Felon Bill
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Felon Bill

Date: February 24, 2009
By: Michael Bushnell
State Capitol Bureau
Links: SB 46

JEFFERSON CITY - Before he even was sworn in as a state senator for his first term, Columbia's first-year senator had filed a bill to require criminals to serve prison terms closer to their actual sentences than is current practice.

Currently, the average convicted felon serves less than one half of the actual sentence before release, according to the Missouri Corrections Department.

But Sen. Kurt Schaefer, R-Columbia, proposes requiring a minimum of 85 percent of a sentence be served before release. He acknowledged he has found it difficult to promote a bill perceived as increasing prison populations and the costs associated with them, while the state grapples with an over $250 million budget shortfall.

Schaefer said his main goal is not to incarcerate large numbers of people for a much longer time, but to create more truthful sentencing.  He said judges are currently sentencing felons to exorbitant prison terms, knowing they will only serve a fraction of the time.

"Right now judges are getting pre-sentencing reports for what length prison terms they can give," Schaefer said. "So you'll get a judge giving a twenty-year sentence because they believe the person needs to spend at least four years in prison.  If the judge knew, and the victim knew for certain that the defendant would serve 85 percent of whatever sentence was given, you would see sentences reflecting that."

The state Corrections Department reports there are 30,377 felons serving time in state prison at a daily cost of $45.02 per inmate.  That amounts to a taxpayer cost of  $1.37 million every day to house Missouri inmates.  According to the department, felons currently in state are projected to serve 47.5 percent of their sentence before release.  Legislative staff report the average sentence of those released in 2008 was slightly greater than 38 percent of the original sentence.

Schaefer said he is trying to get Missouri in line with the federal government and a majority of the states, many of which enacted truth in sentencing bills in the mid-1990s.  According to the U.S. Department of Justice, the federal government requires those convicted of federal crimes to serve a "substantial portion" of their sentences, which in the vast majority of cases is at least 85 percent. 

A federal "truth-in-sentencing" law passed in 1994 committed federal funds to states which require felons to serve at least 85 percent of their sentences. The Department of Justice reports that 27 states plus the District of Columbia meet that requirement.

Democrats have expressed concern about the bill, in no small part because of the estimated cost.  The analysis of the bill estimated a minimum cost of nearly $40 million in the 2011 fiscal year, something that Sen. Jeff Smith, D-St. Louis, said makes the legislation unpalatable.

"In a time of such lean budgets, when we're facing the crisis we face, the last thing we need is a bill with a huge fiscal note that's going to cost corrections millions of dollars," said Smith, who, like Schaefer, serves on the Senate Judiciary Committee where the bill is assigned.

Smith also said it is inaccurate to think judges will immediately start issuing shorter sentences to reflect the mandatory sentencing.

"It takes years for changes to run through a system," he said. "It would take years for judges to start issuing shorter sentences that were 'true.' That would be millions of dollars in increased costs to prisons, and that's where we don't need to be budget-wise."

Schaefer countered by saying that the Corrections Department took the worst-case scenario in determining the cost and that judges would immediately change their sentencing formulas.

"I will tell you that the Department of Corrections will do anything to not lose the discretion to allow people to serve as little as five percent of a sentence," he said. "You could take a sky-is-falling amount for every dollar. What corrections is assuming is that judges will keep giving these long sentences, and I've talked to a lot of judges and I don't think that's a reasonable statement."

At a recent committee hearing on the legislation, three witnesses testified against the bill, saying it would remove a major incentive for felons to stay out of trouble and improve their lives following incarceration.  Defense lawyer Dan Dodson, representing the Missouri Association of Criminal Defense Lawyers, said early release dates act as an incentive for felons to remain out of trouble.

Dodson said the legislation would either lengthen prison terms or shorten the time that convicted felons spent on probation, because they would be spending more of the sentence incarcerated.  He said that, under that second option, convicts spending less time under the eye of the government could increase the likelihood of criminal recidivism.

"Let's say judges recalibrate it to where they really wanted someone to go (to prison) for four years, and they would normally give them a ten year sentence to serve four," Dodson said. "Now what you'd get, they're going to get a five year sentence and serve four or so, but instead of that person going back out on the street with probation as the carrot and the stick and we can say 'we're going to still watch you for a while,' you can't do that anymore."

More than two-dozen states have laws that comply with the federal "truth-in-sentencing" standards.  Various studies of those states have found mixed results.

A 2001 study published by the U.S. Justice Department analyzing the first five years of Virginia's truth in sentencing law found showed a decrease in recidivism.  But the study also reported a nearly one-third increase in the length of prison terms and an expansion in the state's prison budget. 

The Judiciary Committee's vice chairman said he worries about the cost and that the state may have to build a new prison or two.  He said the bill might have been easier to get through in the days of budget surpluses.

"I will say philosophically I support what Sen. Schaefer is trying to do," said Sen. Jack Goodman, R-Mt. Vernon. "The problem is that our taxpayers fund that bill.  While we do have an obligation to keep our streets safe, this year any bill that costs a lot of money is going to be difficult to pass."

Nonetheless, Schaefer told the committee that a law like this could be implemented at a much lower cost than estimated, because it doesn't mandate longer prison terms or incarcerating people who wouldn't be without this legislation.

"This doesn't affect anyone's ability to be sentenced to mental health treatment or drug treatment," he said. "All it does is, when a sentence is handed down, it requires that a sentence actually be served."