HB 2869 and the Costs of Incarceration

By Jay Perry

A previously discussed proposed bill in the Tennessee legislature related to gangs moved on to the Judiciary Committee on Wednesday.   The bill (HB 2869/SB 3004) however was recently estimated by the Fiscal Review Committee of having a financial impact of $1.92 million over 10 years.  The Fiscal Note contains a few enlightening projections that merit review.

The Note estimates that the cost of incarceration per offender in the Tennessee Department of Corrections (TDOC) is $61.36 per day.  For the sake of comparison, an eight hour day of work payed at minimum wage would cost $58 per day.  The proposed bill would create an E felony which is statistically served in 1.28 years post-conviction (the maximum is 2 years).  Thus, each conviction for the proposed gang offense would cost a projected $28,687.

In making the estimations the Committee estimated that the proposed additional gang offense would only be added to three current crimes: aggravated assault, robbery, and aggravated burglary.  They estimate that for those offense, three (3) percent involves gang activity.  It is unclear why they chose only these three offenses for the estimates, most notably they did not include aggravated robbery.

The Note also indicates that 25.5% of offenders will re-offend within one year of their release.  A recent Pew Center study calculated the national recidivism rate (3 year return to prison rate) at 43.3% based on 2004 data.  Another recent study calculated that approximately 2.7% of all adults in the United States of America have served a prison sentence (state or federal).  The number of adults with "prison experience" was 5.6  million which is the approximate population of Denmark.  According to U.S. Bureau of Justice statistics, at the end of 2010 2,266,800 adults were incarcerated with another 4,933,667 on probation or parole.  This is the highest incarceration rate of any nation in the world.

Other Bureau of Justice statistics also demonstrate that the cost of the criminal justice system is increasing at a rapid rate.  From 1982-2006 for example, the direct expenditures spent on police rose 420%.  The increase is 660% for corrections and 503% on judicial costs over the same time period.  

It remains to be whether what effect the above mentioned budgetary calculations will have on passage of HB 2869/SB 3004.  More importantly though, it remains to be seen whether the State of Tennessee or the U.S. as a whole can continue to bear the costs of such a continued high rate of incarceration.

United States Supreme Court Orders Release of Thousands of California Inmates

• Brown v. Plata

The Supreme Court, in a 5 to 4 decision, issued a sure to be controversial holding regarding the prison conditions in California state prisons. Justice Kennedy, writing for the majority, ordered the release of approximately 32,000 inmates from California prisons.

The constitutional issue is whether prison conditions are so bad as to violate the Eighth Amendment protection against cruel and unusual punishment. Evidence was presented to the Court regarding the prison conditions, specifically those involving inmate access to physical and mental health care. The Court goes into gruesome detail when it describes the overcrowding, noting, for instance, a gymnasium that houses over 500 hundred inmates at a time. Justice Kennedy even attaches to the opinion three black and white pictures of various locations in California prisons. The Court came to the conclusion that the constitutional violations were caused by overcrowding so the only reasonable solution is to require California to release a significant number of prisoners.

The dissenting opinions (separate ones by Scalia and Alito) address the obvious drawback to the holding: the potential increase in crime. Justice Alito stated, "I feel that today's decision, like prior prison release orders, will lead to a grim roster of victims."

Given the controversial holding, what will be interesting to see is how the State of California will decide whom to release from prison. What crimes or persons are insignificant enough to warrant an early release? Where this line will be drawn has yet to be determined.