobs and a boost to the local economy. Although differing in a very important way with respect to the question of funding, this too parallels the situation that emerged in West Virginia in the early months of 1989, at which time a private corporation offered to build and staff with local residents two prisons to house inmates from the District of Columbia. In Louisiana, the political pressure prompted the state legislature to authorize in 1985 $150,000,000 in bonds to finance construction of three new prisons, again without consultation with criminal justice leaders in the state.

Fortunately, NJPOP had been operating for some time in Louisiana, providing a vehicle through which coordination might be achieved. The NJPOP state project combined forces with the Governor's Prison Overcrowding Policy Task Force to draft and seek adoption of the "correctional growth planning act" mentioned earlier. Passed during the 1986 session of the legislature, this act grants new oversight and planning responsibilities to the state's Commission on Law Enforcement and the Administration of Justice (Cory 1988). Beginning in 1987, the Commission was directed to provide to the legislature and the governor monthly projections of Louisiana's jail, prison and probation trends. The Commission was also directed to make "correctional impact statements" on all proposed changes in state sentencing laws and to take a leadership role in any future jail or prison construction plans. At the same time the state was prohibited from appropriating any correctional construction funds without a detailed "condition of need" report from the Commission, with the report required to include a cost/benefit analysis of community corrections options to incarceration.

D. The Bureau of Justice Assistance Prison Capacity Program

Concerned with correctional pressures nationwide, the Bureau of Justice Assistance (BJA) has recently funded a Prison Capacity Program, with chief responsibility for coordination and technical assistance in the hands of the National Council on Crime and Delinquency (NCCD). The Program involves 14 participating states including Connecticut, Florida, Hawaii, Indiana, Louisiana, Montana, Nebraska, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Texas and Wisconsin. Part of the technical assistance is under subcontract to the Correctional Services Group (CSG).

As of January 1988, 10 of the 14 participating states were under court order to rectify prison crowding or conditions. Several faced fines in the event of noncompliance, and several faced possible court orders to release inmates. Pressures on each state were severe.

Many of the participating states have either used existing task forces or developed similar task forces to coordinate activities. Nine of the task forces were appointed by the governor, two by the legislature, and one by the corrections department. Texas, on the other hand, took a different approach. It convened an intensive three-day conference under the direction of the governor. This conference pulled together 40 business, civic, criminal justice and state government leaders and culminated in a formal statement of recommendations.

Each of these states proceeded by first developing or adopting a Projection Model to forecast patterns of offender movement through system "pipelines." While some states developed their own projection models, others adopted a highly sophisticated model already developed and tested by NCCD. For example, in Ohio the Governor's Committee on Prison Crowding (1986) adopted the NCCD model with minor changes tailored to fit the situation in that state. The model has the capacity to provide 10-year base projections as well as estimating the potential impact of policy changes. Such a Model might be worth consideration in West Virginia.

Any Projection Model should be updated semi-annually and maintained on a regular basis. Validity is dependent upon comprehensive, timely and accurate data, and it is important that the data base be updated frequently. In Ohio, projections on the prison population are to be provided to the legislature every six months with impact assessment provided so as to assess the effect of policy changes as requested. Start-up costs amounted to approximately $125,000 to hand-gather the basic data and computerize it with approximately $35,000 budgeted for operating costs per year (Governor's Committee on Prison Crowding 1986). Seven of the states participating in the Prison Capacity Program have undertaken efforts to develop or improve Correctional Information Systems to get a better grasp of monitoring and planning. For example, Oregon has awarded a major contract to Abt Associates to complete an evaluation of the current Community Corrections Act, and Oklahoma has prepared to submit a 3-5 year plan to improve the various components of the criminal justice system (NCCD 1988b). South Carolina has concluded a survey of the 45 sheriffs in the state in an effort to obtain baseline data on prisoner flow, while Hawaii, Nebraska, Rhode Island, South Carolina and South Dakota have begun studies of their prison classification systems (NCCD 1988b).

Six of the 14 participating states have initiated studies of sentencing practices. While in some states, such as Florida, the study will focus upon the impact of recent sentencing reforms, other participating states have chosen to concentrate upon measuring current sentencing practices to assess disparity and the impact of alternatives to incarceration (NCCD 1988a). Louisiana and Oregon have obtained BJA funding and are proceeding to develop sentencing guidelines, and Louisiana had by mid-1988 prepared 52 separate impact statements for their state House Committee on the Administration of Criminal Justice (NCCD 1988c).

Six of the states participating in the Prison Capacity Program, Texas, Wisconsin, Hawaii, Oklahoma, Oregon and South Carolina, have initiated Planning and Systems Coordination Projects. These are designed to "improve the criminal justice system and to bring together key decision makers from all branches of government and the criminal justice community and provide them with accurate and timely information on important criminal justice issues, and create a forum whereby rational decisionmaking can take place" (NCCD 1988a:3). Such an effort merits consideration in West Virginia.

E. Implications for West Virginia

The collective experience of the various states suggests that any solution to correctional pressures must involve consideration of an array of policy options combined in a comprehensive approach. Such strategies range from policies for control of intake into correctional systems to alternatives means for reduction of average length of stay. At the same time, considerable emphasis must be placed on means to improve their ability to handle the prisoners entrusted to them (the carrying capacity of the correctional systems). The following chapter will investigate these options in detail.

A comprehensive approach to correctional pressures in West Virginia must give consideration to a broad range of possible options. In summary, these include (1) intake control, (2) adjustments in length of stay, and (3) improvements in system capacity. The first may be accomplished in part by movements toward decriminalization, decreasing the number of imprisonable offenses through greater use of nonincarcerative punishments, and restructuring of responsibilities within the criminal justice system. The second may be approached at the "front end" by changing sentencing policy or at the "back end" by increasing the use of parole, granting "good time," or other strategies. In addition, the carrying capacity of the correctional system can be improved not only by constructing new facilities, but also by making more efficient use of existing facilities.

The first broad policy option for dealing with correctional pressures lies in intake control strategies governing the flow of inmates into the correctional system. However, it must be noted that in most states the use of various "alternatives to incarceration," such as diversion programs, formalized restitution, community service, and intensive probation, that have been developed have not resulted in dramatic reductions in the number of people incarcerated. Over the past the two decades the number of citizens locked up has doubled (Ball et al. 1988).

In spite of the relatively recent "lock 'em up" trend, the increasingly severe pressure on correctional resources has led many states to consider basic changes designed to slow intake into jails and prisons. Many different policymakers at many different levels both within and outside West Virginia State government can play important roles here. Options are available to the legislature, prosecutors, the defense bar, the judiciary, public agencies outside the criminal justice system itself, private agencies, probation and parole agencies, the governor, and to state correctional authorities themselves. These will be reviewed in turn.

A. Legislative Options for Intake Control

Legislative options available for reducing the intake of offenders into state prisons include (1) pure decriminalization, (2) reclassification/downgrading of offenses, (3) substitution of noncriminal responses for certain offenses, (4) revision of penal and/or sentencing codes through methods including provision for alternatives to custodial sentencing such as setting of special conditions for probation, development of community-based programs, probation enhancement, intensive supervision, use of financial options, direct sentencing to halfway houses, intermittent confinement, or "house arrest," (5) a presumption for use of less drastic means, (6) creation of a Sentencing Commission to set guidelines, and (7) restructuring of state and local responsibility for offenders (Harris 1984; Petersilia 1987; Cory 1988). There are a variety of possibilities available under each rubric, each of which has been tried at a number of locations across the United States.

Pure Decriminalization

By the early 1980s straightforward decriminalization had been undertaken in 34 states and territories in the case of public inebriation, which is now often redefined as an illness rather than a crime (Harris 1984). Although no one expects imprisonable offenses to be decriminalized in the near future, decriminalization of less severe offenses can have an effect on correctional systems. For example, decriminalization of public drunkenness allows some imprisoned inmates to be returned to local jails where bed space is now available and, at the same time, provides for a more effective public policy that treats alcoholics through detoxification and medical intervention rather than jailing. West Virginia has already moved in this direction and could move much further if policymakers wished.

Reclassification/Downgrading

Downgrading proceeds by reexamining criminal codes in an attempt to reconsider policies with respect to certain offenses that may have been handled too harshly. As several studies have indicated, that the United States is characterized by a recurrent pattern of punitive overreaction to the dramatization of its social problems (Sutherland 1950; Ball 1979; Gusfield 1981). We often respond with unnecessarily harsh measures which are so counterproductive as to aggravate the problem they were supposed to solve and create additional problems at the same time. Reflection in the cool light of hindsight often suggests that such penalties can be reduced.

Substitution of Non-criminal Responses

The use of non-criminal responses provides an alternative to outright legalization while still retaining a certain degree of penalty (Shane-Dubow et al. 1985). In many cases it is possible to replace the use of the criminal justice system with civil regulation. It also possible to employ a variety of administrative options in lieu of criminal penalties. For example, some states first responded to the problem of refusal to make child-support payments by jailing the offender. Now, they garnish wages instead. While it may be that few of the penalties leading to imprisonment might find direct substitutes in civil or administrative procedures, a number of offenses now leading to jailing could be handled in this way.

Revision of Penal or Sentencing Codes

Another way to reduce intake into jails and prisons is to move toward revision of penal and/or sentencing codes (Petersilia 1987). There are many ways in which sentencing codes can be altered so as to control prison intake. Indeed, the earlier examination of the trend toward increased incarceration of the U.S. population during a time of declining crime rates suggests that a general reconsideration of sentencing severity may be in order. For those who may take this as a "liberal" position with implications of "coddling criminals," it must be emphasized that from the mid-1980s on one of the gubernatorial leaders in such sentencing reform was the noted conservative political figure, Governor duPont of Delaware.

Special Conditions for Probation

There are several techniques for providing alternatives to incarcerative sentencing, including setting special conditions for probation such as restitution and community service (Harris 1979). These have the advantage of providing for the official denunciation or "reprobation" of an offense while at the same time providing direct "reparation" to the victim. In many cases this provides an effective means to restore public confidence in the law without ejecting the offender from his or her community (Ball 1979). While it is important to demonstrate to the public that offenders are being punished for their crimes, it is also worth recognizing that punishment can take place in the community itself in a relatively "normal" atmosphere that contributes something to the self-worth of the offender.

Expansion of Community Corrections

Several states have moved recently to deal with the pressures on their correctional facilities by expanding their community corrections systems through passage of specific legislation backed by funding (Cory 1988). These include Tennessee, Minnesota, Oregon, Kansas, Virginia and Missouri. For example, in 1986 Community Corrections Boards were appointed by cooperating counties under an optional plan in Tennessee. These Boards then drafted plans for diverting eligible offenders, who in the case of Tennessee were defined as those with no known history of violence or drug-related behavior, into newly developed community corrections programs. Once the plans were approved by the Tennessee Department of Corrections, the counties could apply for part of the $3.5 million appropriated by the legislature for this purpose.

Probation Enhancement

Louisiana has moved to deal with correctional pressures through probation enhancement. In 1985 the Louisiana Legislature authorized hiring of additional probation officers in a program designed to reduce probation officer workloads and allow for more intensive supervision (Cory 1988). This program has become especially appealing to the judges of that state, giving them much more confidence in the probation system and leading to greater use of probation by many judges there (Petersilia 1987; Cory 1988). As West Virginia proceeds with the further professionalization of its probation officers, this option may become even more appealing.

Intensive Supervision Programs

One of the most recent trends toward nonincarcerative options is the development of Intensive Supervision Programs (ISP), which have become a popular alternative in recent years (Erwin and Bennett 1987). Such programs, which provide for close surveillance and careful monitoring of offenders supported by a greatly reduced caseload on responsible probation officers, have been implemented in at least one county in 40 states (Petersilia 1987). First initiated on a large scale in Georgia, statewide programs are now in effect in Arizona, Connecticut, Florida, Massachusetts, New Jersey, New York, Illinois, Oklahoma, Texas, Utah, Vermont, and Virginia. Through such a program, the Incarceration Diversion Unit of the Lucas County, Ohio Adult Probation Department has been credited with a 20 percent reduction in the county's commitment to state prisons and a $410,000 savings in incarceration costs during the first few years of operation (Harris 1984).

Financial Options

In addition to creative uses of probation, financial options such as fines may be made more widely available as still another alternative to custodial sentencing. Many countries use a "day fine" system of penalties as a means of scaling the amount of the fine to the offender's ability to pay. According to the "day fine" system, a per diem amount is assigned to each eligible offender according to his or her financial situation. This figure is then multiplied by the number of penalty days according to the severity of the offense. In Sweden more than 90 percent of all offenses are disposed of by fines, generally by using the "day fine" method (Harris 1984).

Direct Sentencing to Halfway Houses

Another community-based option is direct sentencing to halfway houses or other community residential facilities (Harris 1984; Petersilia 1987). Although commonly used as a strategy for moving an inmate from prison into the community through a gradual, controlled process of reentry, some states allow for commitment to such facilities in lieu of institutional incarceration in a jail or prison. Obviously, this strategy provides an alternative for offenders deemed in need of greater monitoring than could be accomplished, for example, by intensive supervision, but not requiring institutionalization. It makes available a degree of custodial sentencing without adding to intake problems of jails and prisons when these are unnecessary.

Intermittent Confinement

The extent of custodial sentencing may be reduced by allowing for intermittent confinement involving weekends, nighttime, or some other period, as has already been accomplished in 30 states (Harris 1984). This penalty, which places the offender in a probation situation during time spent outside the correctional facility, serves to provide the public with a sense of punishment and to impress the offender with a "lock-up" experience without isolating him or her with consequent job loss, breakdown of family ties and a host of other problems that aggravate the situation. Although some judges in West Virginia are experimenting with this policy, legislative support could encourage much wider use (McCarthy 1987).

"House Arrest"

West Virginia has already moved forward with experimentation involving the new "house arrest" option using electronic monitoring of offenders in the home (Ball et al. 1988). Several states, including Florida, Kentucky and New Mexico, pioneered this alternative in the mid-1980s. Under this sentencing option, offenders are "wired" with an electronic ankle bracelet. The bracelet serves as a transmitter, with a receiver fixed in the home telephone. If the offender moves more than 150 feet from the telephone, the transmitter-receiver signal contact is broken, and a telephone call is automatically placed to a central location notifying monitors that the offender has left the home. To this point, the evidence suggests that such "house arrest" can reduce jail populations significantly, while, at the same time, provide protection for the public by keeping offenders "off the street" (Ball et al. 1988).

Presumption of Least Drastic Means

As far back as the early 1970s the National Commission on Criminal Justice Standards and Goals for Courts (1973) recommended a policy of least restrictive penalty. The goal was to achieve sentencing that would not restrict liberty more than necessary. In 1979 the American Bar Association advocated a presumption of least drastic means, delineating seven sentencing alternatives and recommending that judges be required to impose the least severe of them that would satisfy legitimate sentencing purposes (Harris 1984). Adoption of a presumption of least drastic means also goes against much current sentiment, but it is undeniably cost effective, and it reduces pressure throughout the criminal justice system. It is worth consideration in West Virginia as in other states.

Sentencing Commissions

Minnesota, Pennsylvania and other states have moved to create sentencing commissions to prepare guidelines, in some cases partly for the purpose of controlling prison intake. Sentencing institutes, initiated at the federal level in 1958, are often used to disseminate the ideas of these commissions, while sentencing councils, which were started in 1960 in the federal court for the Eastern District of Michigan as a method of providing for greater consistency in sentencing, can also be used to reduce pressure on correctional system (Inciardi 1990).

Restructuring State and Local Responsibilities for Offenders

Prison intake could be reduced if there was a restructuring of the current responsibilities held by state and local government authorities. These include (1) providing incentives for communities to retain offenders, (2) redefining local responsibility for lesser offenders, and (3) adoption of comprehensive community corrections laws (Harris 1984). The most commonly cited example of providing incentives to retain offenders was the adoption in California of a probation subsidy program to provide monies to counties for reducing their commitments to state prison. By the early 1980s Virginia had adopted a Community Diversion Incentive Act which provided participating localities funds for each offender that was bound for state prison but was retained locally instead (Harris 1984).

Although statutes typically distinguish between offenders to be sent away to state facilities and those to be incarcerated in local jails according to certain traditional length of sentence criteria, there is no reason that legislatures need to be rigidly bound to sentence length (Inciardi 1990). It is within the power of legislatures to make these distinctions based not only on sentence length but also upon type of offense, need for rehabilitation programs, potential for violence, security risks and a variety of other criteria. Through redefining local responsibility for lesser offenders, legislative bodies can reduce the temptation to reduce local expenses by "dumping" offenders on the state.

As indicated earlier, some states have adopted comprehensive community corrections laws in an effort to restructure state and local responsibility for offenders. In 1973, Minnesota passed a Community Corrections Act that incorporated a financial incentive to counties to develop local correctional programs, a financial disincentive to committing nonviolent adults or juveniles to state institutions, a local decision-making structure and a revised state role in planning, training, evaluation and setting of standards (Harris 1984). Other states have adopted similar legislation, and it would appear that such efforts as the National Jail and Prison Overcrowding Project and the Prison Capacity Program are now leading more and more states in this direction (Cory 1988).

C. Prosecution Options for Intake Control

Although prosecutors may not come to mind immediately when one considers methods of controlling prison intake, the prosecutors of West Virginia are in an excellent position to assist in this effort. Prosecutors might consider expanding their knowledge of nonincarcerative alternatives and adopting appropriate policies on sentencing recommendations. Both approaches can make a huge difference.

Expansion of Knowledge of Nonincarcerative Alternatives

The National District Attorneys' Association has already initiated a Prosecutorial Alternatives to Incarceration Project in an effort to develop and provide information on alternatives to incarceration (Harris 1984). This project was designed to identify successful alternatives now in existence and to disseminate information to other prosecutors so that they could consider their use. Given the importance of prosecutors in determining prison intake and influencing length of stay, one obvious means for reducing both is to acquaint them with the available alternatives (Petersilia 1987).

Adoption of Appropriate Policies on Sentencing

Some prosecutors are reluctant to consider recommendations for nonincarcerative penalties because they do not want to appear to be too soft or lenient in an environment stressing a "lock 'em up" approach (Shane-Dubow et al. 1985). But many of these same prosecutors are receptive to approaches that provide greater attention to the needs and "rights" of victims. Programs such as the restitution and community service options discussed earlier do precisely that. Thus, the political appeal of the "tough" prosecutor can be matched in some ways by the appeal of the prosecutor who shows concern for the victim of the offense and "forces" the offender to "make things right" rather than simply taking a pound of flesh for the state (Ball 1979).

Prosecutors have always had to exercise their discretion in selecting which cases to prosecute, how to set charges, whether to accept a plea bargain and if so within what limits, how to handle the case in court and what sentencing recommendation to offer upon a conviction. It is widely acknowledged that such discretion is necessary if the business of the court is to proceed. In some instances, it may prove useful to seek alternative to custodial sanctions so that time and energy can be spent on more serious cases.

D. Defense Bar Options for Intake Control

Just as the policies of the prosecutor have a major impact on both prison intake and the length of time spent in prison, so can the policies of the West Virginia defense bar. Options for the defense include (1) defendant-oriented pre-sentence reports, (2) retention of private agencies to prepare assessment and recommendations for nonincarcerative penalties, (3) appeal of custodial sentences, (4) expansion of knowledge of nonincarcerative options, and (5) representation for offenders in probation revocation proceedings (Harris 1984). Together, the use of these options can have a significant effect upon jail and prison intake.

Defendant-Oriented Pre-sentence Reports

Although it consumes valuable time, the defense bar can make a contribution to both prison intake reduction and the lessening of the length of correctional stays by preparing memoranda that support noncustodial sentences. It is also possible for the defense to submit memoranda that will prepare the way for early release through parole or other mechanisms. Such material can have an effect either at time of sentencing or sometime later in the correctional process, where it may provide the information and rationale facilitating decisions for release from overcrowded or otherwise deteriorated facilities.

Retention of Private Agencies for Preparation of Assessments and Recommendations for Non-Custodial Penalties

Where possible, the defense can consider contracting with private agencies to develop pre-sentence materials supporting noncustodial penalties. Realistically, contracting with private agencies is likely to occur only in those cases where the defendant has substantial resources available. Indeed, this is one of the means by which the criminal justice system can be manipulated in favor of lighter sentences for the affluent. But the services of such agencies as the National Center on Institutions and Alternatives, which offers Client Specific Planning services, can used much more widely.

Appeal of Custodial Sentences and Expansion of Knowledge of Non-Custodial Options

Given increasing correctional pressures, it may be easier to win on appeal of custodial sentences. If it is possible to show that such institutional custody is unnecessary and out of proportion to the offense and it can be demonstrated that available correctional facilities are inadequate, such appeals may constitute a successful strategy. It would appear that some courts are more willing than in the past to consider appeals on these grounds, so it is increasingly important that the defense bar itself become acquainted with the various nonincarcerative options that may be suggested.

Representation of Offenders in Probation Revocation Proceedings

In recent years offenders have been granted greater rights with respect to representation by attorneys in probation revocation hearings (del Carmen 1982). Probation is less and less considered as a disposition to be granted and revoked at the will of the court without supporting evidence or basic due process. Because revocation of probation is an important step that will very likely result in incarceration, representation by the defense bar is crucial as a possible means of reducing intake by including only those offenders actually in need of such a penalty.

E. Judicial Options for Intake Control

Judges in states such as West Virginia already differ considerably in their impact on prison intake, with some judges tending to imprison more than others. Options available to the judiciary that can have an appreciable impact on reducing intake include (1) expanded use of nonincarcerative sanctions, (2) requiring that pre-sentence reports explore the possibility of such sanctions in lieu of incarceration, (3) increased use of specialized assessments or diagnoses, (4) use of sentencing guidelines, (5) appellate review of sentences, and (6) increased use of sanctions less than revocation for probation or parole violations (Shane-Dubow et al. 1985; Harris 1984; Petersilia 1987). Each of these options gives the judiciary power to affect the situation, provided, of course, that the particular members of the judiciary involved support such actions in general or regard prison conditions as justifying resort to them under special circumstances.

Expanded Use of Nonincarcerative Sanctions

Even if both the prosecution and defense advocate alternatives to incarceration, the power to invoke such options rests with the judge. Time after time, studies of sentencing alternatives have concluded that it is the judge who usually initiates their consideration in the first place (Petersilia 1987; Ball et al. 1988). Sometimes this is the result of the general judicial climate of certain courtrooms and sometimes it comes about because the judge has initiated specific action designed to expand alternatives. One example of the latter was the work of Judge Love of New Mexico, who first conceived the idea of electronic monitoring of offenders, saw to it that the necessary equipment was engineered, sought permission from the New Mexico Supreme Court to adopt electronic monitoring on a trial basis, and proceeded to do it (Ball et al. 1988).

Requiring That Pre-sentence Investigation Reports Examine Non-Custodial Sanctions

Although it is within the power of prosecutors and the defense bar to take greater initiative in seeing to it that pre-sentence investigation reports give close attention to the possibility of alternatives to incarceration, realism requires one to acknowledge that it is the judge who has the primary influence here. Given the pressure of time, neither the prosecution nor the defense is likely to push the issue unless the judge expresses real support, except in certain cases where the offender has financial or social resources available.

Increased Use of Specialized Assessment or Diagnoses

In especially dramatic or peculiar cases it is common for the court to order special assessments of particular offenders in an effort to determine whether the offender should stand trial, what pleas may be appropriate, which disposition should be considered, and/or to obtain in general a greater understanding of the offender. Unfortunately, there is a tendency to ignore the possibility of some medical, psychological, or social influences that might make a great difference in sentencing if discovered, as long as the offender seems "typical" and the offense fits the "proverbial characterization" with no especially "peculiar" circumstances (Sudnow 1965). Not only does this mean that the offender is more likely to be jailed or imprisoned inappropriately, but it also means that offenders with severe but undiagnosed medical or psychological problems tend to be forced into correctional facilities where they contribute more than their share to constitutionally questionable conditions.

Although it is obvious that increased use of offender assessments can provide guidance to the judge and reduce the burden on corrections, it is once again important to acknowledge fiscal reality. Given the "pay now or let someone else pay later" situation, it is worth considering whether local jurisdictions might not be offered incentives for closer investigation of the medical, psychological and social factors surrounding a variety of offenders and offenses. The cost might be more than offset by savings realized by the correctional facilities that would not have to provide the staff time required to supervise and deal with the unusual problems of certain offenders who really have no place being there (Gottfredson and Gottfredson 1979).

Use of Sentencing Guidelines

As indicated earlier, legislative bodies can take the initiative in moving toward sentencing guidelines that can not only reduce prison intake but also provide for greater uniformity in sentencing disparity across their state and a much greater sense of equity. Some judges have not left this to their state legislatures. Instead, they have moved to have guidelines adopted within their own jurisdictions and to encourage judges elsewhere in their state to adopt them. Although it is notoriously difficult to "coordinate" the work of judges because they tend to be protective of their courtroom's autonomy, it is possible for the judiciary to exert a greater influence over its members. These issues can be debated at judicial conferences, discussed in newsletters, and argued among judges themselves in an effort to achieve some consensus through a sharing of ideas and experience (Inciardi 1990).

Appellate Review of Sentences

Appellate review of sentences was once a fairly rare phenomenon and remains more or less a means of exerting some control over individual judges who actually impose sentences beyond the legal limit or stray much further from the general legal parameters than can be tolerated. It is possible that such review will become more common. The conservative trend across the U.S. may be working against appellate review of sentences, but the larger trend toward rationalization and standardization is still encouraging it. Such review is not likely to have an enormous impact on prison intake, but to the extent that it develops, it will tend to reduce rather than increase intake.

Increased Use of Sanctions Less Than Revocation for Probation or Parole Violations

Many violations of probation or parole conditions represent "technical violations" rather than the commission of another crime. In these instances the probationer or parolee has broken one or more of the rules governing the probation or parole status, perhaps by being seen with certain companions, failing to report to the probation or parole officer on time, failing to make mandated restitution payments or some similar violation (Gottfredson et al. 1978). In such cases it is important that the judge support the actions of the probation or parole officer, who is usually operating with a heavy caseload and major monitoring responsibilities, but this does not require revocation (Studt 1978). If the judge has acted earlier to insure that there are a range of options available short of revocation, it will be possible to turn to these when the occasion demands, without being forced to take the most drastic step available.

F. Non-Criminal Justice Agency Options for Intake Control

Just as the courts can implement a variety of options providing for alternatives to incarceration, much can be accomplished by other public agencies and by agencies in the private sector. Correctional intake can be reduced through (1) programs and services for offenders with special needs, (2) assistance with pre-sentence investigation reports, (3) community supervision, (4) advocacy, and (5) the development of community-based facilities (Harris 1984).

Organizations devoted to providing programs and services for offenders have become very common across the United States. For example, a regional community-based program called PACT (Prisoner and Community Together, Inc.) now operates programs for offenders in six Indiana cities and in Chicago (Harris 1984). PACT programs include supervision of offenders engaged in restitution and community service, operation of a victim/offender reconciliation program, operation of community residential centers for men recently released from prison along with men in pre-release programs and work-release programs, and advocacy for community-based programs in general. In South Carolina, the Allston Wilkes Society provides similar services as well as providing citizen volunteers to assist prisoners in parole hearings (Harris 1984).

G. Probation and Parole Agency Options for Intake Control

Probation and parole agencies are extremely important in determining who goes to prison. They can have a significant effect upon prison conditions through policies that address unnecessary intake by (1) expansion of pre-sentence investigation report functions, (2) reorganization to provide non-traditional supervision and compliance monitoring, (3) revision of revocation policies, (4) adoption of differential supervision levels, (5) decreasing the length of probation and parole supervision, and (6) increased use of contract probation (Duffee 1980; Fogel 1984; Harris 1984). Together, these offer a wide variety of alternatives.

During the past five years, West Virginia has made great strides in the professionalization of its probation officers and in increasing their awareness of these options. Through the creation of the first M.A. program for probation officers in the U.S., the State has laid the foundation for a much-expanded community corrections approach if this option is approved. Probation officers now receive graduate instruction in courses including "Probation and the Legal System," "Probation Management," and "Probationer Service" that incorporate the latest of the options to be described (Smith and Ball 1988).

Expansion of Pre-sentence Investigation Report Functions and Non-Traditional Reorganization

As professionalization of probation and parole continues, both probation and parole officers should be delegated responsibilities commensurate with their training and expertise (Fogel 1984). Although much of this responsibility will focus upon the preparation of pre-sentence investigation reports that can lay out for the court alternatives to incarceration, it is increasingly recognized that both the probation and parole officer must move away from the traditional counseling models toward the "community resource management" model (Cromwell et al. 1985; Duffee 1988). The latter requires the officer to integrate his or her efforts more closely with the community, drawing upon available resources that can be pulled together and tailored to fit the needs of a particular offender. One of the most important aspects of this process is that it demands the involvement of other public and other private agencies in the community. The probation and parole officer must become a catalyst in such development. It is crucial that this be accomplished given the tight fiscal restraints placed on both probation and parole agencies, who need all the help they can get (Cushman 1985).

By 1989, most of the probation officers in West Virginia had completed a new graduate course incorporating the community resource management approach. This course covered in some detail the role of the probation officer as a "broker" of community resources. As this option becomes more familiar across the state, it offers significant possibilities for some reduction of intake into institutional corrections.

Revision of Revocation Policies

Revision of revocation policies is, of course, a strategy that may be initiated formally by the judge or by shifts in the decision-making of the probation or parole officer on the scene. The greater the pressure on correctional systems, the more consideration the officer might give to some means of handling violations short of a revocation that sends the offender into such institutions (Studt 1978). Given current public attitudes, probation and parole officers will need support for any move in this direction.

Adoption of Differential Supervision Levels and Decrease of Supervision Length

Many offenders placed on probation and some on parole status require relatively little supervision. At the same time, there are others who are in need of closer supervision to reduce the risks of technical violations or further offenses that might result in incarceration (Petersilia et al. 1985). In recent years more and more probation and parole agencies have adopted some form of differential supervision designed to adjust surveillance, monitoring and assistance to better meet offender needs and to assess the relative risks posed by the offender's release into the community. Both differential supervision and reduction of length of supervision allow the officer to spend more time and energy on higher-risk offenders (Erwin and Bennett 1987).

Increased Use of Probation Contracts

Both probation and parole have often been criticized for setting vague conditions. However, the movement toward offenders' rights has forced officers to specify more clearly the exact conditions governing the probation or parole status, and an agreed-upon contract tends to protect all sides here (del Carmen 1982). Such contracts have several merits. They emphasize in writing the responsibility of the offender for holding up his or her side of the arrangement. They make almost impossible the resort to excuses by which the offender tends to rationalize any failures to abide by the conditions. And they insure that few offenders will be incarcerated because of misunderstandings on one side or the other or because of any possible bias on the part of the officer.

H. Gubernatorial Options for Intake Control

Throughout the United States many governors have begun to exert leadership in promoting some of the actions already described. Because the criminal justice system is really a congeries of loosely connected and often conflicting realms rather than an integrated "system," it often falls to the state's chief executive to draw things together. Several governors have appointed blue-ribbon commissions to study specific problems such as overcrowding (one of the best was Ohio's Governor's Committee on Prison Crowding 1986). Other governors have elected to form task forces charged with much broader long-range planning (one of the best was Oregon's Governor's Task Force on Corrections Planning 1988).

The various options considered under the heading of "legislative options" are really in many ways also gubernatorial options. It is often up to the governor to initiate legislative action, or to develop such action in concert with the legislature as then-Governor Caperton did with Senate Bill 389, the legislation clearing the way for replacement of the penitentiary at Moundsville. And when legislation is enacted, its implementation will depend to a considerable extent upon the position taken by the governor, as recent conditions in West Virginia indicate quite clearly.

Although the earlier discussion of correctional impact statements indicated the way in which some legislative bodies have proceeded, requiring such impact statements is also one option available to the governor. For example, this is an option available with respect to the major "privatization" issue now facing West Virginia, where the Batman corporation has proposed to relocate prisoners from the District of Columbia facility located in Lorton, Virginia to the rural counties of West Virginia. The advantage of such an impact statement option is the clear data base it could provide as justification for whatever decision seemed most proper. The disadvantage, of course, lies in the complications it might introduce into delicate political negotiations.

Perhaps the most important role for a governor is the impact that he or she can have by publicizing correctional issues and mobilizing public sentiment. Several state governors have made corrections a priority concern. In doing so, they have been able to generate public support for experimentation with many of the new options discussed throughout this monograph.

Pressures on correctional facilities have not only been aggravated by the trend toward incarceration of more offenders but also by the trend toward increased length of stay. Since 1976 at least 15 states have adopted determinate sentencing laws which fix the length of stay by law and block the use of early release strategies such as parole. During the same period, 37 states have passed mandatory minimum sentence laws for particular offenses, a policy that also places tight constraints on length of stay. And even when some discretion remains available, parole boards have tended to catch the "get tough" spirit of the times and have grown increasingly conservative in their release policies (Cory 1988).

Given sentences in the United States tend to be much more severe than in other industrialized societies, the enormous costs involved, and the fact that lengthy imprisonment may aggravate rather than ameliorate crime problems, there is a clear need to reconsider policies affecting length of stay. There are many options available to address the length of stay issue. Many states have undertaken efforts that are worth consideration by policymakers in West Virginia.

A. Legislative Options for Controlling Length of Stay

Some of the legislative options available to control length of stay include (1) revision of penal and sentencing codes, (2) revision of "good time" credit, (3) adoption of presumptive parole on first eligibility, (4) authorization of placement of pregnant offenders in the community, and (5) repeal of mandatory sentences (Harris 1984; Petersilia 1987; Cory; 1988). Although specific options such as those for dealing with pregnant offenders are not likely to be of appreciable help to less populated states such as West Virginia, most of the available options can have major impacts.

Revision of Penal and Sentencing Codes

Because the U.S. has among the lengthiest prison sentences in the world, reductions that place a state even a little closer to policies in most industrialized countries can reduce the prison population dramatically (Shane-Dubow et al. 1985). As costs escalate and pressure builds within correctional facilities, many states have begun to reconsider the movement toward harsher sentencing, either through reduction of sentence length or creation of sentencing commissions to set guidelines. For example, in 1981 the North Carolina legislature, which had moved earlier to establish presumptive sentences through a Fair Sentencing Act, acted to reduce their state's sentences by 25 percent for certain offense categories (Harris 1984).

Revision of "Good Time" Credits

Most states have in place policies based on statutory authority that reduce the amount of time served as a reward for good behavior, and many different means exist for providing such incentives. Michigan decided to reinstate its "good time" policy after having revoked it earlier. In 1978 a referendum issue called "Proposal B" eliminated "good time" in Michigan. Average length of stay for inmates then increased sharply, and riots broke out in 1981. A new "good time" bill was introduced into the Michigan Legislature in 1983. Although given little chance of success because of the requirement that it attain a two-thirds majority, circumstances had deteriorated so dramatically in Michigan prisons that the bill was adopted. The new law permits inmates to earn 10 days off their minimum sentences for each month of "good time" served (Cory 1988). In Tennessee, the legislature proceeded somewhat differently than in Michigan. Its existing policy had applied "good time" credits to an inmate's maximum sentence. In 1985 this was changed so that the credits applied to the inmate's minimum sentence as defined as their parole eligibility date (Cory 1988). Although traditionally "good time" has been granted for avoiding infractions, there is no reason why it cannot also be awarded for positive behavior, including participation in work, schooling and a host of other programs. Under this approach, the inmate is rewarded not only for "staying out of trouble," but also for accomplishing something positive.

Adoption of Presumptive Parole on First Eligibility

Presumptive parole is another interesting legislative approach to correctional problems. In New Jersey their parole law assumes that a prisoner will be released at first parole eligibility unless there is an indication by a preponderance of the evidence of a substantial likelihood that the prisoner will commit another crime if released (Harris 1984). This policy has the effect of shifting the burden from the inmate to the parole board. Under the usual circumstances, the presumption is that the inmate must show why he or she should be released. Under the "presumptive parole" policy, the parole board must show why the inmate should not be released. Adoption of such an option certainly goes against the traditional perspective on inmate rights, but fits well with the changing views of the past two decades and is at least worth consideration as an option in West Virginia.

Authorization to Place Pregnant Women Offenders in the Community

Although not likely to have much impact in less populated states, programs such as the "Shared Beginnings" project operating at the Federal Correctional Institution at Pleasanton, California show promise for providing some reduction of length of stay for selected offenders (Harris 1984). Under the "Shared Beginnings" project, pregnant women offenders are allowed to leave the institution to live in a community residential facility during the last several months of pregnancy and for several months after their babies are born. Even in states where there are too few eligible pregnant women offenders to make such a program worthwhile, the program serves as an example of possibilities that might be extended to other categories of offenders (Allen et al. 1985).

Repeal of Mandatory Sentences

As indicated earlier, the trend toward mandatory sentences has been one source of expanded prison populations in many states. While motives for the adoption of mandatory sentencing included a desire to reduce sentencing disparity and to increase both the length and the certainty of punishment, research has not shown either effect (Inciardi 1990). Prosecutors, judges and juries have found different means of circumventing any "mandatory" action when faced with an offender who does not seem to fit the arbitrary sentence set in advance. When legislators and the public realize that the disparity problem has not been resolved at all and that the chief effect has been to cost the state a great deal of money by increasing length of stay, it may be possible to move toward consideration of repeal.

B. Prosecution Options for Controlling Length of Stay

Prosecutors can have an influence on the length of prison stays through their sentencing recommendations to the judge and by endorsing combination penalties to decrease custodial stays (Harris 1984; Shane-Dubow et al 1985; Petersilia 1987). As is widely recognized, judges run some risks when they appear to side consistently with the defense against the approach of the prosecutor, who is seen as "representing the people." At the same time, defense attorneys are often forced to plea bargain a more lengthy term of incarceration than necessary to accommodate a prosecutor who adheres to the harshest sentencing policies. Because prosecutors have considerable influence, the position that they take on these issues will be of real importance.

Sentencing Recommendations

Just as the prosecutor concerned with prison conditions can consider somewhat different sentencing policies designed to reduce the number of offenders incarcerated unnecessarily, he or she can also consider recommendations reducing the length of stay once incarcerated. As with policies reducing prison intake, prosecutors may at times feel as if they are running counter to the public's "lock 'em up" sentiment. However, there is a greater likelihood of public support if it can be demonstrated that a long incarceration will place a heavy burden on the taxpayer.

Endorsement of Combination Penalties to Decrease Stays

Part of the problem of setting appropriate punishment lies in the fact that there are different and sometimes conflicting goals. There is the common desire for retribution, the urge to see appropriate retaliation against the wrongdoer and to see him or her "pay" for the crime. But there is also the goal of deterrence, the aim to prevent the offender from committing another offense and of others to follow his or her bad example. There is also the goal of rehabilitation, the desire to see the offender actually "learn the error of his ways."

Unfortunately, proponents of these different goals represent traditions that operate in different universes of discourse and who do not even speak the same language. While the first speaks the language of moralism and the second the language of rational utilitarianism, the third has tried to confine itself to a "scientific" rhetoric emphasizing "treatment" and "therapy." Throughout the debate, the problem has been that those involved have tended to take an absolutistic stance, as if defense of their own position depended on demolition of the others. The fact is that many sorts of penalties can be structured so as to represent different combinations of retribution, deterrence and rehabilitation stress (Ball 1979). The use of intermittent incarceration, of halfway houses, and of furloughs combined with restitution, community service and other sanctions may serve the sense of justice while balancing the various goals debated.

C. Defense Options for Controlling Length of Stay

The defense bar can have a significant impact not only the flow of offenders into state correctional facilities but also the time spent there once incarcerated. And the possible impact is by no means confined to effective plea bargaining or presentation of mitigating argument at trial. The defense bar can play an important role through such activities as monitoring of contracts affecting time served and representing offenders at parole hearings. More than two decades ago the American Bar Association (1968) issued a fairly extensive review of such "post-conviction remedies." Together, they can have an appreciable effect on the average length of stay in correctional facilities.

Monitoring of Contracts Affecting Time Served

If they can be put into place, the defense bar can make good use of contracts affecting time served. When such contracts are signed, they can commit the parties to mutual obligations. The correctional authorities can be committed to providing programs and avenues of progress through the correctional system. The inmates can be obligated to participate in the programs and to successfully complete certain agreed-upon performances. Although some will react negatively to this option because it may have the appearance of "bargaining" with the offender, it is has been used by institutions for juveniles for many years as a means of "differential treatment" (Ball 1974). Once the contracts are negotiated, the chief role of the defense involves monitoring to assure that programs are being provided as contracted so that there is ample provision for the inmate to demonstrate successful completion and attain early release.

Representation of Offenders in Parole Hearings

The offenders' rights movement has not only provided more protection during probation revocation proceedings, but it has also opened the door to greater legal representation at time of parole hearings (Cromwell et al. 1985; Early and Early 1986). Although for some the issue is largely one of due process, representation is one way of making an effort to see to it that those deserving of release are no longer held unnecessarily. In a time when parole boards may be less willing to run a risk without stronger arguments in favor of release, the defense bar can often cooperate by supplying some. In states such as West Virginia a strong and motivated defense bar can have a significant impact.

D. Judicial Options for Controlling Length of Stay

The policies of the judiciary obviously have a great deal to do with the length of time offenders remain imprisoned. While no one is likely to suggest that West Virginia judges should begin to hand down overly lenient sentences just to be sure that correctional facilities avoid legal challenges, there is much that the judiciary can consider in an effort to insure that they are not incarcerated for terms longer than required in the interests of justice (Inciardi 1990). Specific examples of judicial action that can make a difference include (1) issuing shorter sentences in some cases, (2) appellate review of sentences, and (3) use of intermediate or "shock" confinement (Harris 1984; Petersilia 1987; Cory 1988).

Shorter Sentences

Prison sentences in the U.S. are among the highest in the industrialized world, yet there is no real evidence that severity of sentence is a significant factor in deterrence (Blumstein et al. 1978). On the contrary, those who have studied the so-called "crime school" effect suggest that lengthy sentences actually tend to increase the likelihood of further crime once the offender is finally released. Time in prison serves to break the offender's ties to law abiding groups and strengthen ties to lawbreakers. Prison introduces the offender to criminal techniques as it generates hostility and encourages habits of violence (Duffee 1989; Allen and Simonsen 1989). Ideally, therefore, the most appropriate sentence may be that which is just long enough to satisfy the sense of justice and not a bit longer.

Appellate Review of Sentences

The role of appellate courts in reviewing sentencing has already been discussed, and it is applicable to length of stay as to the incarceration decision itself. Without trying to set judicial policy, it is worth noting that West Virginia is frequently cited as a state in which a conviction for auto theft results in more prison time than does a rape conviction in 16 other states (New York Times 1981). Although the use of sentencing guidelines, sentencing councils and other strategies for avoiding gross disparities in sentencing and arbitrarily harsh sentences are probably superior approaches to the intervention of an appellate court, the latter may prove appropriate on occasion.

Use of Intermittent or "Shock" Confinement

Different jurisdictions within the U.S. have developed policies by which the offender can be given intermittent sentences, serving time on weekends or at night only. Under the concept of "shock confinement" the offender is given what may be a deterrent "shock" of actual incarceration but with the incarceration replaced by some other sanction before it does too much damage. Some judges use "split sentences" or "shock probation" with a short incarceration followed by probation. Still others retain jurisdiction for a time by sentencing the offender to incarceration, then resentencing them to probation after a brief period. This tactic might be more aptly called "shock confinement," but it is usually designated instead as "shock probation". Wider use of these options could still provide some "retribution" while, at the same time significantly reduce the length of incarceration and the damage to family and occupational ties (Petersilia 1987).

E. Non-Criminal Justice Agency Options for Controlling Length of Stay

Most of the options available to both public and private agencies outside the criminal justice system to reduce prison intake also apply to reduction in length of stay. When such programs are available, it is often possible to release offenders who are mentally ill, retarded, or in need of special attention to facilities better equipped to deal with their problems. In a similar way, pre-sentence investigations conducted by outside agencies, even when they do indicate that incarceration is the appropriate decision, may suggest a shorter stay, and availability of community supervision by such agencies may permit early release. Thus, some of the organizations outside the criminal justice system that were cited earlier not only provide alternatives to incarceration which reduce prison intake but also handle offenders out on work release or parole. Under the heading of "privatization," the earlier monograph devotes an entire chapter to a discussion of these options (Ball 1989).

F. Correctional Options for Controlling Length of Stay

A wide variety of parole options are now in use across the nation to assure that a prisoner's time is not extended further than necessary. These include (1) adoption of contract parole, (2) adoption of parole guidelines, (3) provision for special screening for early release, (4) use of "mini parole," (5) speeding up the parole hearing process, and (6) revision of revocation policies (Studt 1978; Harris 1984). Because the pressures on correctional facilities are felt most keenly by the facilities themselves rather than by legislative bodies, prosecutors, defense attorneys, agencies outside the criminal justice system, or probation agencies, the tendency is often to turn to some of these parole options very early.

Adoption of Contract Parole

As indicated earlier, some correctional systems have moved toward the option of "contract parole," in which the inmate's release date is specified in advance as the date on which he or she completes certain programs and meets certain specified conditions. The contract amounts to a "guarantee," and as such it may offer considerable incentive to the inmate, who has the release date in his or her hands. Perhaps the chief problem with the option is simply that it demands that programs be in place so that the inmate has the opportunity to perform.

Adoption of Parole Guidelines

Paroling guidelines serve to inform all concerned of the operating policies of the paroling authorities (Cromwell et al. 1985). They also facilitate planning by making it possible to determine average time to be served by different categories of prisoners. The Federal Parole Commission has adopted such guidelines, as have paroling authorities in states such as Oregon (Harris 1984).

Provision for Special Screening for Early Release

West Virginia, Maryland and several other states have undertaken special reviews to determine which, if any, inmates could be considered for early release. Indeed, this is a policy that offers one of the few alternatives available in times when overcrowding becomes so severe that there is simply no space to house incoming inmates. The screening may be accomplished in several ways such as through empowering parole authorities to conduct the reviews or appointing members of the judiciary to sit for them. Such an expedient was employed as a result of the Nobles v Gregory (1983) decision dealing with conditions at the Huttonsville correctional facility.

Although screening for early release has the advantage of speed when speed is critical, the necessary rapidity of the process can convey a sense of expediency rather than justice. That is, an uninformed public can easily assume that those doing the screening have no concern for the "welfare of society" or the "rights of the victim" but are "siding with the inmates." The practice also puts the onus on those doing the screening while leaving the underlying problems unresolved.

Use of "Mini Parole"

Average length of incarceration can be reduced by different combinations of "intermediate punishments" (McCarthy 1987). Faced with severe problems of crowding, Mississippi developed and implemented a concept of "mini parole" (Harris 1984). The policy combines participation in work programs with parole supervision. Prisoners are considered for participation after serving one-fourth of their maximum sentences, (adjusted by up to nine days per month off for good behavior).

Speeding Up the Parole Hearing Process

One persistent problem with parole has to do with the long-standing notion that it is a "privilege" granted by the state at the will and convenience of the state (Cromwell et al. 1985). Because of this attitude, and because parole hearings take time and cost money, they are sometimes held less frequently than might be desirable in terms of controlling length of stay (Cory 1988). It is not uncommon for prisoners to spend extra time in prison waiting for the hearing that will release them. While this may not trouble those who stress that parole is a privilege, it does contribute to crowding and adds to the burden of correctional expense carried by the taxpayer.

As part of its attempt to deal with its correctional problems, Mississippi has initiated a special form of parole called "supervised earned release" under which a special review team is empowered to approve release to intensive supervision after an inmate has served one year on a nonviolent offense (Harris 1984). "Supervised earned release" requires frequent parole hearings, as does a new policy in North Carolina where the parole commission holds hearings every six months once an inmate has attained eligibility for consideration (Harris 1984). Such policies add to the number of parole hearings to be managed, but they save money in the long run and also serve to reduce tension within correctional facilities.

Revision of Revocation Policies

Many parole violations are of a "technical" nature involving failure to meet certain imposed conditions rather than actual commission of a new offense. It is questionable whether these should result in revocation of parole, and parole officers tend to "cut a little slack" for their parolees by ignoring some of the violations (Cromwell et al. 1985). If tighter control seems necessary, it may be possible to use some alternative to reimprisonment. One example is the "house arrest" option described earlier. It can be imposed on parolees as well as on probationers (Ball et al. 1988). Under this option, the parolee who must be sanctioned for rule violation can be confined to his or her own home rather than returned to prison.

G. Gubernatorial Options for Controlling Length of Stay

Although reduction of length of incarceration represents a politically sensitive use of gubernatorial power, governors do have an effect on length of stay through commutation or pardon. Commutation is considered an especially appropriate option for prisoners who are aged, disabled, retarded, or who have serious medical problems (Harris 1984). Such inmates can be released to parole supervision in the community. Where a pardon usually implies that significant doubts have arisen about guilt or that powerful extenuating circumstances have been discovered which are sufficient to negate not only the remainder of the sentence but the conviction itself, commutation implies only a willingness to reconsider the severity of a penalty in the light of changed circumstances.

In 1979, Maryland used commutation or clemency for the early release of 1,029 prisoners, and one survey in the early 1980s revealed that 10 states reported regular use of commutation or clemency as a release mechanism (Harris 1984). Still, it is obvious that such an approach puts a considerable political burden on the governor, who may be accused of favoritism, lack of concern about public safety, or worse. This being the case, it is likely that commutation or clemency will remain an option to be used either in dramatic cases involving favorable publicity or as something of a last resort when other options fail.

H. Department of Corrections Options for Controlling Length of Stay

Although some in the criminal justice system have only a few options available for influencing le