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Diverting and Reclassifying Misdemeanors Can Save Money and Inform Decisions About New Jails. . Spokane, Washington Rotary 21 April 28, 2011 Robert C. Boruchowitz, Professor from Practice Director, Defender Initiative.

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diverting and reclassifying misdemeanors can save money and inform decisions about new jails
Diverting and Reclassifying Misdemeanors Can Save Money and Inform Decisions About New Jails.

Spokane, Washington Rotary 21

April 28, 2011

Robert C. Boruchowitz, Professor from Practice

Director, Defender Initiative


Removing cases from the criminal court system either by diversion or treating them as non-criminal violations can save hundreds of thousands of dollars.

misdemeanor courts are overwhelmed
Misdemeanor Courts Are Overwhelmed
  • There are approximately ten million misdemeanor cases filed each year in state and municipal courts in the United States. In some courts, the combination of driving with a suspended license, possession of marijuana, and minor in possession of alcohol cases can total between 40% and 50% of the caseload. Many of those courts are overwhelmed with cases and the defenders in those courts, if they are present at all, are often overwhelmed and unprepared. The financial impact on both the defendants and the local governments is significant.
saving 1 billion per year
Saving $1 Billion per Year
  • By diverting or reclassifying these offenses as non-criminal violations, local and state governments could save hundreds of millions, perhaps more than $1 billion per year. In the process, as outlined in the NACDL report, the reduced burdens on millions of defendants would allow them to work and to meet their obligations, and the unfairness related to racial disparity would be reduced.
scope of problem
Scope of Problem
  • Tremendous volume and cost of misdemeanors—2009 Spokane District: 8000 cases filed; Spokane Municipal: 10,827 cases filed.
  • 77 pre-trial misdemeanor detainees per day Spokane Jail
  • 48 sentenced misdemeanor defendants per day--

Jail cost per day is $125 or $45,625 per year for one person.

125 misdemeanor defendants in jail --$5.7 million per year.


Public order—criminal trespass, nuisance alcohol, urinating in public, prostitution, coupled with TrafficTotal: 22% of pre-trial misdemeanor detainees


Twenty-seven percent of the pre-trial misdemeanors were in jail awaiting

trial for a crime against person. Seven percent were awaiting trial on a property charge; 3% for a narcotics offense; 48 percent for drunk driving; and 6% for a public order offense. The remaining 9 percent were in jail for a traffic offense.

[25 % for property, drugs, public order, or traffic.]

  • Alternatives—Divert more of these cases and re-classify some misdemeanors to non-criminal violations
  • Bennett report—underutilization of and inconsistent access to programs
    • Recommendations include: Expand Drug Court; • Develop expanded diversion options for mentally ill and expand Therapeutic Mental Health Court
other bennett report findings
Other Bennett Report Findings
  • At booking, the greatest percentage of felony charges were for Narcotics (43%);
  • 71 percent of felony offenders received a jail sentence, higher than the national average of 28%. 
  • -----------------
  • Possible alternative—treat more felony drug cases as misdemeanors, emphasize treatment options. Lower costs, less impact on defendants, more chance to avoid negative consequence of prison
  • Law Enforcement Assisted Diversion
racial disproportionality
Racial Disproportionality
  • Jail population: 86 percent misdemeanors, 89 per cent felony Caucasian, 7 percent misdemeanors, 3 per cent felony African American, and 7-8 percent are another race or ethnicity.
  • County 2009 est. population:
  • 87.8 % White Non Hispanic, 1.9% Black, 1.7 Native/Alaska Native, 2.4% Asian/Pacific Islander, 4.2 % Latino
poverty of people in jail
Poverty of people in jail
  • Forty-one percent of the misdemeanants and 1 percent of the felons had bond set at $500 or less
related topic lack of attorney
Related topic-lack of attorney
  • Sixty-eight percent of the misdemeanants were represented by the public defender. Nineteen percent retained private counsel and the remaining 13 percent did not have an attorney.
questions about outcomes
Questions about outcomes
  • Half of the misdemeanants were convicted in district court. Sixteen percent entered into a diversion program and 32 percent had their cases dismissed. The remaining 2 percent of the cases were still pending.
  • Sixty-one percent of the dismissed cases in district court were domestic violence cases. Five percent of the dismissals were other person crimes; 10 percent property crimes; 1 percent narcotics cases; 2 percent drunk driving and13 percent public order offenses. The remaining 8 percent were traffic offenses.
high rate of dismissal of felony charges
High rate of dismissal of felony charges
  • Five percent of the misdemeanants and 27 percent of the felons were released when no charges were filed
key recommendation
Key Recommendation
  • The Report recommends establishing a 24/7 Pre-Trial Services program, providing centralized intake and screening for the system. At this time Spokane County does not screen all defendants booked into the jail, does not provide uniform indigence screening, has no routine bail review, and does not provide supervision, monitoring and tracking services. The absence of these services contributes to high pre-trial failure rates.
one major possibility reclassification to non criminal violations
One Major Possibility—Reclassification to Non-Criminal Violations
  • There are about 48 people a year jailed in Spokane for possession of marijuana.
  • The ADP shows 5 narcotics misdemeanor detainees per day. Annual cost: $228,125
  • A University of Oregon study found that the marginal cost of prosecuting and convicting a misdemeanor in Oregon was $1,679.11

13 Public Order detainees per day

  • $593,125 per year jail cost
  • Public order offenses:
    • Criminal trespass, nuisance alcohol offenses, urinating in public, prostitution
cutting prison costs is a worthy cause washington post editorial april 17 2011
Cutting prison costs is a worthy causeWashington Post Editorial April 17, 2011
  • THE NAACP and Americans for Tax Reform (ATF) agree on very little. But Benjamin Jealous, president of the liberal civil rights group, recently found himself linking arms with ATF’s conservative president, Grover Norquist. The cause: prison reform.
  • The two view the subject through different lenses: The NAACP is primarily concerned with social injustices associated with the high rate of incarceration and the disproportionate impact on minority communities; Mr. Norquist focuses on the mounting costs to taxpayers of operating ineffectual prison systems. But both agree that millions of dollars are wasted each year on flawed policies that may not provide the best or most cost-effective means to protect society. The acknowledgment of the problem by Mr. Norquist and other notable conservatives, including former House speaker Newt Gingrich and David A. Keene of the American Conservative Union, should help propel reforms that have been shunned by lawmakers fearful of being labeled soft on crime.

The United States is the world’s leading jailer, incarcerating some 2.3 million people at an annual price tag of $70 billion. Roughly 500,000 inmates — almost 25 percent of those behind bars — have been put away for drug offenses. A significant number are hit with lengthy and costly mandatory minimum sentences. Thousands of offenders out on parole are reincarcerated for technical offenses, such as failing a drug test, that could more effectively — and more inexpensively — be addressed in a non-prison environment.

An NAACP report released last week is the most recent to argue convincingly that public safety can be preserved and tax dollars saved with smarter policies. The group favors, among other things, the elimination of mandatory minimums for drug crimes; diversion programs rather than incarceration for some addicts; making parole more available for those who complete educational or rehabilitation programs; and using scientific screening methods to determine good candidates for parole to better ensure that those released will be able to successfully reintegrate into society.

But the levels of incarceration are financially unsustainable and in many instances counterproductive. While money should not drive policy in this area, the country would be foolish to forgo opportunities for sensible reforms that also ease the pressure on public coffers.

recidivism slippage louisville courier journal editorial april 17 2011
Recidivism slippageLouisville Courier Journal Editorial April 17, 2011
  • The high recidivism rates cited in a new report from the Pew Center on the States are just the latest reminder of the degree to which “lock-'em-up-and-throw-away-the-key” policies were neither sensible nor economically sustainable.
  • Instead, what we got was a “prison-industrial complex,” which a few years ago saw 2 million people incarcerated in the United States — one of the highest incarceration rates in the world….
  • As for the Pew study findings, we can never know how many of the 4 of 10 recidivists from 2004 might have benefitted from alternatives to incarceration. But at least, as Adam Gelb, director of the Pew's Public Safety Performance Project, said: “What we're really starting to see now is the triumph of science over sound bites.” That's because, he added, states are relying on data to drive their corrections policies instead of tough-on-crime rhetoric.
  • And none too soon. That rhetoric has cost American taxpayers' billions — and, unfortunately, with too little bang for those big bucks
the washington legislature should legalize marijuana seattle times editorial february 18 2011
The Washington Legislature should legalize marijuanaSeattle Times Editorial February 18, 2011
  • MARIJUANA should be legalized, regulated and taxed. The push to repeal federal prohibition should come from the states, and it should begin with the state of Washington.
  • In 1998, Washington was one of the earliest to vote for medical marijuana. It was a leap of faith, and the right decision. In 2003, Seattle was one of the first places in America to vote to make simple marijuana possession the lowest police priority. That, too, was a leap of faith, and the right decision. A year ago, City Attorney Pete Holmes stopped all prosecutions for simple possession: the right decision.
maine not a crime for possession of small amounts of marijuana
Maine—Not a Crime for Possession of Small Amounts of Marijuana
  • Possession of small amounts of marijuana is a violation and no jail is possible for it:
    • A person who possesses a usable amount of marijuana commits a civil violation for which a fine of not less than $350 and not more than $600 must be adjudged for possession of up to 1 1/4 ounces of marijuana and a fine of not less than $700 and not more than $1,000 must be adjudged for possession of over 1 1/4 ounces to 2 1/2 ounces of marijuana, none of which may be suspended.
  • A new law effective January 2, 2009, reclassified possession of one ounce or less of marijuana as a violation and not a crime.
two washington legislators one republican one democrat argue for decriminalizing marijuana
Two Washington Legislators, One Republican, One Democrat, Argue for Decriminalizing Marijuana

We now have decades of proof that treating marijuana use as a crime is a failed strategy. It continues to damage the credibility of our public health officials and compromise our public safety. At a fundamental level, it has eroded our respect for the law and what it means to be charged with a criminal offense: 40 percent of Americans have tried marijuana at some point in their lives. It cannot be that 40 percent of Americans truly are criminals.

  • Jeanne Kohl-Welles & Toby Nixon, Time for Washington state to decriminalize marijuana, SEATTLE TIMES, Aug. 20, 2009, http://seattletimes.nwsource.com/html/opinion/2009701673_guests21nixon.html

Washington state should lead on marijuana legalizationSeattle City Attorney Pete Holmes argues that its time to legalize, tax and regulate marijuana. Outright prohibition isn't working. February 16, 2011

  • MARIJUANA prohibition is more than a practical failure; it has been a misuse of both taxpayer dollars and the government's authority over the people.
  • As the steward of reduced prosecutorial dollars, I am the first Seattle city attorney to stop prosecuting marijuana-possession cases and to call for the legalization, taxation and regulation of marijuana for adult recreational use.
  • …. My focus as city attorney is to ensure that we have ways to regulate the production and distribution of any potentially harmful substance so that we limit the potential risk and harm. Outright prohibition is an ineffective means of doing this.
  • Instead, I support tightening laws against driving while stoned, preventing the sale of marijuana to minors, and ensuring that anything other than small-scale noncommercial marijuana production takes place in regulated agricultural facilities — and not residential basements
marijuana legalization bill deserves a hearing seattle times editorial february 24 2011
Marijuana-legalization bill deserves a hearingSeattle Times Editorial February 24, 2011
  • REP. Mary Lou Dickerson's bill to legalize marijuana, tax it and sell it to adults through the state liquor stores — House Bill 1550 — deserves a hearing in the House Ways and Means Committee. This is the money committee, and Dickerson's bill could create a revenue stream for the state of at least $300 million a year.
  • The money is not the main reason we favor the bill. As we explained on this page last Sunday, our main reason is that we believe the costs of prohibition in police, courts, jails, gang warfare, civil liberties and blighted lives are too high, especially for a product that lends itself so well to be handled like alcohol.
  • That is an argument valid anytime. Right now there is a crisis in state spending and revenue, which makes a $300 million river of cash of immediate interest.
king county washington diversion and re licensing program
King County, Washington Diversion and Re-Licensing Program

Defenders, prosecutors, judges, and county officials were able to establish a diversion and re-licensing program for suspended driver’s license cases by building a coalition of political and judicial leaders that began with an alliance between the defenders and the prosecutors.

An evaluation of the first year of the program found that it returned $2 for every dollar spent, cut the jail population, and helped people get their licenses back.

impact of program
Impact of program
  • (1) taking these cases off of the arraignment dockets and avoiding the need for public representation, (2) eliminating any possibility of jail on these cases as a sentencing outcome, (3) eliminating the numerous court dates that result from these cases being on a criminal docket and the warrants that inevitably result from failures to appear. 
  • Preventing what was often a chronic use of the jail for warrant stays prior to adjudication on these cases.
dramatic impacts
Dramatic Impacts
  • At an estimated cost of between $1000 and $1700 a year to prosecute a misdemeanor case, imagine the savings if hundreds or even thousands of cases were diverted out of court, with no need for judges, court clerks, prosecutors, defenders, or jailers to handle those cases.