Issue Paper - December 1997 - Michigan Prison Population and Capacity

MICHIGAN PRISON POPULATION AND CAPACITY by Karen Firestone, Fiscal Analyst December 1997 ACKNOWLEDGMENTS

This Senate Fiscal Agency issue paper was researched and written by Karen Firestone, Fiscal Analyst. Mike Hansen, Fiscal Analyst, contributed to the contents of this paper. He provided guidance for the preparation of this paper and his insights into the issues discussed were invaluable. Lynda Davis and Pam Yeomans were responsible for typing the paper and for designing the tables and figures.

The statistical and population facts were provided by the Michigan Department of Corrections, Research Division.

TABLE OF CONTENTS
Introduction
Population Growth
Prison Admissions
Prison Exits
Prison Population Composition
Prison Capacity
Alternatives

Introduction

On November 13, 1997, Governor Engler recommended that the Michigan Legislature approve funding for the construction of five new prisons; three 960-bed minimum security, and two 1,260-bed multisecurity level prisons. The Governor is requesting additional prisons because, based on population projections, the number of prisoners will exceed present capacity by 2,500 at the end of calendar year 1998. Already, the October 1997 monthly prison census indicates that the net operating capacity of the State prison system has been exceeded by about 400 prisoners. In addition, the Governor's request reflects the potential increase in prison population that may be generated by the Truth-in-Sentencing Act and the related Sentencing Commission guidelines. That Commission has released its report, which estimates that prison population may increase by 20,000 to 25,000 over the next 10 years.

In order to meet the immediate over-capacity problem, the Governor directed the Department of Corrections to find space in existing facilities, such as day rooms and gyms, where prisoners could be maintained. This approach has provided nearly 700 more "beds". The Department is also reviewing the possibility of adding beds to Technical Rule Violation Centers that house certain parole violators. Finally, the Department of Corrections is investigating the use of Federal and/or out-of-state prison beds if the prisoner crowding reaches critical⁽¹⁾ levels.

Up to this point, the increase in prison capacity has kept pace with the growth in prison population through capacity management and new construction. It is becoming apparent that these measures to house the continuing growth of prisoners will no longer suffice. New construction and/or possibly changes in administrative policies will be needed. Therefore, this report attempts to determine the factors behind the growth in prison population observed during the 1990s, by examining Department of Corrections data on that population. Furthermore, Department of Corrections administrative policies are assessed for what impact, if any, they may have had on prison population growth. Based on these findings, this report presents a number of possible options that might be considered to address this problem in the most fiscally efficient manner.

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Population Growth

Changes in prison population reflect the interaction of admissions and exits (primarily paroles, though other types of "exits" do occur) to and from correctional facilities. As an example, the population will remain constant when admissions increase, as long as the number of paroles increases as well. On the other hand, if admissions increase while the number of prisoners paroled decreases, then the prisoner census also will increase. It should be clear that any number of admission/exit interactions could occur, resulting in significant census changes. It may be surprising that the number of persons entering the prison system as new commitments has basically been declining since 1990. However, parolees with technical violations and probationers with technical violations and new sentences have steeply increased in recent years. Because "technical violations" may reflect lack of adherence to Department of Corrections policies and regulations, as opposed to new penal code violations, modification of these Department of Corrections practices could have an impact on reducing the demand for more prison beds. Given this, some of the trends and factors affecting prison admissions and exits are discussed below.

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Prison Admissions

Prison admissions can be divided into two groups, in-take and return. Prison in-take has three significant components: new court commitments, probationers with new sentences or technical violations⁽²⁾, and parolees with new sentences. Prison return has just one significant category, parolees admitted for technical rule violations. Table 1 provides a summary of the two groups of prison admissions for the period 1990 through 1997. The distinction between the two groups is that in-take is the result of a new penal code violation, whereas return is a violation of the policies adopted by the Department of Corrections. The category of probationers with technical violations has features of both in-take and return, because the admissions, ordered by a judge, result from violation of probation policy or terms of probation.

Table 1 PRISON ADMISSION BY CATEGORY
Calendar Year	1990	1991	1992	1993	1994	1995	1996	1997*
In-take
New Commitments	6,880	6,728	7,089	6,101	5,680	5,160	5,089	5,262
Probationers with New Sentences or Technical Violations	2,374	2,327	1,979	1,553	1,932	2,617	3,046	3,084
Parolees with New Sentence	1,342	1,724	1,875	1,565	1,233	890	1,033	1,324
Return
Parole Technical Violators	1,453	1,647	1,657	1,955	1,964	1,916	2,577	2,742
Total Admissions	12,049	12,426	12,600	11,174	10,809	10,583	11,745	12,412
* Projection.

Prison in-take resulting from new court commitments has steadily decreased since 1990, whereas probationers with new sentences and technical violations have steeply increased in recent years. One theory explaining the decrease in new commitments and increase in probationers with new sentences or technical violations is that community corrections alternatives, which allow judges to sentence an offender with alternatives to prison, such as jail, probation, or treatment programs, have had an impact on these trends. It is logical that when alternative sanctions are used and offenders are placed on probation, a greater potential exists for probation violation and for probation violators to end up incarcerated. Thus, the number of probation violators entering prison would increase, at the same time that fewer offenders would go directly to prison, resulting in decreases in the number of new court commitments. The combined admissions of these two components have decreased by 908 from 1990 to projected 1997.

Even though decreases in new court commitments and increases in probationers with new sentences or technical violations offset one another, the importance of increasing admissions of probationers cannot be overstated. Probationers with new sentences or technical violations have increased by 710 from 1990 through projected 1997, with over 50% of this increase being recorded in the past two years. If probation admissions to prison could be separated into new sentences and technical violations, even by sample, more could be known about the source of the additional admissions. A study by the Department of Corrections indicates that 86% of probationers admitted to prison were convicted of or involved in a new felony.⁽³⁾ As this type of prison admission is growing, additional information about probationers involved in and the types of felonious behavior could help in the formation of policy that may decrease these admissions. Although a judge makes the final decision in all admissions to prison, probation officers make recommendations to the court on the sentence for technical violations.

Turning to the third category of in-take, parolees with new sentence admissions have dramatically changed during the period 1990 to 1997. At first these admissions increased, but in 1993, they began to decrease, until 1996, when they appear to increase again. This trend seems to be related to the decisions of the Young⁽⁴⁾ case. In 1993, a summary judgment by a Recorder's Court judge required parolees convicted of a new crime while on parole to serve the maximum of their original sentence before serving the minimum of the new sentence. In 1994, the decision was upheld by the circuit court, but in 1996, the Supreme Court overturned the decision, reinstating the Department of Corrections' long-standing practice of calculating earliest release date by adding the minimums of the original and new sentences and subtracting the time already served.

The in-take data seem to indicate that judges were finding alternatives to issuing a new prison term to parolees committing a new crime while the Recorder's Court judgment was upheld. Since the Supreme Court overturned the Young decision, judges appear to be returning to the old practice of sentencing parolees to prison for commission of a crime while on parole. If this trend is related to the Young decision, it is foreseeable that admissions of parolees with new sentences will continue to increase to the levels recorded in 1992.

Parole technical rule violations are noncriminal offenses, including associating with other felons, failing to attend treatment, failing to report to a parole meeting, and leaving the State without permission. In 1990, 1,453 parole technical violators were returned to prison; in 1997, the projected number of returns has increased to 2,742, representing a 88.7% increase over seven years. A Department of Corrections study, which sampled 162 parole technical rule violators, found that parolees returned to prison had committed about 2.9 technical violations, implying that most offenders are not returned to prison for one offense. According to the study, 57.5% of parolees returned to prison for a technical violation had a violation related to new criminal behavior, and an estimated 55% of the new criminal behavior resulting in a technical violation admission to prison was drug related. About 77.1% of parolees returned for technical rule violations had an identified substance abuse problem. Approximately 27.9% of the parolees returned for parole technical rule violations were originally serving a sentence for an assaultive crime.

Calendar Year	Parole Technical Violators	Average Number of Parolees Supervised	Percentage
Table 2
PAROLE TECHNICAL VIOLATORS COMPARED TO PAROLE POPULATION
1990	1,453	11,107	13.1%
1991	1,647	11,913	`13.8%
1992	1,617	12,269	13.2%
1993	1,961	12,299	15.9%
1994	1,958	11,391	17.2%
1995	1,919	11,756	16.3%
1996	2,577	12,091	21.3%
1997	2,742	11,700*	23.4%
*Projection based on third quarter Workload Report, Calendar Year 1997.

As shown in Table 2, the average number of parolees supervised has remained fairly constant, suggesting that the parolees are returned for technical violations more frequently. Technical Rule Violation (TRV) centers, introduced in 1993, are intended to sanction technical rule violators without a prison admission. Adding the number of parolees returned to prison to the number of parolees admitted to these centers shows a greater incidence of technical rule violation, as illustrated in Figure 1. During this same period of time, parole agents were added to increase the efficacy of parole supervision, also illustrated in Figure 1. With smaller caseloads, parole agents could be more aware of technical rule violation, or report these violations more frequently, resulting in the admission of more technical rule violators to prison.

Thus, between 1990 and 1995 total prison admissions were trending downward. Since 1995 prison admissions have again begun to increase, primarily led by increases in admissions other than new court commitments.
Figure 1

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Prison Exits

Parole is the primary means of exit from prison, although prisoners may leave prison for other reasons such as discharge of sentence, escape, or death. Parole is also a significant factor in the recent increase of prison population. As illustrated in Figure 2, for the period 1990 through 1997, the "movement to parole" (i.e., actual exit from prison) has remained fairly constant in spite of changes in the number of prisoners granted parole.

Figure 2

Prisoners become eligible for parole when they have served the minimum sentence for their crime or, if they have received disciplinary credits, sometime prior to the end of the minimum sentence. If the parole board rejects a prisoner's bid for parole, the prisoner can apply again for parole after a given period has elapsed. When the parole board grants parole, the prisoner may not exit prison immediately because parole may be granted to take effect several months later. Parole may be denied if a prisoner misbehaves in the interval. Thus, there are several measures of parole activity: the parole board's decision, paroles granted, and the movement to parole. The number of decisions and the paroles granted are affected by the policies of the parole board, but only movement to parole has an impact on the prison population.

Since 1993, the number of parole decisions has remained relatively constant and the number of paroles granted has decreased from over 11,177 to 9,752, as shown in Table 3. However, the movement to parole as a percentage of paroles granted has increased in the same time period, keeping the annual number released from prison about the same. The decrease in the number of paroles granted is due in part to changes in parole board policy. In 1992, the existing parole board was dissolved, and the board's function restructured to provide more rigorous review of parole. Table 4 illustrates that the new parole board has significantly reduced the percentage of positive parole decisions for inmates who are seeking parole after the first attempt.

Table 3
PRISON POPULATION AND PAROLE STATISTICS
Calendar Year	Prison Population	Parole Decisions	Paroles Granted
1990	31,240	15,752	10,748
1991	33,018	15,553	10,042
1992	35,131	19,407	11,854
1993	36,474	17,663	11,177
1994	38,145	17,057	9,795
1995	38,854	17,601	9,678
1996	40,182	17,788	10,306
1997*	43,980	17,906	9,752
% change	40.8%	13.6%	-9.3%
----------------------------------------------------- &nbs p; * Projection based on October 1997 data.

The policies of the parole board, however, may not be entirely responsible for the recent changes in the number of paroles granted. As illustrated in Table 3, at the same time that the rate of paroles granted is decreasing, the number of cases reviewed for parole has remained fairly constant. Logically, as the prison population increases, the number of cases eligible for parole should also increase, unless prisoners are receiving longer sentences or are ineligible for parole because of the nature of their crime. Thus, the average minimum sentence and the prison composition are critical to parole and to the size of the prison population.

Table 4
PAROLES GRANTED BY ATTEMPT
Attempt	Historic Grant Rate	Current Grant Rate
1	49.2%	53.7%
2	41.5%	29.7%
3	41.4%	20.3%
4	28.5%	14.8%
5	20.0%	10.5%
------------------------------------ Source: Austin, Ph.D., James and Naro, Wendy, "Michigan Sentencing Commission Proposed Guidelines/Truth-in-Sentencing Prison Population Impact Assessment", November 10, 1997, p. 6

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Prison Population Composition

The Department of Corrections has estimated that for each month the average minimum sentence is increased, an additional 700 beds are necessary. As seen in Table 5, the average minimum sentence imposed by type of crime is rising⁽⁵⁾. During the period from 1990 through 1996, the average minimum sentence for nonassulative crime increased by 8.4 months, for drug crime by 4.4 months, and for assaultive crime by 6.4 months. Additionally, the number of prisoners with a life sentence (who are excluded from the average length of minimum sentence statistics) has increased by about 1,000 from 1990 to 1996.

Table 5 AVERAGE LENGTH OF MINIMUM SENTENCE BY OFFENSE TYPE
	Nonassaultive		Drug		Assaultive
Calendar Year	Admissions	Average Length of Minimum Sentence	Admissions	Average Length of Minimum Sentence	Admissions	Average Length of Minimum Sentence
1990	6,066	N/A	2,030	N/A	3,760	N/A
1991	5,001	2.6	2,679	3.7	4,425	9.2
1992	5,181	2.6	2,435	3.8	3,463	9.3
1993	4,143	2.7	1,814	4.1	3,384	9.3
1994	4,317	3.3	1,820	4.2	3,537	9.8
1995	4,080	3.4	1,780	4.3	3,606	9.8
1996	4,378	3.3	1,830	4.2	3,769	9.8
---------------------------------------- N/A = 1990 data unavailable

As the average minimum sentence increases, the composition of the prison population changes. Table 5 shows that the admissions of nonassaultive and drug offenders have continually decreased. Proportionally admissions by offense type have remained constant, but the composition of the prison population has begun to change, as illustrated in Figure 3 The higher percentage of offenders currently serving for assaultive crime is the result of longer sentences and slight changes in admissions. The composition of the prison population affects movement to parole, because certain types of crime preclude parole, or the ability to earn disciplinary credits that reduce the amount of time served prior to parole consideration. As admissions of nonassaultive and drug offenders decrease, and the average minimum sentence rises, the stock prison population may be increasingly made up of more marginally parolable candidates.
Figure 3

In summary, certain admissions and parole, as well as the length of stay, have combined to increase prison population. As shown in Figure 4, the movement to parole has remained fairly constant and admissions have declined, slowing the rate, but not the growth of the prison population.

Figure 4

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Capacity

Prison capacity is the space available to house prisoners and is measured by the number of beds available to prisoners. Physical limitations, such as the size of the kitchen or the plumbing system, can affect the number of beds available in a prison facility. Prison capacity is also affected by court decisions or settlements and concern for safety within the walls.

State prison capacity has expanded to house the number of prisoners in the prison system through construction and capacity management techniques. Since 1996, approximately 2,700 beds have been or will be added to the prison system. Two prisons, a youth facility for juveniles tried as adults and a maximum security prison in St. Louis, will be opened for use in or after 1998. In addition, double bunking has become a standard for all minimum security prisons. Yet, this added capacity does not seem to keep pace with the increasing prison population.

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Alternatives

This report has examined some of the ways in which policies affect prison population and prison capacity. It appears that, based on current trends, the prison population will continue to grow throughout the next decade. If the Legislature decides not to support the proposed expansion of the existing State prison system, other alternatives will have to be reviewed. The efforts to reduce prison population, outside of reducing judicial sentences, depend on addressing probationers with new sentences and technical violations, parole technical violators, and the parole board's decisions. Up to this point public opinion has supported the measures that the State has taken, which have led to this prison population growth. However, as the portion of the General Fund/General Purpose (GF/GP) budget directed to prisons continues to increase, questions about these public policies also may be raised.

If the Legislature does not act on the Governor's proposed prison expansion initiative, the following measures may relieve some of the pressure to build additional prisons in the short term:

Rotating prisoners

Prisoners would work and sleep in shifts, thereby increasing the bed space available.

Setting up dormitories in cafeterias or gymnasiums

There is additional space to house prisoners within the existing prisons. However, the space currently has other functions. As long as sewer systems and kitchens can support the increased population, these spaces, such as cafeterias, could be used.

Renting beds in other states

Certain states have excess prison capacity available. Although costs may not be any lower than in-State incarceration and transportation costs would increase, the State would avoid capital outlay costs. This approach might be particularly useful if other measures could be found to reduce the prison population in the long run.

Targeting early releases

This approach would release only certain prisoners, such as prisoners serving time for writing bad checks or shoplifting. Serving a term six years and nine months, rather than seven years would not necessarily result in a parolee re-offending, particularly if older, less likely-to-offend prisoners, were targeted for early release.

Reviewing parole board policy capacity

If the parole board is hearing a constant number of parole requests, because it does not have the capacity to hear all eligible parole candidates, adding more members to the parole board could result in more paroles.

Over the long term, failure to construct new prison beds will necessitate a review of other options that could reduce prison populations. These include:

Evaluating sanctions of probationers with technical violations

Applying sanctions in a way that would maintain probationers in the community for as long as possible could reduce prison admissions.

Increasing parole programming and support

As shown above, community corrections alternatives aimed at probationers may have reduced prison population by over 1,000 prisoners from 1990 to 1996. Applying this program-based treatment, along with appropriate sanctioning to the parole population, marginal parole candidates potentially could be more successful, encouraging the parole board to ease its criteria for parole. This approach may be particularly appropriate, given the number of substance abuse problems identified in the parole community. Of course, the State has significantly increased funding to community corrections, and would have to increase funding to support such parole programs.

The Michigan Legislature faces difficult decisions in the months ahead as it determines the appropriate course of action to relieve prison crowding. If the Legislature does not fund the construction and operation of new prison beds, other alternatives must be debated in order to avoid a potentially serious problem. These other alternatives may require changes in State laws or changes in policies of the judicial system or policies under the control of the Department of Corrections.

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1. "Critical" levels may be characterized by an inability to find additional prison space to convert to bed space for inmates.

2. Probationers with new sentences are not separated from probation technical violations in Department of Corrections' data and, therefore, these admissions must be discussed as one unit. As one unit, the statistics do not give insight into the cause of these prison admissions.

3. A probationer could commit both a new crime and a technical violation at the same time. As an example, a drug positive urine sample, a probation violation, could be accompanied by possession of drugs, a new crime.

4. Wayne Co. Prosecutor v Department of Corrections and People v Young, 451 Mich 569 (1996)

5. The type of crime refers to the crime for which a prisoner is serving a sentence. Generally, nonassaultive crimes are property crimes, drug crimes are violations of the Public Health Code, and assaultive crimes are perpetrated against another person.