Tough on Crime, Smart on Crime
(The following President’s column appeared in the December 2011 issue of the Georgia Bar Journal.)
My first job after law school was as an assistant district attorney in the small town where I had graduated from high school. I was 26 but in blue jeans rather than a suit could have passed for a decade younger. We covered four mostly rural counties. Abe Lincoln might have recognized the circuit-riding aspect of that life, but for the fact that I traveled by ’73 Dodge Dart instead of by horse.
The veteran DA was in his last term. Once when driving between county seats with the car windows wide open, he broke into an enthusiastic rendition of Johnny Paycheck’s then-new hit, “Take This Job and Shove It.” In the office where I was based, we had one desk; the ADA who got to the office first in the morning got to sit behind it. The two greenhorn ADA’s in our office worked almost autonomously, with little supervision other than the sheriff, secretaries who baked many cakes to flesh out my then-skinny frame, the clerk of superior court who saved me from disaster more than once and judges who would not let us mess up too much.
It was grand experience for a budding trial lawyer as we were constantly trying cases. The month after joining the office, I assisted in a death penalty trial for the rape and murder of a young girl. After years of appeals the defendant’s death sentence was reduced to life imprisonment and he remains in the prison system today, 34 years later.
A couple of weeks later, I tried my first solo jury trial on 30 minutes notice. Suspecting nothing, I was sitting with the DA on a Monday morning at the far end of the circuit in a courtroom full of folks who had been summoned for jury duty. He announced the first case for trial and the clerk called the first 12 jurors into the box. Without warning my boss handed me a file I had never seen on a case of robbery by sudden snatching. He said, “I’ll strike the jury, you talk with the witnesses outside and be ready to try the case in 30 minutes.” Thrown into the pool with no preparation, it was sink or swim. With no time to worry and obsess about it, I interviewed the purse snatching victim and her husband, figured out that the keys in her purse at trial matched the charred keys found in the wood stove at the defendant’s residence and eked out a conviction despite my lack of experience and preparation.
Other trials came in rapid succession and my confidence grew month by month. The fact that a prosecutor with discretion as to which cases to try, with a duty to prosecute the guilty and release the innocent, really ought to win way more than 90 percent of the time, so my win rate was not due to any genius on my part, escaped my notice. Confidence soon evolved into cockiness. I relished the opportunity to strut into a courtroom toting an unloaded machine gun. To a hammer everything is a nail, and I was a brand new hammer. I began to see almost any citizen accused of a crime as less than human, and went along with a local practice of forcing lawyers from out of town to sit and wait all week for their cases to be reached rather than placing them on call. Reflecting upon that experience decades later, I recognize that some of my decisions were based more upon ambition, testosterone and a desire to prove myself tough than upon mature judgment.
After about a year I began to see that perhaps 85 percent of the people I was prosecuting probably would not have been in trouble but for alcohol, drugs and ignorance. Another 15 percent or so were primarily mean. There was, of course, a good deal of overlap between those groups. But lacking the concept of drug and DUI courts and any coordination with addiction or mental health counseling resources, we had no solution but prosecution, incarceration and probation. If timing and politics had been just a little different, I might have become a career prosecutor. But in the 1978 election my desk mate lost a race to succeed our employer as district attorney, and we both left the office in the transition. Over the next three years I handled a lot of indigent criminal defense cases under the old system of random appointment. Eager for courtroom experience, I often went to trial and got lucky, but soon learned that dedicated work on appointed cases did not pay my bills. When an offer came to join an insurance defense firm in Atlantaat a time when I was 30, broke and single in a small townI moved on and never looked back.
Thirty years later, I was installed as State Bar president and Gov. Nathan Deal appointed me to the newly created Special Council on Criminal Justice Reform. At the bill signing ceremony at a drug court session in his son’s superior court courtroom in Gainesville, I was convinced that Gov. Deal is absolutely sincere about salvaging lives of non-violent offenders caught in the cycle of addiction, not merely saving money in the state budget. At the same time, the Bar role thrust me into dealing with issues regarding the statewide indigent defense system and the proposed Juvenile Code, attempting to quickly get up to speed on areas of law I had not touched in three decades.
Being thrown once again into the deep end of a pool, this time a pool of criminology research, I appointed a State Bar Committee on Criminal Justice Reform. It is chaired by Cobb Judicial Circuit District Attorney Pat Head and comprised of a stellar group of prosecutors, judges and defense lawyers with a wealth of “boots on the ground” experience. I hope that our blue ribbon Bar committee will play a significant role as the state moves forward with criminal justice reform over the next few years.
The Special Council on Criminal Justice Reform included Chief Justice Hunstein, trial judges with intense criminal law experience, Judicial Qualifications Commission member Linda Evans, a bipartisan group of dedicated legislators, one district attorney and me. It was formed to address the budget-busting fact that 1 in 70 adults in Georgia were behind bars at the end of 2007, compared to the national incarceration rate of 1 in 100 adults, and Georgia had the fourth highest incarceration rate in the country. Moreover, 1 in 13 Georgians are under some form of corrections supervision, the highest rate in the nation. Young African-American males today are more likely to go to prison than to college. People caught in a cycle of addiction, crime and unemployment are as a practical matter unavailable for productive employment and responsible parenting of children they help bring into the world. Those who complete long mandatory sentences emerge with pocket change, a bus ticket and no marketable skills other than those they learn from other inmates. The vicious cycle of recidivism continues.
The top leadership of state government laid out the following goals for the Council: (1) address the growth of the state’s prison population, contain corrections costs and increase efficiencies and effectiveness that result in better offender management; (2) improve public safety by reinvesting a portion of the savings into strategies that reduce crime and recidivism; and (3) hold offenders accountable by strengthening community-based supervision, sanctions and services.
This council worked through the summer and fall. We received technical assistance from a strong team of state public safety and corrections officials and from the Public Safety Performance Project of the Pew Center on the States (Pew) as part of the state’s selection to participate in the Justice Reinvestment Initiative of the U.S. Department of Justice. Pew has provided assistance to more than a dozen states by analyzing data to identify the drivers of prison growth and by developing research-based, fiscally sound policy options to protect public safety, hold offenders accountable and contain corrections costs. Pew’s team was assisted by the Crime and Justice Institute and Applied Research Services, Inc.
Council members divided into three working groups to develop specific recommendations in three areas: sentencing and prison admissions; prison length-of-stay and parole; and community supervision. In November, the Council released its findings and recommendations, with the underlying goal of protecting and improving public safety, in a report to the legislature and other state leadership.
Here’s part of what we found. Supervising the nearly half a million people under correctional control in Georgia costs state taxpayers more than $1 billion dollars per year. Despite this tremendous financial commitment, our recidivism rates remain stubbornly high. In short, we are not achieving public safety returns sufficient to justify this level of public expenditure. In these hard times, we must ensure that our resources are being used in the most effective way possible to keep our communities safe. Georgia’s prison population has grown 35 percent over the past decade. If we do nothing, it is projected to grow an additional 8 percent during the next five years, bringing the total to nearly 60,000 inmates and forcing the state to spend an additional $264 million on corrections. What accounts for this extraordinary growth? It cannot be chalked up simply to the violent crime rate, which has declined 20 percent over the past decade. Rather, it is the result of policy decisions that have sent more people to prison and held them there for longer.
Whatever else we do, we must remember prisons are important in the fight against crime. As a prosecutor long ago, I looked into the heart of darkness, the evil that drives the most hard-core of criminals. There is no doubt that serious violent offenders need to be locked up for a long time to protect law-abiding citizens, and the money we spend to put them behind bars is money well spent. However, approximately two-thirds of those admitted to prison in Georgia have been convicted of non-violent offenses and more than half have never before been to prison. The percentage of sentence served for offenders in prison has more than doubled over the past 20 years. Turning even a small percentage of non-violent offenders from tax burdens in prison to tax payers in community based corrections, and reinvestment of a portion of the cost of prison into programs that have proven effective elsewhere, could help both public safety and public budgets.
It is not just the prison population that has grown. Since 2000, Georgia’s felony probation population has grown 22 percent and the parole population has grown 9 percent. With an overwhelming majority of its corrections budget allocated to prisons, Georgia spends relatively few resources on community corrections, leaving agencies strained in their efforts to effectively supervise offenders in the community. For example, probation officers in Georgia have an average caseload of about 200, and the state spends just over $1 per day supervising each probationer. In addition, there are limited program options to address the significant substance abuse and mental health problems among this population and long lines for the ones that do exist. We need look no farther than our high recidivism rates to see that these inadequate community supervision options are not enough.
Ensuring that Georgia’s community corrections agencies have the resources and authority to supervise this growing number of offenders effectively is essential to public safety. If we adopt proven strategies to improve their success rateby creating incentives for success and strengthening their supervision, sanctions and serviceswe all win, with less crime, fewer victims, more accountability and reduced costs of punishment. The council developed a number of recommendations to meet this objective: expanding drug, DUI, mental health and veterans accountability courts that have been proven to effectively improve public safety; expanding treatment options for those offenders with substance abuse and mental health issues; implementing programs and practices such as cognitive interventions that research has proven are effective at reducing recidivism; and introducing earned compliance credits to encourage offenders to comply with the conditions of their supervision and to participate in programs while under supervision. We agreed on reclassifying minor traffic offenses as administrative rather than criminal, and adjusting the felony threshold on property offenses to account for 30 years of inflation. These are just a few of the recommendations that will focus not just on saving money, but also on protecting families and communities.
While the council enjoyed broad consensus on a number of issues, including accountability courts, reclassification of some offenses and more community-based corrections, we were not able to make a unanimous recommendation on modifications of the mandatory minimum sentences that cumulatively drive a portion of the increase in Georgia prison populations. In the 1990s, Georgia was one of a number of states that reacted to a perception of softness among judges and parole boards by enacting a set of mandatory minimum sentences that sounded good politically but in application to individual cases could be unfair because they ignore the infinite variations of facts unique to each case.
One view is that more sentencing discretion should be restored to judges, possibly through a “safety valve” procedure requiring findings of fact and conclusions of law on a list of factors that would justify departure from prescribed sentence ranges. Such a “safety valve” might include the right of the district attorney to appeal from a sentencing decision. A variety of such procedures are employed to varying degrees in federal courts and some other states that have mandatory minimum sentencing laws. A second view is that mandatory minimums are important due to the perception that some judges would be reluctant to impose adequate sentences on dangerous offenders and that district attorneys who are familiar with the cases and the offenders should be able to control sentencing through exercise of discretion as to charging greater or lesser offenses. A third approach is to modify mandatory minimum sentences by attempting to carve out identifiable inequities without restoring broader sentencing discretion to judges, partly out of concern that too much discretion would be open to favoritism based in part upon factors of race, class, politics and other considerations.
The federal system led the way with mandatory minimum sentences for drug offenses and defendants with prior felony convictions. In October, after our council had essentially completed its work, the bipartisan United States Sentencing Commission concluded its study on the subject with recommendations that mandatory minimum penalties should “(1) not be excessively severe, (2) be narrowly tailored to apply only to those offenders who warrant such punishment, . . . (3) be applied consistently,” and that Congress should consider whether a statutory ‘safety valve’ mechanism similar to the one available for certain drug trafficking offenders . . . may be appropriately tailored for low-level, non-violent offenders convicted of other offenses.” It is above the pay grade of a State Bar president to say what the public policy of Georgia should be on this point.
Georgia’s public safety challenges are pressing but not unique. Across the nation, states are struggling with the frustrating reality of high prison costs and high recidivism. Several of our neighbors, including North Carolina, South Carolina, Arkansas, Kansas and Texas, are employing innovative strategies similar to those our council has considered, and demonstrating that it is possible to be both tough and smart on crime. Even very conservative states like Texas have found much success in their reform measures coordinated similar to those we studied, so we now have data from other states that suggests with fair confidence how evidence based practices are working to protect public safety and save money.
Georgia has an opportunity to join these and other states in passing legislation to improve public safety, hold offenders accountable, control corrections costs and turn tax burdens into tax payers. It is my hope that the hard work and leadership of the council, our governor and the legislature, with assistance from the State Bar, will lead to significant reforms here in Georgia. We can afford no less.
Kenneth L. Shigley is the president of the State Bar of Georgia and can be reached at firstname.lastname@example.org.
The State Bar Committee on Criminal Justice Reform includes: Patrick H. Head, chairperson, district attorney, Cobb Judicial Circuit, Marietta; Wilmer “Buddy” Parker III, vice chairperson, M. J. “Buddy” Parker, Atlanta; Markette Baker, solicitor general, Troup County, LaGrange; Mary Margaret Brannen, Georgia Public Policy Foundation, Atlanta; Fredric D. Bright, district attorney, Ocmulgee Circuit, Milledgeville; David Lee Cannon Jr., solicitor general, Cherokee County, Canton; Robert J. Castellani, senior superior court judge, DeKalb County; Brenda S. Hill Cole, judge, State Court of Fulton County, Atlanta; J. Michael Cranford, past chair, Criminal Law Section and past president, Georgia Association of Criminal Defense Lawyers, Macon; Michael Joseph Cuccaro, Administrative Office of the Courts, Atlanta; Gregory W. Edwards, district attorney, Dougherty Judicial Circuit, Albany; Jon Vincent Forehand, Allen & Forehand, Moultrie; Brian Keith Fortner, solicitor general, Douglas County, Douglasville; William A. Foster III, senior superior court judge, Paulding Judicial Circuit, Dallas; Jason William Hammer, Carlock, Copeland & Stair, LLP, Atlanta; C. LaTain Kell, superior court judge, Cobb Judicial Circuit, Marietta; Seth D. Kirschenbaum, Davis, Zipperman, Kirschenbaum & Lotito, Atlanta; Christine Anne Koehler, Koehler & Riddick, LLC, Lawrenceville; John Richard Martin, Martin Bros., PC, Atlanta; Steven J. Messinger, chief assistant district attorney, Paulding Judicial Circuit, Dallas; Bonnie Chessher Oliver, superior court judge, Northeastern Judicial Circuit, Gainesville; Claudia Susan Saari, chief public defender, Stone Mountain Judicial Circuit, Decatur; Dennis C. Sanders, district attorney, Toombs Judicial Circuit, Thomson; Robert Frank Schnatmeier Jr., Gentry Smith Dettmering Morgan & Schnatmeier LLP, Marietta; Carmen D. Smith, solicitor general, Fulton County, Atlanta; Hon. D. Jay Stewart, superior court judge, Atlantic Judicial Circuit, Claxton; Frank C. Winn, Winn & Winn, Douglasville; Rebecca Ashley Wright, district attorney, Augusta Judicial Circuit, Augusta. Advisors: Ronald L. Carlson, University of Georgia School of Law; Sen. Jason Carter, District 42, Decatur; Russell Dean Covey, Georgia State University School of Law; Sen. William S. Cowsert, District 46, Athens; Stan Gunter, Prosecuting Attorneys Council; Sen. William Hamrick III, District 30, Carrollton; Sen. Josh McKoon, District 29, Columbus; Rep. Wendell K. Willard, District 49, Sandy Springs; Karen Lisa Worthington, Karen Worthington Consulting.
Gubernatorial Appointees: Hon. Todd Markle (chair and designee of the governor) superior court judge, Atlanta Judicial Circuit; Linda Evans, member, Judicial Qualifications Commission; David McDade, district attorney, Douglas County ; Ken Shigley, president, State Bar of Georgia; Senate Appointees: Sen. John Crosby, District 13, Tifton; Sen. Bill Hamrick, District 30, Carrollton; Sen. Ronald Ramsey, District 43, Decatur; House Appointees: Rep. Mary Margaret Oliver, District 83, Decatur; Rep. Jay Powell, District 171, Camilla; Rep. Willie Talton, District 145, Warner Robins; Judicial Branch Appointees: Carol W. Hunstein, chief justice, Supreme Court of Georgia; Michael P. Boggs, superior court judge, Waycross Judicial Circuit; Ural Glanville, superior court judge, Atlanta Judicial Circuit.
Letter to the Department of Justice and the Pew Center on the States dated May 27, 2011, signed by Gov. Nathan Deal, Chief Justice Carol W. Hunstein, Lt. Gov. Casey Cagle and Speaker David Ralston.
United States Sentencing Commission, Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (October 2011), available at http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Mandatory_Minimum_Penalties/20111031_RtC_Mandatory_Minimum.cfm (last visited Nov. 14, 2011).