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Arkansas's prison population, and related expense, is exploding 

Will tough-on-crime conservatives truly embrace reform?

There are murders the basic facts of which survive one news cycle before they're relegated to just another statistic for all but the families of the victim and killer. Then there are what David Simon, the journalist-turned-TV-producer, once called "murders that matter," those that find their way into the media day after day and that politicians point to as a sign of a larger problem.

The killing of Forrest Abrams, an 18-year-old who was carjacked at a Little Rock convenience store and then shot in the back four times in May 2013, became a murder that mattered soon after Darrell Dennis was arrested for the crime. Dennis had a long criminal history and an extensive track record of flaunting the conditions of his parole. The list of his arrests and parole violations, from when he was released on parole from prison to four and a half years later when he was arrested for murder, goes on for more than three pages. Thanks to his almost canny ability to exploit the system and bureaucratic bungling on the part of the state parole system, he had managed to remain out of prison despite absconding from parole seven times, being arrested nine times and being charged with 21 new crimes (though all were nonviolent offenses).

The Arkansas Democrat-Gazette, which first revealed Dennis' history, published more than a dozen stories about him in the summer of 2013. It and other local media, with many politicians joining the chorus, cast a deficient parole system as an accessory to Abrams' murder. That Abrams was white and Dennis was black may have contributed to the uproar.

"[Forrest Abrams] apparently put himself in the wrong place at the wrong time," Democrat-Gazette columnist John Brummett wrote on June 18, 2013. "But you could make an argument that the state of Arkansas helped dump his murdered body at 11th and Woodrow ... ."

The consequences were swift. The state Board of Corrections enacted a sweeping series of policy changes meant to tighten parole. David Eberhard, the director of the Arkansas Department of Community Correction (ACC), which supervises parolees, retired abruptly. (Dennis was convicted and sentenced to life without parole in May of this year.)

click to enlarge DARRELL DENNIS: His arrest for the murder of Forrest Abrams sparked significant changes in the parole system.
  • DARRELL DENNIS: His arrest for the murder of Forrest Abrams sparked significant changes in the parole system.

By end of the year, another consequence became apparent: The number of people imprisoned by the Arkansas Department of Correction (ADC) had increased 17.7 percent in a year, which made it the fastest growing prison population in the country in 2013, more than seven times the national average.

The policy changes the Board of Corrections implemented in the wake of the Dennis revelations included requiring parole revocation hearings for all parolees merely charged — not convicted — of any felony or violent or sex-related misdemeanor, a policy possibly unique among states with parole. As a result of that and stricter controls on evading supervision, parole violators flooded back to prison, driving the number of those in state custody to an all-time high. By the end of 2013, ADC had taken in 4,005 parole violators — an increase of almost 2,300 from the previous year.

"I can't stress how substantial [of an increase] that is," Wendy Naro-Ware, a criminal justice analyst with JFA Associates of Colorado, told a state legislative task force on criminal justice last month. Every year for the last 20, she has analyzed and provided projections of the prison populations of Arkansas and other states. "I've never seen anything like it in my career," she said.

The trend has continued. In 2014, state prisons took in 4,490 violators. Based on further growth through the first quarter of 2015, some 5,700 violators could return to prison this year, according to Naro-Ware's projections.

Most people probably think of incarceration rates and crime rates as running in tandem, twin lines always climbing upward. But the crime rate in Arkansas and the country at large has been in decline since the early 1990s.

Still, because of tough-on-crime laws and the so-called War on Drugs, more people are behind bars in Arkansas than ever before: Arkansas's prison population has grown by 700 percent in 40 years. In 1975, there were 2,352 people incarcerated in state prisons. On July 10, there were 18,843 under ADC jurisdiction (that number included 2,677 who were housed in county jails because the ADC did not have room for them in its facilities). By 2025, according to projections from Naro-Ware, there will be more than 25,000 incarcerated in Arkansas prisons.

Because of reactionary policymaking in the wake of a sensational murder, Arkansas's prison population is expanding faster than nearly all other states'. Such growth is expensive. Even when adjusted for inflation, the average annual financial cost of incarcerating someone more than doubled over the last 40 years. In 2014, it cost an average of $23,000 to incarcerate someone, as much as one year's cost to attend the University of Arkansas.

***

Perhaps the remove of prison, how it vanishes lawbreakers from society, has made it easier for us not to question the humanity of caging our fellow citizens for long stretches of time. But there is little in the history of incarceration in Arkansas to commend our increasing reliance on it.

Like many attempts at social engineering gone awry, the idea of prison in the United States was born of good intentions. Instead of physically punishing lawbreakers — flogging, branding and whipping were common methods up until the early 19th century — reformers successfully argued that criminals should be confined in penitentiaries — places to be penitent, or made to feel regret for their crimes. But those redemptive notions soon collided with the reality of the cost of wholesale confinement and government's reluctance to bear the expense.

The solution, in Arkansas and elsewhere, was to put prisons or prisoners under the control of private contractors. In 1880, under private supervision, 20 percent of state inmates died. An Arkansas House of Representatives committee called "the contract system cruel, barbarous and inhuman and totally at variance with the civilization of the age," but, because of "the present embarrassed financial condition of the state," it made no recommendation for change.

The convict lease system remained in place in Arkansas until 1913, but conditions did not improve. A state House committee in 1941 reported that prisoners were beaten and tortured, insufficiently clothed and served nearly inedible food, but no steps were taken to improve conditions. A State Police finding from 1966 told of 14-hour workdays and the infamous Tucker Telephone, an old-fashioned crank telephone used in the Tucker State Prison Farm that had been modified to send an electric shock through electrodes attached to a prisoner's big toe and genitals.

Five years later, in 1971, a federal judge ruled that the entire Arkansas prison system violated the U.S. Constitution's prohibition against cruel and unusual punishment. It was the first time a state's entire prison system came under federal supervision. It remained under court oversight until 1982.

By the early 1970s, many criminologists had come to believe that prisons did not work and should be phased out. They found no evidence that sending more people to prison decreased crime. "The American correctional system today appears to offer minimum protection for the public and maximum harm to the offender," read a 1973 report from the National Advisory Commission on Criminal Justice Standards and Goals, which recommended a 10-year moratorium on new construction of prisons throughout the country and suggested that sentences for all first-time offenders, regardless of the crime, be capped at five years, and sentences for repeat offenders be no more than 25 years.

In 1972, fewer than 350,000 people were held in prisons and jails in the U.S. Today, there are more than 2.3 million. "Supporters of the moratorium effort can be forgiven for being so naïve," Marc Mauer writes in his book "Race to Incarcerate," "since the prison expansion that was about to take place was unprecedented in human history."

***

On a blisteringly hot Saturday afternoon in June, Lisa Wiley passed out watermelon and cold drinks and hot dogs to a crowd gathered under a pavilion at Burns Park in North Little Rock for a reunion of women who were incarcerated together in the ADC.

The mood was celebratory. There were balloons and streamers and hugs and laughter. Before long, Wiley led the crowd in a sing-along of "Happy Birthday." Then came raffle prizes, followed by a series of impromptu speeches. A young black woman with close-cropped hair tried to get the crowd to join in on a Sister Sledge song: "We are family, I got all my sisters with me," she halfheartedly chanted, before giving up on her singing voice.

"I'm so excited and glad to see everybody," the woman said. "I'm just glad we made it. It hasn't been easy for any of us ... . But just remember, whatever you're going through, you're going through, you're not here to stay."

A middle-aged woman with heavy makeup and a smoker's husk to her voice echoed something oft-repeated at the reunion: Only through God's grace can one be free.

"Forgiving yourself is the most important thing," she said, "because until you get rid of that, until you give that all to God, you're not going to make it. You're going to live in guilt and fear and that's what the devil wants us to do ... . But he ain't the winner; we know he's not the winner."

Jena Moorhead split time with Wiley playing emcee. The two became friends at the Wrightsville Unit and, after they got out, they and others started Sisters of Strength, S.O.S., a Christian nonprofit that had organized the reunion. S.O.S. is fundraising while it negotiates to purchase a building in Southwest Little Rock, where it hopes to open a transitional shelter for women leaving prison.

WORKING ON RE-ENTRY: Former inmates Lisa Wiley (left) and Jena Moorhead at a reunion of women incarcerated together in the ADC, sponsored by a nonprofit they co-founded that plans to open a transitional home for women leaving prison.
  • WORKING ON RE-ENTRY: Former inmates Lisa Wiley (left) and Jena Moorhead at a reunion of women incarcerated together in the ADC, sponsored by a nonprofit they co-founded that plans to open a transitional home for women leaving prison.

Like most of the women at the reunion, they had gone to prison on drug charges. From 2004 to 2014, the number of incarcerated women in ADC increased 64 percent, more than two and a half times the rate of newly incarcerated men over the same period.

Moorhead, 36, had been in prison twice for drugs: She went once for nine months and then, after three years out, a relapse landed her charges that sent her back for three years. By her own admission, Wiley, 44, spent more than 20 years addicted to crack cocaine doing whatever she needed to do to get her fix. By the time she was sentenced to prison in 2006 for drug-related crimes, her long record as a habitual offender netted her a 35-year term, of which she did six and a half years in prison. She'll be on parole until 2041.

Moorhead and Wiley credit God for their recovery and for guiding their lives, and acknowledge the corrosiveness of addiction; but as much as they talk about faith and personal accountability, they can't shake the sense that the criminal justice system is unfair.

"We hear so much about re-entry, re-entry," Moorhead said at the reunion. "But where are the resources, really?"

"I can't imagine how much it costs to incarcerate someone for six years," Wiley said. "Instead of sending them away and spending that much money to keep them locked up, why not spend that money to rehabilitate them? The prison system is not rehabilitation."

Wiley paroled out of prison in 2012 to her family. For her, that meant living near drug users. Within six months she had relapsed. She absconded from her parole for four months and was arrested in December 2012 on felony possession of drug paraphernalia, tampering with physical evidence and misdemeanor drug possession. Had her arrest happened seven months later, after the parole policy changes were put in place in the wake of the Dennis case, it would have automatically triggered a parole revocation hearing, which likely would have sent her back to prison.

Instead, Wiley was sent to Pulaski County Circuit Judge Mary McGowan's drug court.

"I loved it," Wiley said. "It helped me so much. For drug addicts and alcoholics, we need accountability. I got my mind right and started learning things about addiction: 'I'm not that person. I'm not a bad person, I just make bad choices.' "

She completed drug court last fall. She says she's been sober for two and a half years.

"I live in a beautiful home. I have a car. I have a job. My kids are back in my life. Those are things that I never had before. Until this time, I never had my own home. I never had my mind right where I can be the parent that my children deserve, where I can be the grandparent that my grandchildren deserve. My heart goes out to the people that don't have that opportunity or aren't getting the assistance they need when they get out."

That's why she and others in S.O.S. want to open a place for women to go after they leave prison. Already, mostly through Facebook and phone calls, Wiley helps direct people leaving prison to housing and employment opportunities.

"The most challenging thing for an addict is to get out and try to do things different without real avenues for how to do that," she said. "There's no re-entry program once you are out. To help you get a job. To get housing."

***

Sending people who abuse or sell drugs to prison in vast numbers is a relatively modern development. In 1980, according to the Sentencing Project, there were only 19,000 people in state prisons on drug charges. In 2013, there were 210,000.

What happened? One explanation is that crime spiked in the late 1960s and continued to rise throughout the '70s and '80s, when crack took hold of inner cities across America. The public demanded action, and conservatives and some liberals banded together to put more police on the streets and more lawbreakers behind bars for longer terms.

Beginning in 1977, the Arkansas legislature tightened parole laws and forced habitual offenders to serve longer sentences. In 1993, with prison numbers swelling and crime, if beginning to decline from record highs, still a hot-button issue, state lawmakers created the Department of Community Correction as a means of easing overcrowding through probation and parole, while again tightening habitual offender laws.

The ACC has grown in step with the ADC. As of May 31, there were around 29,500 people on probation, who had been directed away from incarceration as long as they fulfilled certain conditions. While probation numbers have remained steady, the state's parole population has quadrupled since 1997. Nearly 22,000 were in the system as of May 31. Indexed to population, Arkansas had the second highest number of people on parole in the country in 2013.

A sentencing grid put into effect in 1994 and still in use takes into account the seriousness of an offense and the offender's criminal history: A score below a certain level allows an inmate to serve one-third of his sentence in prison, minus any time knocked off for good behavior, and complete the rest on parole. A score above a certain level raises the threshold to half the sentence, minus good time. If an inmate receives no disciplinary infractions, he earns good time credit for every day he is incarcerated, which means he can serve as little as one-sixth or one-fourth of his sentence, depending on where his sentence falls on the grid.

But in the years that followed the introduction of the grid, lawmakers carved out exceptions to the sentencing levels, making certain crimes eligible for parole after an inmate served 70 percent of his sentence, creating two- and three-strikes laws that eliminated parole for certain repeat offenders and enacting laws that especially targeted methamphetamine charges for long sentences. Those changes massively expanded the state prison numbers. Since 1997, ADC inmates' average time served has risen from 30 months to almost 53 months.

"You declare a war on something, whether it's drugs or gangs or whatever, you're going to see that portion of population that is involved in that kind of activity flooding to the prison system," said Dr. Mary Parker, head of the Department of Criminal Justice at the University of Arkansas at Little Rock and a longtime member of the state Board of Corrections. "The more you criminalize, the larger your prison population grows.

"What happens when you do a major change ... is you pass a plan that's pretty well thought out and balanced, and then in successive legislative sessions people begin to tinker with it and they throw it out of balance. The 1993 legislation did not immediately cause the tremendous increase in the prison population." The tinkering did.

Parker said she was speaking only as a criminal justice professor, not as a member of the Board of Corrections.

***

In March 2011, two years before he announced his campaign for governor, Asa Hutchinson traveled to Canada to deliver a surprising message to a public safety committee of the country's parliament: He warned the Canadians not to repeat the United States' tough-on-crime mistakes. He talked about how federal mandatory minimum sentences for crack cocaine had disproportionately affected African Americans. He spoke of the need to treat problems of addiction with treatment rather than incarceration. He told the committee that, despite having only 5 percent of the world's population, the U.S. housed 23 percent of the world's prisoners (25 percent is estimate President Obama used last week when he became the first sitting president to visit inmates in a prison.). He lamented the cost of incarcerating so many people.

THE CONVERTED?: Despite his long tough-on-crime resume, Gov. Hutchinson now says we should reform the criminal justice system. But will he push far enough? - BRIAN CHILSON
  • Brian Chilson
  • THE CONVERTED?: Despite his long tough-on-crime resume, Gov. Hutchinson now says we should reform the criminal justice system. But will he push far enough?

Hutchinson spoke with experience. He had a lengthy resume of creating, enforcing and expanding tough-on-crime laws. He was picked by President Reagan to be a federal prosecutor in the Western District of Arkansas in 1982, the same year the president announced his War on Drugs. While he was in Congress in the late-'90s, Hutchinson resisted calls to do away with harsh mandatory minimum sentences for drug offenders, before leaving to run the Drug Enforcement Agency and serve as an undersecretary in Homeland Security in the George W. Bush administration.

Today, Gov. Hutchinson deflects the idea that his thinking on criminal justice represents a conversion.

"I think that's part of making the system of justice work properly," he said in an interview. "You have to consistently re-evaluate it and make adjustments that are needed to reflect fairness."

The most obvious outward sign of Hutchinson's re-evaluating the system came in 2010, when he was one of the first signatories to Right on Crime, a conservative initiative to reconsider incarceration policies. The group began in the Lone Star State, where the Texas Public Policy Foundation, a conservative think tank based in Austin, helped convert Gov. Rick Perry into a believer in prison reform. In 2007, Perry supported state legislators' decision to cancel plans to expand the state's prisons, instead using the savings to support programs that diverted drug offenders into treatment.

The early success of those reforms inspired the Texas Public Policy Foundation to spin off a nationally focused prison reform advocacy arm in 2010. Right on Crime began as a statement of principles: The criminal justice system should be about transparency and accountability, prioritizing victims' rights, reforming the willing and cost-effectiveness. Some 70 conservatives signed the statement, including Hutchinson, Jeb Bush, Newt Gingrich, Grover Norquist and Ralph Reed.

The conservative embrace of criminal justice reform has continued to pick up momentum. For perhaps the first time ever, candidates running for the Republican presidential nomination have been talking about keeping people out of prison. In 2012, the American Legislative Exchange Council (ALEC), a right-wing coalition of state lawmakers (including many from Arkansas), disbanded a public safety task force that had championed harsh sentencing laws and stand-your-ground legislation in favor of a new project aimed at expanding community corrections efforts and combating "overcriminalization." The libertarian billionaires Charles and David Koch, who bankroll ALEC, have begun a multimillion-dollar justice reform effort as part of an unlikely coalition that includes the Center for American Progress, the American Civil Liberties Union and the Tea Party-oriented FreedomWorks.

Meanwhile, change is already happening. Under the leadership of Republican governors, conservative states with long law-and-order traditions such as Georgia, South Carolina, Kentucky and Mississippi have enacted major laws aimed at slowing prison growth and helping offenders re-enter society, some of which have already made an impact.

"Texas closed three prisons in the last several years," said Sen. Jeremy Hutchinson (R-Little Rock), the governor's nephew and a champion for conservative criminal justice reforms in the state legislature. "They're not soft on crime."

***

LAGGING: Arkansas is 10 to 15 years behind other states with regard to criminal justice reform, Sen. Jeremy Hutchinson says. - BRIAN CHILSON
  • Brian Chilson
  • LAGGING: Arkansas is 10 to 15 years behind other states with regard to criminal justice reform, Sen. Jeremy Hutchinson says.

Last July, Benny Magness, the chair of the state Board of Corrections, told a legislative panel that the state needed to build a new $100 million prison that would hold 1,000 beds and cost around $25 million a year to run.

Instead of funding the new construction, the legislature overwhelmingly passed an omnibus bill it called, perhaps hopefully, the Criminal Justice Reform Act. To be sure, the package contained many measures for reformers of all stripes to cheer, or at least nod approvingly toward: It created access points at nearly every stop along the way for offenders in the ACC or the ADC to apply for Medicaid, since a healthier population is less crime-prone. It established task forces to consider a wide variety of criminal justice innovations, including expanding and standardizing specialty courts, where the likes of addicts, veterans or the mentally ill who commit crimes might be diverted away from prison.

The legislature also authorized funding for 500 re-entry beds, where soon-to-be paroled ADC inmates can acclimate to life outside of prison. The ACC has an RFQ out for private contractors to operate the re-entry centers, but no contracts have been signed. Once they're available, beds will be turned over to new inmates every six months, so in a year, they could serve 1,000 soon-to-be paroled offenders, said Dina Tyler, a spokesperson for the ACC. The state could probably use 2,000 reentry beds, but 500 would work as a start, Tyler said.

The General Assembly also authorized the ACC to hire 47 new parole officers. Caseloads, depending on the area, range to as many as 118 per officer, Tyler said. Forty-seven officers over two years won't make much of a dent in that high ratio.

The ADC is also focusing on helping inmates successfully transition into the free world. A legislative appropriation covered the cost of the first two phases of construction of the Ester Unit in Pine Bluff, a new ADC re-entry center. Already, 183 inmates reside there. By early next year, the ADC anticipates being able to house 356 prisoners, all of whom will be within 18 months of parole. The goal, ADC spokesperson Cathy Frye said, is to get them ready for the free world through job training and counseling. "When people get out, we need to keep them out," she said.

But for every two steps forward, the legislature took at least one step back. It made residential burglary a violent crime as far as habitual offender sentencing goes, which means two convictions for residential burglary* without a weapon would net someone with an otherwise clean record at least five years without parole and a third conviction could earn someone at least 30 years without parole. Life for parolees is already hard — ex-cons routinely have difficulty securing housing and finding work (Gov. Hutchinson said their unemployment rate in Arkansas is 47 percent), on top of the hurdles of adjusting to a world that may have changed substantially since they left for prison. Now, because of the new crime law, they and probationers are subject to search by any law enforcement officer without a warrant. The new act did not reduce sentences for any crimes. Meanwhile, in March, Gov. Hutchinson used $2.65 million in Rainy Day funds to transfer 281 inmates to a private facility in Bowie, Texas. The ADC plans to ask for $2 million in funding to extend the contract through June 30, 2016, Frye said.

Asked to comment on the crime package, Marc Levin, policy director for Right on Crime, said, "Clearly, significant work needs to be done in Arkansas's adult justice system to implement policies that will improve public safety, reduce recidivism and save tax dollars."

In other words: Keep trying, Arkansas Republicans.

Sen. Hutchinson carried the crime package for his uncle, the governor, as lead sponsor. He admitted that Arkansas was 10 to 15 years behind other states with regard to criminal justice reform. Catching up should not involve the same build-more-beds philosophy, he said.

"Not only do I not think we can afford [a new $100 million prison], I don't think it's good policy," he said. "If we get our probation and parole system working correctly, I don't think we'd need a new prison. ... We'll never build enough prison space to lock up every bad person, nor should we."

The governor, in customary form, was more circumspect about the future.

"It's too early to tell," he said of whether a new prison will be required.

"I have an analogy I use a lot," said the ACC's Tyler, who has worked in and around prisons for two decades. "If you go in your bathroom and the water is on your sink and the sink is overflowing, you have three choices: You can either get a bigger sink, get a bigger drain or affect the flow of the water. That's it. Same thing with us: Get more institutions, let more people go or lessen the flow in the first place. That's it."

Those three options come with high costs, either in money or political capital.

Gov. Hutchinson has apparently decided to ask God for a fourth option. He recently announced a faith-based summit scheduled for August to discuss solutions for providing more re-entry services to felons on parole as well as ways to aid the growing number of children in state foster care.

"When you look at the resources of the state, the capacity of the state, you can't get the job done ... simply as a state government," Hutchinson said at a news conference announcing the event. "We need to enlist partners to accomplish this mission. ... We need to enlist the help of the faith community, the nonprofit community."

In other words: Together with the Republican-controlled legislature, I decided to give a massive amount of tax revenue back to wealthy and middle-class Arkansans, leaving us unable to pay for what we need to get the job done.

Meanwhile, as enlightened as some Arkansas politicians have become about criminal justice, reform is not without risk. In 2011, aided by the Pew Center on the States, the legislature passed a sweeping reform package aimed at curbing prison growth. It reduced sentences for some drug and theft crimes and added several measures to expand parole and probation. As a result, Arkansas's prison population dropped in 2011 and again in 2012.

Tyler said that decline was misleading as too many parolees and probationers who should have been revoked were not.

But Sen. Joyce Elliott (D-Little Rock), a longtime crime reform advocate, said the 2011 reform policies were not sufficiently funded.

"We never hired enough parole officers for the policy to be successful. If you don't fund, it's going to be tough to make it work. Then something catastrophic will happen, and we will react in a way that sets us up down the road for filling the prisons as if everyone is as bad a guy as that person. We make policy based on the very worst, almost singular instances."

Sen. Hutchinson acknowledged the difficulty of getting politicians to embrace reform.

"The default position [for Arkansas politicians] has been, 'I don't want to put my political future in the hands of felons. It's far safer to lock everybody up,' " Sen. Hutchinson said. "But we're not going to allow those bad feelings and fears to dictate public policy. We're going to not be reactionary."

The study groups created by the new crime omnibus law are expected to deliver their findings before the next general session of the legislature in 2017.

*A previous version of this story mistakenly used residential burglary and breaking and entering synonymously. They are separate charges. 
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