Overcrowded Prisons


1. Introduction

Ensuring public safety is one of the most fundamental functions of government. Several important debates about how best to protect public safety are occurring in the Legislature this year. The stimulus for these debates, in large part, is the growing problem of overcrowding in our prisons and the significant costs that go with it.

In this brief we provide information and perspectives that will help you judge which proposals you think best promote public safety in Idaho. The brief particularly examines the most cost effective ways of protecting our safety given limited resources.

Two fundamental means of protecting public safety are to impose limits on individuals who have harmed us, our property, or our communities through probation and parole or through incarceration. At their most effective, these punishments protect public safety in three ways. First, the threat of punishment deters individuals from committing crimes in the first place. Second, punishment, particularly incarceration, keeps individuals from committing more crimes during the term of their sentence. Third, these punishments are intended to correct or reform those individuals so that they won’t commit crimes again once the punishment is over.

Soaring crime rates in the 1960’s and 1970’s produced an increasing emphasis on incarceration, particularly on its functions of deterrence and restraining further crime. “Tough on crime” reforms, enacted from the 1970s through the present, mean that more individuals have been incarcerated or placed on probation, and that more of these individuals have served longer sentences, than ever before. In the last 35 years the number of adults in prison in the U.S. has grown 700%. We now incarcerate more individuals than any other nation (China, with its vastly larger population, comes in second) and at a higher rate than any other nation (Russia and Cuba come in second and third).

Idaho has enacted its own tough on crime reforms and our prison population has grown even faster than the national average with the number of adults in prison increasing by 700% since 1980. As Governor Otter reported in his state of the state address, one in 34 Idaho adult males is now in prison or on probation or parole.

Research has confirmed that higher rates of incarceration and longer sentences have improved public safety. However, research also indicates that the public safety benefits of increasing incarceration has reached a point of diminishing returns. While studies demonstrate that for every 10% increase in incarceration, we’ve realized between a 2% and 4% decrease in crime, recent research reviews conclude that “analysts are nearly unanimous in their conclusion that continued growth in incarceration will prevent considerably fewer, if any, crimes than past increases did and will cost taxpayers substantially more to achieve.”

In spite of evidence of diminishing returns, the prison population in the U.S. is projected to increase at several times the rate of population growth in coming years. The incarcerated population is projected to increase even more rapidly in Idaho. It’s projected that in the next four years the Idaho prison population will grow by more than 20% even though our overall population will grow by less than 8%. If the prison population projections are accurate, we will be tied (with Alaska, following Montana and Arizona) as the state with the third highest incarceration growth rate in the nation. Idaho’s longstanding trend of rapid growth of prisoners has recently abated, however. For five months now the prison population in Idaho has defied projections and has not increased. We’ll discuss the possible reasons for this later.

Besides tough on crime sentencing and parole practices, at least two additional factors contribute to projections that Idaho’s prison population will continue to grow faster than most states. First, our population is growing faster than the nation at large (7.7% as compared to 4.5%). Second, Idaho, like other states in the West, Midwest, and South, is experiencing an epidemic of crimes related to the use of methamphetamine.

The growth of our prison population has also dramatically increased our corrections costs. In the current year, the state will spend $201 million dollars from the general fund for adult and juvenile corrections, a 943% increase over the $19.3 million it spent 20 years ago. If current trends continue, the day is not far away when the state will spend more on corrections than on higher education. Nevertheless, the current cost of incarcerating a prisoner in Idaho is much lower than the national average. At a cost of about $55 per day, or $20,075 per year, Idaho has the 43rd lowest operating cost in the nation.

With the growth in our prison population we’ve also filled our prisons to overflowing. Currently, the state incarcerates 494 prisoners out of state, which costs more than housing them here. Given growth projections, Idaho will need to incarcerate an increasing number of inmates out of state or invest in other options.

We are at a corrections crossroads. Current overcrowding and projections of a steadily increasing prison population mean that we must make an immediate investment in our corrections system. But what investments should we make? One obvious option is to invest in building more prisons. A recent study projects that Idaho will need to undertake the construction of an additional 5,560 beds at a cost of just under $1 billion over the next ten years if we maintain our current approaches to public safety.

There is a range of other options that emphasize investing in reducing the number of people who need to be sent to prison. First, by investing in proven prevention and diversion programs, many suggest, we can provide greater public safety for less money, not to mention improving the lives and productivity of those who would otherwise go to prison. Many of the prevention and diversion efforts most frequently identified address Idaho’s pronounced drug abuse problems. Between 2002 and 2005, Idaho had the fourth highest rate of methamphetamine abuse in the nation. Fifty-two percent of Idaho inmates being released on parole report that their incarceration was the result of methamphetamine abuse and 85% report that they have some kind of substance abuse problem.

A second option that might reduce the need for new prisons involves increased emphasis on the corrective or reform functions of incarceration. Effective programming can have more inmates ready for parole sooner and can reduce the chances that they’ll be re-arrested and return to prison after they’re released.

Third, we could change our sentencing and parole practices so that fewer people are sent to prison and so that those who are sent to prison stay there for a shorter time. Fourth, there are options for improving the coordination between parts of the corrections system that might reduce the need for more prisons.

Most who take a serious look at our corrections system agree that the problem will require investment in all or most of these approaches. But what combination specifically? In the following pages, we review the options. We start by examining the options for building more prison capacity.

2 . Prison Construction

Almost everyone agrees that Idaho must invest in building at least some additional prison capacity. While there is wide consensus that construction is needed, there is much debate surrounding the details.

Two debates deserve particular attention. The first regards funding, ownership, and management options. On one end of the range is the option of a prison that is privately built, owned, and managed from which the state rents beds. On the other end is an entirely public facility—a prison built, owned, and operated by Idaho itself. Other options have a private-public mix.

The second debate regards prison capacity. Should construction on 2,000 or more prison beds start immediately or should we build fewer beds and focus more of our resources on other approaches to the problem?

In the following discussion we’ll consider construction options that will shortly come before the Legislature as well as modifications of these options that have attracted interest. We review these options surrounding private vs. public prisons and ideal prison capacity with an eye towards which options give the best public safety return on tax payer dollars.

Private vs. Public Prisons

Corrections Corporation of America (CCA), the largest corrections management provider in the country, has been energetically arguing the benefits of a privately-owned and managed correctional facility. The Governor and Board of Corrections have been supportive of this approach. Together, CCA, the Governor, and the Board of Corrections have been pushing legislation that would allow for a privately-owned and managed correctional facility in Idaho.  Currently, private prisons are prohibited by state law.  Supporters have argued that there are three main benefits to a private prison.

First, they argue that a private company can build the same quality more quickly and economically than the state because it is not bound by state procurement practices and because of other efficiencies of private enterprise. There is also an economic advantage because with a private prison the state doesn’t start paying for any costs until prisoners are actually housed there.  On the other hand, with a public prison, the state starts incurring expenses as soon as construction is under way, although the prison may not be ready for prisoners for three or four years. Since we already have to pay the higher costs associated with sending almost 500 prisoners out of state, proponents argue, the increased speed of construction is a major advantage. CCA reports that a typical prison built by the private sector can be constructed in 12-18 months, compared to an average of three to four years for publicly built prisons.

Second, private prison supporters argue that this would be an economic boon to Idaho. A private prison would pay property taxes while a public one would not. CCA reports that annual property taxes paid by private corrections providers range from an average of $500,000 to $2 million.  It would also provide more jobs sooner than a public prison would, supporters argue. This is because for it to be sufficiently attractive economically for a private company to build a prison in Idaho, it would need to be a much larger prison than what is currently needed by the state. The proposal is for 2,120 beds. Those beds that weren’t needed for Idaho prisoners would be used by prisoners from other states until Idaho needed them.

Third, private prison supporters observe that it is difficult to project prison population growth with certainty.  The use of private prisons provides flexibility for dealing with this uncertainty that is not present when a state builds its own prisons.  Private providers can build capacity for a state customer’s projected needs and release unused space to a different customer while maintaining a fully operational facility.  This also provides a stable source of employment for those working at the facility.  This assurance of available capacity is provided without putting the state in a position of having to pay for beds that it doesn’t need at a given time.

While the Governor, the Corrections Board, and CCA have been strong supporters of the private prison, this option has generated considerable opposition from Legislators and many others. Three main arguments are offered against a private prison.

First, although opponents of private prisons agree that a private party can build more quickly and efficiently than the state, they argue that in the long term private prisons are more expensive for Idaho. Just as it makes more economic sense to buy a home than to rent if you know you’ll be in your home for a long time, opponents argue, it makes sense for the state to own a facility that it knows it will need for the 50 to 75 year life of the prison. The bonds that would be sold to pay for the prison would be paid off after 30 years. Because of inflation and the low interest rates that the state can obtain because it has the best bond rating available, proponents argue that significant cost savings are realized long before the bonds are paid off.

The property tax advantage is illusory, opponents also argue, because the taxes will be passed on to the state in the price to keep prisoners in the private prison. It’s hard to see the advantage, they argue, in using taxpayer money to pay taxes.

The private prison option is not in the state’s economic interests, opponents further argue, because there will be strong profit incentives for a private prison to charge more than would be economical for Idaho to pay. Opponents point to two facts to support this argument. First, because most states pay more per bed than Idaho, with some like California paying significantly more, the owner of a private prison will have an economic preference for housing out-of-state prisoners for whom they can charge more. Second, they point out that Corrections Corporation of America has, in fact, recently acted on this preference in Colorado. CCA requested a rate increase for housing Colorado inmates and has threatened to remove those inmates from its facilities and fill beds with out of state inmates if the state doesn’t comply with their request. According to one newspaper report, the move has been called extortion by both Republican and Democratic Legislators in Colorado.

Second, opponents argue that importing convicted criminals into the state has negative consequences. If out-of-state prisoners commit a crime in an Idaho prison, which is not uncommon, that prisoner becomes Idaho’s responsibility and the state must assume the costs of prosecuting and incarcerating the prisoner for that crime. The families and friends of some out-of-state prisoners may follow them to Idaho, possibly bringing gang or drug activity with them. And out-of-state prisoners may choose to live in Idaho after their sentence is complete.

Third, opponents argue that there are some functions that are inappropriate for the government to outsource. When the state chooses to put one of its citizens behind bars, they argue, it is exercising its police power in one of its harshest forms. Some argue that this awesome responsibility should not be intermingled with profit motive and the special interest influence that comes with it. A review of state records by The Common Interest found that CCA made $34,000 in donations to candidates in Idaho in the 2006 election, including the legal limit of $10,000 to Governor Otter. The Geo Group, another private prison firm lobbying for a private prison, also donated the legal limit of $5,000 for the general election to Governor Otter. CCA has hired a professional lobbyist who has actively been making CCA’s case to Legislators and the Governor. CCA’s lobbyist, who also represents many other clients, donated more than $8,000 in the 2006 election.

To address the questions about the economic wisdom of private vs. public prisons, the Idaho Department of Correction (IDOC) has developed estimated cost comparisons. They confirm that a private prison would be less expensive in the early years and that a state owned facility would be more economical in the long run. The first set of estimated cost comparisons that IDOC produced found that in the first year a 2,120 bed private prison would cost the state $60.5 million if Idaho prisoners filled all of its beds (actually only a portion of the prisoners in the early years would be from Idaho), while it would cost $65.8 million if the state built and owned the prison. By the second year, the $5.3 million dollar savings of the private prison is reduced to $2.9 million. By the eighth year, the public prison becomes slightly less expensive than the private prison. The cost savings of the public prison over the private prison continue to grow and then jump substantially in the thirtieth year when the state bonds are retired. In that year, housing inmates in the private prison would cost $160.4 million while it would cost $123.9 million to house them in the public prison for a savings advantage of the public prison of $36.5 million.

IDOC’s estimated cost comparisons have themselves become a matter of controversy. The Governor’s office argued that different assumptions could appropriately be used which would suggest a larger and longer lasting cost savings for a private prison. Specifically, the Governor’s office requested that IDOC produce a second set of estimated cost comparisons that assumed that for a private prison the cost of operating the prison would increase after the first year, but not the costs of the building itself (the first set of comparisons assumed that both the operation and building costs would go up 3% per year, about the usual rate of inflation). According to the second set of estimated cost comparisons, instead of the private prison being $2.9 million less expensive than the public prison in the second year, it would be $3.3 million less expensive. After that, instead of finding that the cost advantage of the private prison over the public prison declines each subsequent year, the second set of comparisons finds that the cost advantage of the private prison actually increases slightly each year until the 30th year, the year the bond for the public prison is paid off. This is because while the second set of comparisons assumes that none of the costs of the building will go up for the private prison, they assume that some of the building costs, specifically building insurance, will go up at 3% per year for the public prison.

The Governor’s office argues that the second set of comparisons is relevant and useful, because when it came to negotiating a contract with a private company, the state could credibly argue that the private company faces the costs of building the prison up front. Once the company has built the prison, it owns it and the costs do not go up. Accordingly, they argue, this second set may better estimate what the true costs of the private prison would be.

CCA argues that IDOC’s estimated cost comparisons, particularly the first set, do not fully capture the cost savings of a private prison because they assume that the state can build a facility at a cost comparable to that of the private sector.  CCA and many others argue, however, that the private sector can build more quickly and efficiently, for the reasons mentioned above. CCA also responds to the criticism about their request to increase rates by arguing that a rate increase now is only fair since the rate Colorado is currently paying is less than what it paid for the same services in 2000.  Opponents respond that while this is true, it nevertheless demonstrates that a private prison puts a state at the mercy of the owner, given the leverage that they have.

Many argue that the second set of comparisons is unrealistic and that the first set is more accurate. First, they argue, a private company will not typically pay cash to build a large prison, but will take out debt to construct it. Because the state has the best bond rating available and their bonds get beneficial tax treatment, the state’s debt service for building a prison will be less expensive, they argue, not more expensive than a private company’s. Second, critics of the second set of comparisons argue that regardless of how a private company chooses to finance the prison construction, it is making an enormous capital investment and that its aim in making such a capital investment is to generate a profit.  The stockholders of a private company expect to earn a healthy return on their investment. Critics of the second set of comparisons argue that no private company would agree to terms that didn’t allow the company to realize a return on its investment beyond the cost of its debt service, particularly when many other states pay substantially more to house prisoners than Idaho does. They point to Colorado’s current experience with CCA as evidence of this.  If anything, they argue, even the first set underestimates the cost of the private prison option because it doesn’t factor in a profit margin.

Beyond arguing that a private prison is sufficiently more cost effective for a sufficiently long time to make it preferable to the higher early costs of a public prison, the Governor’s staff has argued that the state can build protections against the Colorado situation into the contract.

With regard to the problems that might come with bringing in out-of-state prisoners, proponents argue that few friends and family members follow inmates. They also point out that the state would have a right to reject any out-of-state prisoner it didn’t want in Idaho because, for example, they were violent sex offenders or involved in gang activity or drug trafficking. The state could also require that an out-of-state prisoner be taken back out of Idaho for some period of time prior to that prisoner’s release.

In response to the criticism that a private prison is an inappropriate delegation of the state’s police power, proponents argue that the state can build in whatever level of oversight it wishes.  Proponents point to 25 years of experience with private contract providers who now are used at the federal level and in half of the states.  Through that experience, they argue, it has become clear that private providers can be a reliable and appropriate part of the country’s corrections system.

Many opponents of privately built, owned, and managed prisons, nevertheless believe that there are appropriate ways to leverage the unique advantages of the private sector in this area. For example, many are pleased with the private/public partnership at the Idaho Correctional Center south of Boise. It is owned by the state, but the state contracted with CCA to build and operate it. This allowed the state to benefit from the speed and efficiency of private construction while avoiding the expense after the early years of a privately owned prison. Proponents of this approach also argue that this leaves the state in control and free to change contractors if the state is unhappy with the arrangement, rather than being locked in with a privately owned prison. Another public/private variation would be to have the state “lease to own” a prison that a private company would build and potentially operate.

Prison Capacity

Beyond the question of whether new prisons should be public, private, or involve some sort of public/private partnership is the question of how many new prisons beds should be added to the system. This debate regarding capacity is complicated—happily—by the fact that in the last five months our prison population has held steady despite projected growth of 200 inmates. If this trend of below-forecasted growth continues, Idaho’s need for prison beds may be less than experts currently anticipate.

The primary driver for considering building a 2,120 bed facility now is the interest in a private prison. If the state builds a public prison or enters into another public/private partnership for a new prison, many suggest that it should be in the range of 500 – 1,100 beds.

Another alternative would be for the state to undertake the construction of more beds at existing facilities. For example, this year the Idaho Department of Corrections (IDOC) and the Governor have requested roughly $5 million in funding to convert an existing building at the Idaho Correctional Center into a housing unit of 304 minimum custody beds. Similar expansion could occur at county facilities. IDOC currently houses a significant number of inmates in county jails. Many argue that the state should investigate the expansion of these state-county partnerships in order to house state inmates. Proponents observe that this would keep inmates nearer the support of their family and friends. Opponents argue that effective programming isn’t available in county jails.

Those who support more modest investments in prison capacity argue that there is a range of more cost effective ways of enhancing our public safety than building prisons, such as investing in drug abuse prevention and treatment and in drug courts. Consequently, they argue, the state would be well advised to spend less on prisons and apply the savings to these more cost effective measures. It is particularly important to follow this strategy right now, proponents argue, because many indicators point to a slowing economy that will mean tighter revenues over the next few years. Like has happened in the past, they argue, the money that we commit to prison construction will make it impossible to invest as fully as is warranted in options that would prevent us from needing so many prison beds.

Those who support more ambitious investments in prison capacity argue that even if the state invests in initiatives that may slow the growth of the state’s prison population, we are already far enough behind that we will still need a substantial investment in prison capacity. Moreover, they argue, there are economies of scale in investing in one larger prison right now than in doing it piecemeal on a smaller scale.

IDOC’s cost comparisons provide some data on these arguments. IDOC first set of comparisons estimated that, in the first year, the costs of the state owned 1,060 bed facility would be $34.6 million, as opposed to the $65.8 million for the state built 2,120 bed facility. The $31.2 million savings could be spent on initiatives to slow the growth of our prison population, but because of economies of scale, building half the capacity doesn’t cut the costs in half.

It’s clear that whether we build additional prisons using the private or public options, any significant increase in prison capacity will be expensive. Are there realistic and practical alternatives to prison construction that would maintain or even enhance public safety but cost less? We now turn to a review of the most promising policy options that would slow the growth of the prison population. First, the brief examines alternatives to incarceration in the form of prevention and diversion programs. Second, we review options for investing in programming for offenders to reduce the chances that they’ll be re-arrested and return to prison after they’re released. Third, we examine possible changes to our sentencing and parole practices. Finally, we review possible improvements in the coordination among parts of the correction system.

3. Alternatives to Incarceration

As the number of prisoners and the costs of incarcerating them have grown significantly in recent decades, so have the efforts to find cost effective alternatives. Of course, a broad range of initiatives can affect prison populations, including programs to improve the economy and the education system. For purposes of this brief, we have restricted our examination to programs more specifically aimed at preventing crime or diverting those convicted of crime into alternatives that are more effective than prison.

Rigorous empirical evaluations of these efforts nationally have shown that many of these alternatives have either not been effective at reducing crime or have cost more than they saved. However, that research has also identified a number of approaches that are cost effective. These successful programs enhance public safety as well or better than prisons while costing less. In the following paragraphs, we review four of the alternatives that empirical research has found to be the most cost effective.

Preventing and Treating Substance Abuse in the Community

As mentioned previously, 85% of Idaho’s inmates have a drug problem and 52% are in prison because of methamphetamine use. Not surprisingly, then, considerable attention has been paid to preventing and treating substance abuse before it translates into incarceration.

Under the leadership of Governor Otter and Debbie Field in the Office of Drug Policy, Idaho has recently undertaken an ambitious effort specifically aimed at preventing the use of methamphetamine. The Idaho Meth Project is patterned on the Montana project that emphasized edgy television and radio ads educating young people about the dire consequences of meth use. The Montana project has shown remarkable results. During its first two years, Montana went from the state with the fifth highest rate of meth use to 39th and meth related crime decreased 53%. Governor Otter, First Lady Lori Otter, and Debbie Field have worked hard to raise donations for this project so that it does not require state appropriations, giving this program a taxpayer cost to benefit ratio that is hard to beat.

Once individuals have begun abusing substances, treatment in the community helps them address the problem before an escalation of abuse or criminal behaviors mandates incarceration. Nationally, rigorous empirical evaluations find that the average community-based drug treatment program reduces criminal activity by 9.3%. Beyond finding that the average drug treatment program is effective in reducing crime, the research also confirms the cost effectiveness of these programs. The average drug treatment program costs $574 per person, but the reduction in crime it produces saves taxpayers an average of $5,495 (including prison costs) and saves crime victims an average of $5,133 for a total net benefit of $10,054.

Idaho’s ability to realize the benefits of addressing substance abuse problems increased dramatically in 2005 when we were awarded a three year federal grant for substance abuse treatment. In the first year, the state spent a little over $1 million in federal money for drug treatment. In 2006, the state spent $6.6 million. In 2007, the last full year of federal funding, Idaho spent more than $13 million in federal funds on community-based treatment. At its highest level that year, the state spent $2 million per month on substance abuse treatment.

Even at that highest level, many people who sought and qualified for treatment were left on waiting lists. Last year, the Department of Health & Welfare’s request for 2008 included $6.5 million in state money to round out what was left of the federal grant. With what remained of the federal grant, this brought the total funding for substance abuse treatment up to $13.9 million. This provided for $1.1 million per month in substance abuse treatment, a little more than half the level of treatment provided at the peak of 2007. Although the Governor’s budget recommendation did not include that $6.5 million in state funds, the Legislature nevertheless appropriated it.

While the funding over the last few years significantly increased our effort to realize the promise of community-based treatment, serious questions arose about the quality of drug treatment in Idaho and the effectiveness of the state’s oversight and management of drug treatment. Many agreed that the supply of treatment providers had been limited in quantity and quality. A formal evaluation concluded in 2005 confirmed that Idaho’s oversight had been less than stellar. The evaluation found that, among other things, control and oversight was fragmented and that insufficient data had been gathered and analyzed to determine whether our community-based treatment programs and providers were realizing the full promise suggested by national research.

In addition to providing more state funding for drug treatment, in 2007 the state took an important step towards providing more oversight of drug treatment spending and outcomes and to assure reliable and appropriate levels of funding. Former Governor Risch had earlier established the Office of Drug Policy by executive order. In 2007, Governor Otter and the Legislature made the Office of Drug Policy (ODP) permanent as a matter of state law. ODP concentrates the responsibility for measuring and responding to substance abuse within a single office. They also gave this office a strong leader in Debbie Field, who had gained wide respect on these issues as the former Chair of the House Judiciary and Rules Committee and who managed Governor Otter’s campaign.

By all accounts, including a follow-up formal evaluation, ODP has done remarkable work. It established a single substance abuse assessment tool, GAIN, to be used by all agencies statewide along with a statewide data collection software program, WITS, to be used in conjunction with this tool. These developments will improve the ability to measure and track substance abuse treatment programs and their effectiveness across the state. ODP has requested $67,500 in funding to implement the WITS system and $102,800 in funding to train substance abuse providers in using the GAIN assessment tool. By enabling Idaho to measure its experience with specific drug treatment programs and providers, we can be sure we’re maximizing the return on our drug treatment dollars. The Governor has recommended full funding for these measures.

In the last year ODP has also done unprecedented work in coordinating all involved state agencies. In particular, based on Idaho’s experience with more funding, they jointly assessed the demand for drug treatment going forward and concluded that the peak level of about $2 million per month was what was needed. As a result, ODP and the other involved agencies submitted a coordinated request that the current year’s $13.9 million in substance abuse treatment be increased by $13.5 million. In addition, ODP requested another $7.4 million for some expansion of case load, an increase in rates to attract providers to serve rural and juvenile populations, and an expansion of DUI drug courts, making the total increase in drug treatment requested by ODP $20.9 million.

To the surprise of ODP, its partnering agencies, and many others, the Governor did not recommend the $20.9 million increase in drug treatment that ODP requested. The Governor and his staff point to the lack of evidence that Idaho’s specific drug abuse programs and providers are effective and so suggest that these programs are not a good investment of taxpayer money.

While it’s easy to find people who agree with the Governor’s concerns about the quality of Idaho’s drug abuse treatment in the past, it’s more difficult to find people who agree that the right response is to cut funding so dramatically. With the impressive progress achieved by the ODP to address past problems, they argue, now is not the time to dramatically scale back drug treatment. With little drug treatment funding, many argue that the funding to establish a common assessment tool and data collection method will do little good. With full drug treatment funding and the new assessment capability, however, they suggest that Idaho can make significant strides toward ensuring that our drug treatment is as or more effective than the national average. The quality and number of drug treatment providers will only decline, they contend, if funding is cut so significantly.

Many Legislators have expressed a strong willingness to provide the funding that ODP has requested. However, with declining revenues from an economic slowdown and an overall budget recommendation from the Governor that has allocated anticipated revenues elsewhere, there is concern about where to find the $20.9 million.

The Common Interest’s research on contributing factors to the overcrowding prison problem suggests a possible source of dedicated funding for the requested increase in substance abuse treatment. Research indicates that if Idaho’s tax on beer and wine were raised, the increased cost would reduce substance abuse and decrease crime. The increased revenue could also be dedicated to funding substance abuse treatment, thus further reducing crime and the need for more prisons.

Raising Beer and Wine Tax

Empirical research finds that an increase in alcohol taxes leads to a reduction in crime generally and particularly reduces domestic violence, child abuse, rape, and underage drinking. Research also confirms that increasing taxes on beer and wine reduces medical costs imposed on others, alcohol related traffic crashes and fatalities, and binge drinking and other substance abuse.

Idaho’s beer tax is 15 cents per gallon, or 1.4 cents on a 12 oz can. Nationally, tax on beer averages 26 cents per gallon, or 2.4 cents on a 12 oz can. Idaho’s wine tax is 45 cents per gallon, or 1.8 cents on a 5 oz glass. Nationally, tax on wine averages 79 cents per gallon, or 3.1 cents on a 5 oz glass of wine.

The 15 cent per gallon tax on beer was established in 1961 and the 45 cent per gallon tax on wine was established in 1971. Because the tax is on volume and not price, the real revenue generated by the beer and wine tax has declined substantially over the decades since these taxes were established. If the beer tax was the same in today’s dollars that is was in 1961 dollars, it would be $1.12 per gallon or 10.5 cents on a 12 oz can. In today’s dollars, the 1971 wine tax would be $2.70 per gallon or 11 cents on a 5 oz glass of wine.

While our state alcohol taxes are low, the cost of alcohol related social ills is high. Recent research indicates that Idaho collects $4.68 in state alcohol tax revenue per person, but spends $141.76 per person in alcohol related healthcare costs, not to mention public safety costs. This means that for every $1 in alcohol taxes Idaho raises, it spends $30.30 to solve the health care problems that alcohol causes.

Accordingly, a legislative interim committee recommended in 1999 that work be undertaken to address “equitable and adequate alcohol beverage tax structures needed to pay the cost of substance abuse” and Governor Kempthorne’s 2020 Blue Ribbon Task Force recommended that the state “increase taxes and/or licensing fees on beer and wine to enhance resource availability to address social and criminal issues resulting from substance abuse.” Just this January, the Mental Health Subcommittee of the Health Care Task Force recommended “support for on-going funding for substance abuse treatment through a beer & wine tax increase.”

In spite of so many recommendations to increase the beer and wine tax, it hasn’t happened. Why? Most people explain decades of failure to raise beer and wine taxes as a simple matter of powerful special interest influence. In fact, the 2020 Blue Ribbon Task Force concluded that the only obstacle to implementation of their recommendation was the fact that “the beverage distributors lobby will aggressively oppose increased taxes or fees.”

The beer and wine lobby argues that there are more substantive and compelling reasons to oppose a tax increase. First, they argue that the whole idea of an excise tax is misguided. For example, just because cars cause accidents, they argue, doesn’t necessarily mean that there should be an excise tax on cars.

Second, the beer and wine lobby points out that Idaho has an important and growing wine industry. By raising wine taxes, they argue, we will hurt an industry that we should be encouraging. Proponents of raising beer and wine tax argue that Idaho’s wine industry is actually an important argument for raising the wine tax, so long as it is converted to price. Proponents observe that most wine produced outside of Idaho is more expensive than that produced in Idaho. Consequently, they observe, a higher tax on price would produce a bigger increase in the purchase price of most out-of-state wine, giving Idaho wine a competitive advantage.

If beer and wine taxes were to be raised, three different standards could be used to establish how much to raise them. First, we could raise them to be the same in real value as they were when they were established. This would generate $44.4 million in new revenue. This would pay for the $20.9 million in increased drug treatment requested by ODP and leave $23.5 million that could be dedicated toward paying for other public safety costs generated by alcohol use. Some legislators have suggested raising the beer and wine tax to this level and using the $23.5 million it would generate beyond the ODP request to help fund the court system. Currently, dedicated funding for the district courts generates $41.5 million annually. But the district courts cost $70.3 million each year. The $28.8 million difference is borne primarily by counties relying largely on property tax revenues. Legislators point out that the costs to a particular county can be highly variable. A large murder case can run into the millions, swamping a small county’s budget. Since the counties are enforcing state laws, these legislators argue, the state should bear more of the financial burden for the district court system. Additional state funding for district courts would have two distinct advantages, they observe. First, it pools the risk of unanticipated large spikes in court costs for particularly expensive trials at a state level which is a more prudent risk management strategy. Second, by paying for these costs with beer and wine tax rather than county property taxes, it would provide property tax relief. Alternatively, the $23.5 million beyond the ODP request could be used to fund other investments in prevention, treatment, diversion, and in-prison programming discussed in this brief that would further reduce the need for new prison capacity.

The second standard that could be used to establish a beer and wine tax increase would be to raise them enough to pay for the $20.9 million increase in drug treatment requested by ODP. This would mean a beer tax of 57 cents per gallon or 5.4 cents on a 12 oz can. It would mean a wine tax of $1.71 per gallon or 6.7 cents on a 5 oz glass.

The third standard that could be used is the national averages. Raising Idaho’s beer and wine tax to the national averages would generate $5.6 million in new revenue, roughly one quarter of ODP’s requested funding.

Of course, the real revenues generated by any of these tax increases would still decrease over time so long as it remained a tax on volume rather than price. To address this issue, any of the tax increases described above could be converted into an equivalent tax on price so that the real value of the tax would be maintained over time.

Drug Courts

If we are unsuccessful in preventing drug abuse or treating it before in leads to serious crime, drug courts offer an alternative to incarceration for substance abusers. Drug courts emerged in response to judges’ concerns that the incarceration of substance abusers was ineffective. Too frequently, substance abusers serve their time in prison only to be released and re-offend. Now, drug courts offer treatment and intensive supervision with the prospect of immediate incarceration if offenders don’t abide closely to the rigorous drug court regimen. That regimen includes intensive drug treatment and extensive drug testing to be sure they are no longer abusing. It often includes requirements for participants to finish their education and/or to find a job. If participants do successfully complete the strict requirements, the reward is a commuted sentence.

Nationally, research has found that the average drug court reduces criminal activity by 8% and does so in a cost effective way. The average drug court costs about $4,333 per person, but the reduction in crime it produces saves taxpayers an average of $4,705 and saves crime victims an average of $4,395 for a total net economic benefit of roughly $4,800 per participant.

Drug courts are a policy area in which Idaho has been a leader. Our drug courts programs have, if anything, been even more impressive than in most states. Idaho drug court graduates get re-arrested at a significantly lower rate (19%) compared to a similar group not participating in drug courts (37%) thus generating substantial taxpayer savings. In 2006, Idaho retained 809 felony defendants through drug courts. At a cost of roughly $6,950 per year for each individual—as compared to the $20,075 per year cost of incarcerating an offender—Idaho drug courts saved our state more than $10 million in 2006 alone.

Reflecting this proven effectiveness, Idaho has invested in drug courts. The state currently has over 50 functioning drug courts. This year ODP has requested about $2 million in funding for an additional 275 drug court slots for DUI or misdemeanor offenders and roughly $900,000 in federal funding for the establishment of two new family drug courts in Pocatello and Boise. The Governor has recommended funding for the additional 275 drug court slots for DUI or misdemeanor offenders, including the requisite substance abuse treatment for these individuals, but has not recommended authorizing the use of federal funds for the family drug courts.  In regards to the family drug courts slots, the Governor’s staff has argued that authorizing federal funds now would necessitate the use of state funds to sustain the slots in the future.  Proponents argue that, even so, research demonstrates that this would be a wise investment.

Proponents of expanding drug court slots argue that the savings to Idaho taxpayers justify the effort and expense. Opponents argue that, specifically in the case of those charged with misdemeanor crimes, incarceration is not the alternative to drug court participation and, therefore, the state doesn’t realize the same dramatic savings. Proponents, including many judges, counter that the misdemeanor offenders who would be channeled into drug courts are repeat offenders whose crimes are already serious and who are on the path toward a felony conviction and subsequent incarceration unless intervention occurs.

Cognitive-Behavioral Therapy in the Community

Various forms of cognitive behavioral therapy allow those who have been convicted of a crime and sentenced to probation rather than prison to recognize that they may lead law-abiding lives by responding to their feelings and thoughts in more productive, pro-social ways. Research has found that the average cognitive-behavioral therapy program nationally reduces re-arrests by 6.3%. Although these programs only cost an average of $105 per participant the reduction in crime they produce saves taxpayers an average of $4,746 per participant and saves crime victims an average of $5,658 for a total net economic benefit of roughly $10,299 per participant.

Intensive Supervision: Treatment-Oriented Programs

Treatment-oriented intensive supervision programs are those in which an individual on probation or parole receives more frequent contact with a probation or parole officer than usual in conjunction with needed substance abuse, mental health, or other treatment. Nationally, research finds that the average treatment-oriented intensive supervision program reduces re-arrests by an impressive 16.7%. These programs are relatively expensive, averaging $7,124 per parolee. However, because they reduce re-arrests so significantly, they generate substantial net savings despite their costs. On average, these programs save taxpayers $9,369 and crime victims $9,318 for a total net economic benefit of $11,563 per participant.

4. In-Prison Programming

While alternatives to incarceration are realistic for some offenders, public safety requires that other offenders be incarcerated. Empirical research has identified cost-effective corrective programming that can improve public safety by reducing the rates of re-arrest once an inmate is released.

Staff at IDOC are well-versed in this national research and have worked hard to develop programs based on it. Past limits in funding for administration and data gathering have limited IDOC’s ability to test whether their applications of nationally proven programs are effective but they are currently in the process of evaluating those programs.

While Idaho offers evidence-based programming, there are still unmet needs. On any given day, our available in-prison programming meets the needs of only 80% of the inmates who require programming. Our inability to offer programming to all inmates in a timely manner has two costly consequences. First, it leaves the net economic benefit to be derived from re-arrest reducing programming unrealized. Second, with more programming capacity, more inmates would be released on parole sooner. Recognizing the high re-arrest rates that occur without programming, the Parole Board often requires programming to be completed before they grant parole.

We now review four of the categories of in-prison programming that have proven to be most effective as well as several specific proposals regarding these alternatives that will come before the Legislature this year.

Vocational Education in Prison

Vocational education programs offer incarcerated offenders job training that will enable them to be gainfully employed following release. National research finds that the average vocational education program in prison reduces re-arrests by 9%. The average cost of these programs is $1,182 per inmate. The reduction in re-arrests these programs produce save taxpayers an average of $6,806 and crime victims an average of $8,114 for a total net economic benefit of $13,738 per participating offender. In fact, in one meta-analysis of 573 rigorous studies of investments in adult programming that would reduce prison populations, no single investment generated a greater cost/benefit ratio than in-prison vocational education.

This year, the Legislature will consider a request for $900,000 from IDOC to fund the construction of a new 4,000 sq ft vocational education building or the remodel of an existing building to serve inmates at the Idaho State Correctional Institution (ISCI) and the South Idaho Correctional Institution (SICI). The Governor has recommended full funding of this construction.

General Education in Prison

General education programs allow incarcerated offenders who are lacking education to, first, achieve basic literacy and, second, complete a GED or high school education equivalent. Nationally, research finds that the average general education program in prisons reduces re-arrest by 7%. The average program costs $962 per participant. The resulting reduction in re-arrests saves taxpayers an average of $5,306 and crime victims $6,325 for a total net economic benefit of $10,699 per participating offender.

Half of Idaho inmates come into prison without a high school diploma or GED. IDOC is currently evaluating the effect on re-arrest rates of the general education programs it provides. IDOC has requested $62,000 to hire an instructor to offer education services at the St. Anthony Work Camp where there is currently no funding or staffing for education services. The Governor has recommended not funding this position.

Cognitive-Behavioral Therapy in Prison

Above we discussed cognitive behavioral therapy in the context of probation. This same program of teaching offenders to recognize that they may lead law-abiding lives by responding to their feelings and thoughts in productive, pro-social ways is also provided in prison programming with similar results. Research finds that nationally these programs reduce re-arrests by 6.3% and yield a net economic benefit of $10,299 per participating offender. Currently, IDOC offers several cognitive-behavioral therapy programs.

Drug Treatment in Prison

Substance abuse treatment in prisons allows individuals with drug and/or alcohol problems to address those problems while incarcerated in hopes of promoting productive, law-abiding behavior upon release. Nationally, research finds that the average in-prison drug treatment program reduces re-arrest by 5.7% and costs an average of $1,604 per inmate. These programs result in a reduction in crimes committed after release which save taxpayers an average of $4,306 and save crime victims an average of $5,133 for a total net benefit of $7,835.

Both IDOC and the Parole Commission have expressed interest in increasing the state’s therapeutic community drug treatment offerings. In the State of the State, Governor Otter proposed designating the 304 bed expansion at the ICC a therapeutic community.

In coordination with the ODP, IDOC has also requested an increase of $750,000 primarily in other drug treatment programming. The Governor has not recommended funding this increase in treatment.

Investments in Programming Delivery

IDOC has requested $289,200 to contract for professional services (data entry, quality assurance, inmate accountability, maintenance) in order to allow programming staff to focus on program delivery. Similarly, the Parole Commission has requested $420,600 to contract with private providers to provide required psychological reports, sex offender assessments, and mental health evaluations so that the IDOC clinical staff can focus on treatment. The Governor has not recommended funding these requests.

5. Sentencing & Parole

As mentioned at the beginning of the brief, Idaho responded like most states to the surge in crime experienced in the 1960s and 1970s by imposing “tough on crime” sentencing and parole policies that have contributed to the growth of prison populations. Our tough on crime sentencing falls chiefly into two categories. As mentioned above, in 1986 Idaho passed the Unified Sentencing Act, a “truth in sentencing” law that ensures that every inmate serves a fixed sentence. Second, Idaho punishes about a dozen crimes with mandatory minimum sentences. Now, many wonder if a revision of current sentencing and parole practices may contribute to the resolution of prison overcrowding.

Mandatory Minimums

Opponents of mandatory minimums argue that these sentences deprive judges of necessary discretion and fill prisons with individuals whose sentences are unnecessarily long. Opponents are particularly troubled by the mandatory minimums related to drug use, suggesting that substance abuse treatment is the more appropriate and cost effective way to address this problem.

In response to such opposition, some argue that the state’s very limited list of crimes that carry mandatory minimums, about a dozen, is both justifiable and desirable. In addition to mandatory minimums assigned to drug trafficking and repeat drug use offenses, mandatory minimums govern repeat offenders of sexual abuse of children. DUI’s are also subject to mandatory minimums, but typically involve only a few days of incarceration and so do not contribute substantially to the overcrowded prisons problem. Supporters argue that, upon review, most Idahoans support the assignment of mandatory minimums to such serious crimes. While judges argue against any further reduction of their discretion, they observe that their sentences for crimes punished by mandatory minimums regularly exceed the imposed minimums. They further observe that by the time most offenders are prosecuted for a crime that carries a mandatory minimum, they have already been before a judge many times for lesser crimes. Consequently, the judges argue, a reduction in mandatory minimums would do little to shorten sentences. Some also argue that having strict sentences for these kinds of crimes, combined with diversion programs like drug courts, is the best combination. Because serious consequences await them if they fail to make the most of their diversion opportunity, offenders are given powerful incentive to make the most of their opportunity.

Unified Sentencing Act of 1986

The Unified Sentencing Act established a two-part sentence for every prison inmate: (1) a determinate, or “fixed,” portion during which the inmate is not eligible for parole, and (2) an indeterminate portion during which they are. Many have argued that the Unified Sentencing Act has increased the problem of Idaho’s overcrowded prisons. The Friends and Families of Idaho Inmates, Inc., point out that fewer than 10% of inmates who reach their parole eligibility date (PED)—the date that marks the end of the fixed portion of their sentence and the first date on which they are eligible for parole—are actually paroled at that time. They also observe that roughly 3,600 of Idaho’s 7,300 inmates are currently past their PED. As a result, the Friends and Families of Idaho Inmates propose that virtually all Idaho inmates be paroled on or shortly after their PED by removing discretion over the indeterminate portion of an inmate’s sentence from the Parole Commission except in instances of serious institutional misconduct.

Opponents argue that the Unified Sentencing Act intentionally ensured that the Parole Commission would be able to exercise discretion. They argue that if the corrective promise of an inmate’s sentence isn’t realized during the fixed portion of their sentence, then the Parole Commission’s obligation to protect public safety requires that they deny that inmate parole.

Many individuals who oppose a revision of the Unified Sentencing Act, but who still acknowledge that many more Idaho inmates should be paroled on their PED’s, propose an alternative course of action. These individuals point out that the Parole Commission’s unwillingness to parole inmates on their PED’s is actually a result of lack of programming and faulty communications between IDOC and the Parole Board. IDOC and the Parole Board have already taken several steps toward addressing these problems. As evidence of their effectiveness, they point to the five months we’ve gone without growth in the prison population. But, they argue, there is still much more that can be accomplished along these lines. They recommend that the state take two concrete steps.

First, they argue that the Legislature should increase funding for corrective programming in Idaho prisons generally and, specifically, for Therapeutic Community (TC) programming. Second, they argue that the Legislature should fund a full-time Parole Commission employee at the Reception and Diagnostic Unit (RDU). The RDU is the unit through which every inmate must pass as they begin their incarceration. It is there that IDOC and the Parole Commission work together to plan for each inmate’s participation in corrective programming. Regrettably, a lack of Parole Commission staff means that, too often, this critical planning doesn’t happen. Instead, it is deferred until after the inmate has served most of their determinate sentence and is ready to begin interacting with the Parole Commission regarding their PED. When, at that time, the Parole Commission discovers that an inmate hasn’t engaged in required programming, they refuse that inmate parole.

6. The Corrections System

By this point it should be clear that the correction system is a complex one. The more effectively and rationally the various parts of the system operate together, the better the chances that any given individual investment will be effective. Similar to the state’s efforts to put in place a more rational, coordinated approach to drug abuse, considerable work has been done over the last year to improve coordination in the corrections system. Arguably, we are realizing important benefits. Over the last five months our prison population has held steady in spite of predicted growth of nearly 200 inmates. IDOC—whose analysts caution that a full year of data is needed in order to substantiate a trend and before any forecasts could be modified—tentatively credits this success to effective partnerships with the courts and the Parole Commission. The courts are sentencing fewer offenders to prison and more to effective alternatives. Some suggest that the higher level of community-based drug treatment has contributed to judges seeing fewer offenders who require incarceration. The Parole Commission has paroled more offenders closer to their PED, largely as result of greater coordination between IDOC and the Parole Commission in getting offenders the programming the Parole Commission will require before parole. They argue that past investments in shared data systems and staff capable of interdepartmental cooperation are now saving the state $11,150 every day. Arguably, further investments in a systematic approach to corrections might increase these savings even more. We review three possible investment options here.

Professionalization of Misdemeanor Probation

Our corrections problem extends far beyond the 7,300 individuals now incarcerated in Idaho prisons and the additional 13,000 individuals in community corrections. For instance, the number of individuals on misdemeanor probation is approaching 14,000. IDOC is not responsible for these individuals. Instead, these offenders are managed at the county level. Many argue that this division of duty creates an inconsistency of treatment which too often allows for a preventable escalation of criminal behavior until repeat misdemeanor offenders are finally convicted of felonies. At that time, of course, the state must step in and pursue serious corrective action.

Judges, who encounter misdemeanor offenders long before the escalation of their criminal behavior leads to felony convictions, are among those who argue that if we treated serious and repeat misdemeanor offenders with the same seriousness of intent to correct as we treat felony offenders, we could prevent this escalation of criminal activity and reduce the number of inmates entering our prisons. To this end, a bill to professionalize misdemeanor probation will come before the Legislature this session. This bill would require that counties provide misdemeanor probation services. It would also require that counties train and certify their misdemeanor probation officers through the Police Officer Standards and Training Academy (POST).

In order to pay for these services, the bill will allow for the maximum monthly fee for misdemeanor probation supervision to increase from $35 per month to $50 per month—thus matching the maximum monthly felony probation supervision fee—and will dedicate the first dollar of each monthly fee to pay for misdemeanor probation officer training.

Ideally, this bill would not only standardize and professionalize the way in which misdemeanor offenders are treated and thus forestall the escalation of their criminal behavior toward felony convictions, but also lay the groundwork for three future steps that would allow courts and counties to take serious corrective action on behalf of misdemeanor probationers. First, in the future, counties might increase the number of misdemeanor probation officers. Our nearly 14,000 misdemeanor probationers are currently supervised by about 80 misdemeanor probation officers. At an average caseload of 175 probationers, misdemeanor probation officers have little hope of a significant corrective influence. Experts estimate that the caseload for a misdemeanor probation officer handling high risk misdemeanor probationers shouldn’t exceed 50 to 75.

Second, in the future, counties could administer the same formal risk assessments for misdemeanor probationers that IDOC uses. Proponents argue that this would allow counties to assign appropriate caseloads to misdemeanor probation officers and focus limited resources on individuals most likely to re-offend.

Third, in the future, judges could order and then rely on risk assessments while crafting sentences or choosing alternatives to sentencing for misdemeanor offenders. Last year, SB 1149 empowered judges to order mental health and substance abuse assessments for those accused of felonies. Such risk assessments allow judges to craft appropriate sentences that include required treatment. By requiring appropriate corrective treatment for misdemeanor offenders, judges could help to prevent the escalation to felony offenses and the need for prison beds.

Investment in Data Management

Another systemic investment that could yield considerable savings is an investment in data management. Reflecting his commitment that state government be operated in a data-driven, efficient manner, the Governor argued last year for funding the full implementation of the Correctional Integration System (CIS), the system whereby inmates’ records are managed electronically. The Legislature willingly appropriated the funds. IDOC argues that this investment has already yielded savings by contributing to the slow down in predicted inmate population growth. In part, the ability of the Parole Commission to access important inmate information electronically helps to ensure that more inmates are ready for timely release.

Department experts argue that many of the efficiencies of electronic information sharing and inmate data management are still to be realized. Electronic information sharing could better facilitate the efficient management of inmates within and between Idaho prison facilities as well as between Idaho and out-of-state facilities. It could allow for more efficient management of corrective programming. Estimates suggest that the department would benefit from an additional 15 full-time equivalent state employees (FTEs) to do this work. While opponents argue that staff increases are expensive, proponents argue that personnel expenses pale in comparison to the costliness and inefficiency of on-going paper management and the inefficiencies that come with incomplete management of electronic data.

Public Safety Cost-Effectiveness Analyst

National research finds that there are a number of effective investments that reduce crime and save the high costs of prisons. Full realization of the promise of increased public safety that costs fewer tax dollars requires evaluation of Idaho’s implementation of these investments. While IDOC offers forecasting of the prison population as a whole—thus allowing the state to anticipate the need of prison beds—there are other needs that we don’t forecast as effectively as we could or should. How many more offenders could we effectively treat through drug courts? How much more therapeutic community capacity would be optimal? Where and to whom should we offer vocational education? What is the ideal number of misdemeanor probation officers? The list of questions to which we currently don’t have adequate answers is long.

Corrections experts argue that we should—and can—know the answers to these questions. With a fully funded Correctional Integration System and the statewide drug abuse assessment and data gathering system, the state has access to more data and better data than ever before. Now, experts throughout the corrections system are advocating for enhanced analyses of this newly available information to insure wise investments of the state’s public safety dollars. Since the corrections system, particularly when one considers the need to prevent and treat drug abuse, involves several different agencies and offices within the executive branch as well as the judicial branch, many have suggested that one alternative would be to fund an analyst position that is independent of any one agency. For example, the analyst could be housed within the Legislative Services Office (LSO) or the Office of Performance Evaluation (OPE).