Problems of Oregon’s “Alternative Incarceration Program”

Below is a long but necessary review of Oregon’s Alternative Incarceration Program by Crime Victims United.

Oregon’s “Alternative Incarceration Program” (AIP) provides intensive treatment of criminals. The Oregon Department of Corrections (DOC) runs it. Inmates who graduate from the program are released from prison early. AIP was created by the Oregon Legislature in 1994 and expanded in 2003 through House Bill 2647.

AIP comprises three programs: the SUMMIT program at the Shutter Creek Correctional Institution in North Bend, the New Directions program for men at the Powder River Correctional Institution in Baker City and the Turning Point program for women at the Coffee Creek Correctional Institution in Wilsonville. The programs treat inmates for drug and alcohol addiction and attempt to address criminal thinking and behavioral problems.

The SUMMIT program started in 1994. It graduates approximately 225 inmates per year. The New Directions and Turning Point programs were created following the passage of House Bill 2467 in the 2003 legislative session. New Directions serves 350 men per year and Turning Point serves 100 women per year.

The programs consist of 6 months of intensive treatment in prison followed by three months of “transitional leave” which is spent in the community. Participants who are deemed to have successfully completed the program receive early release from prison. According to DOC’s “Alternative Incarceration Programs” flyer, the average reduction is 13 months. However some reductions are much larger and the AIP reduction is in addition to a 20 percent “earned time” reduction.

Prisoners are eligible to enter the program when they have 45 months remaining on their sentence. DOC calls this 36 months because they assume that the inmate will receive 20 percent earned time. In the extreme case, a prisoner admitted at 45 months who graduates from the program will be released from prison 6 months later, 39 months before the nominal end of the sentence, having served 13.3 percent of the sentence. In practice, AIP graduates have been released after serving approximately 25 percent to 75 percent of their sentences.

Measure 11 prisoners and those convicted of felony sex offenses other than attempts are not eligible. The sentencing judge can also bar participation if there is a substantial and compelling reason to do so. Among eligible prisoners are those convicted of burglaries, identity thefts, drug manufacturing and distribution, attempted rapes, DUII crashes that leaves victims maimed, and criminally negligent homicides.

The McMinnville News-Register reported on outcomes of the two new components of AIP. 2,698 inmates were selected for the programs since their inception. 1,125 graduated from the program. 1,404 failed. The remainder were still on transitional leave.

EXAMPLE CASES

Several AIP cases have been highlighted in the press.

Former Eugene Police Officer Juan Lara was sentenced to 68 months in prison for harassment, coercion, public indecency and official misconduct for using his position to coerce seven women into sex. He was admitted to the SUMMIT program and was released 36 months early.

Timothy Joseph Boyd, a prolific property criminal with 49 convictions, was sentenced to 61 months for forgery, identity theft, stealing a car and using fraudulent Oregon driver’s licenses. He was admitted to AIP and was released 38 months early.

Amy Stack was sentenced to 24 months for hit-and-run. On August 10, 2004, Stack hit and killed 18-year-old bicyclist Robin Jensen. Stack fled the scene. She turned herself in several days later. Evidence that she had been drinking was not admitted in court. A jury unanimously found Stack guilty of hit-and-run. In a separate finding, they unanimously found that her actions represented extreme indifference to the value of human life. This aggravating factor gave Judge Locke Williams authority to double the presumptive 18 month sentence to 36 months. Judge Williams sentenced Stack to 24 months. She was admitted to AIP and was released from prison after serving 9 months, 15 months early.
Claims of Effectiveness

As of this writing, the only available study of AIP’s effectiveness is a DOC “Research Brief” from March, 2006. The brief describes a study that compared AIP graduates to a comparison group selected to match various characteristics of the AIP cohort over a six month period. The brief says:

“Inmates completing the Summit program at Shutter Creek showed a small improvement in recidivism over the comparison group; however the change was not sufficient to attain the level of statistical significance.”

“Inmates completing the New Directions program at Powder River showed a statistically significant improvement in recidivism rates over the comparison group.”

“Early data shows that the New Directions AIP at Powder River has a significant effect on reducing recidivism, particularly in the early post-prison supervision period. However, it must be stressed that this data is preliminary.”

DOC officials have been quoted in the press as saying that they found a 35 percent reduction in recidivism among New Directions graduates compared to the comparison group. This number is easily misinterpreted. At a March, 2006 hearing of the Joint Committee on the Judiciary, DOC reported a 12 percent rate of recidivism among New Directions graduates over a six month period versus an 18 percent rate for the comparison group. The difference, 6 percent, is one-third of the 18 percent for the comparison group. In DOC’s terminology, this six percent difference would be reported as a 33 percent decrease in recidivism.

Nothing in the DOC study demonstrated or claimed a connection between early release from prison and reduced recidivism.
Critique of DOC’s Study

There are two serious flaws in DOC’s methodology.

First, DOC used a comparison group selected to match the AIP participants instead of a randomly-selected control group. The comparison group is selected from inmates left over after AIP participants have been selected, that is, after the best apples have been removed from the barrel. The fact that the members of the comparison group were not selected for AIP raises the question of whether they are truly comparable.

In order to have a high level of confidence in the study, a true control group must be used. For example, if a program has 100 slots, 200 eligible candidates would be selected. Then 100 AIP participants would be chosen at random. The remaining 100 would be the control group. This would ensure that the two groups are truly comparable and the study would have the credibility that comes from methodological rigor.

An objection is sometimes raised that random selection of participants is unethical. This is wrong. Studies of pharmaceuticals routinely use random selection in matters of life and death. A drug study that did not use random selection would be considered lacking in credibility and the same should hold for studies of correctional programs.

The second flaw in DOC’s methodology is that they apparently compare only “inmates completing the program” to the comparison group. This indicates that inmates who flunked out of AIP were not counted. By considering program graduates only, the study culled out the less-motivated AIP participants but less-motivated members of the comparison group were not culled out.

Such cleansing of the treatment group is widely recognized as methodologically invalid. The definitive metastudy of drug courts, the 2005 report to Congress from the Government Accountability Office, explains why this practice is wrong. Critiquing earlier metastudies, they write (emphasis added):

“Some did not use designs that compared all drug court program participants – including graduates, those still active, and dropouts – with similar nonparticipants. For example, they compared the outcomes of participants who completed the program with the outcomes of those who did not (that is, dropouts). These evaluations, upon finding that program graduates had better outcomes than dropouts, have concluded that drug court programs are effective. This is a likely overestimation of the positive effects of the intervention because the evaluation is comparing successes to failures, rather than all participants to nonparticipants.”

The problem with the DOC study is that it did not compare all participants to nonparticipants.

To use the apple barrel analogy, DOC first selected the best apples for AIP. They then selected the comparison group from what was left over. Next they selected the best of the best from the AIP barrel by eliminating those who flunked out. The result is that the comparison group is not comparable at all and the study results can not be trusted.
The Truth-In-Sentencing Issue

In previous decades, most states employed “indeterminate” criminal sentencing systems. Judges pronounced long sentences in court but the actual time served was determined by parole boards. Most criminals served a fraction of the pronounced sentence. In Oregon, because of indeterminate sentencing and an unwillingness to respond to skyrocketing crime by building new prisons, it was commonplace for criminals sentenced to five years for serious assaults to be paroled after six months and for murderers sentenced to life in prison to be paroled after serving less than 10 years.

These paroled criminals often committed new crimes, often with devastating impact to innocent citizens. This created a tidal wave of backlash against the criminal justice system and widespread calls for truth-in-sentencing. In the 1970’s and 1980’s, the federal government and nearly all states abandoned indeterminate sentencing in favor of “determinate” systems in which the time served bore some resemblance to the sentence pronounced. Oregon was one of the last states to do this when the sentencing guidelines system replaced the parole system in November of 1989.

In 1999, voters reaffirmed the commitment to truth-in-sentencing by approving Measure 74, a constitutional amendment which required that sentences pronounced in court could not be changed except through a new court proceeding.

For the ordinary person, truth is an absolute concept. Criminals sentenced under Oregon’s sentencing guidelines can receive up to 20 percent earned time reductions. Among most criminal justice practitioners, this is still considered consistent with truth-in-sentencing.

Now we add the Alternative Incarceration Program under which inmates can receive reductions as high as 86.6 percent. A review of Yamhill County AIP cases published by the McMinnville News-Register (August 17, 2006) showed total time served ranging from 73 percent of the sentence down to 23 percent. On average, Yamhill County AIP participants served 48 percent of their sentences.

Such reductions have been attacked as antithetical to truth-in-sentencing. AIP supporters dispute this, saying that the trial judge must state that the convicted criminal is allowed to participate in alternative programs. As reported by the Register-Guard (12/17/2005), in the case of Eugene police officer Juan Lara who used his office to coerce seven women into sex, Judge Charles Carlson ordered that Lara be “considered … for any form of temporary leave from custody, reduction in sentence, work release, alternative incarceration program or program of conditional or supervised release authorized by law for which the defendant is eligible at the time of sentencing.” This is more a hint about the truth than an explicit statement of it. Prosecutors, legislators, the press and victims were shocked when Lara was released 24 months before the end of the sentence pronounced in court. Their shock becomes understandable when you read HB 2647 which does not explicitly mention sentence reductions.

AIP supporters also argue that eligibility for AIP is determined by judges who have the flexibility to restrict an offender’s participation and limit the sentence reduction to a stipulated amount of time. However judges’ flexibility in this regard is severely constrained because current law requires “substantial and compelling reasons” to restrict participation. This is a very high standard as shown by the case of Amy Stack. Despite a jury finding that she exhibited “extreme indifference to the value of human life”, Judge Williams refused the prosecutor’s plea to exclude her from AIP. As a result, the 24 month sentence he pronounced was a fiction – Stack served only 9 months.
The Rationale For Early Release

In his September 4, 2006 op-ed supporting AIP, State Representative Wayne Krieger wrote: “Allowing time reductions in select sentences is a strong incentive for offenders to turn their lives around.”

We wonder why the chance to turn your life around is not incentive enough. And why the 20 percent earned-time reduction available in all sentencing guidelines cases is not sufficient. Why is 6 months a sufficient incentive for one AIP participant while 37 months is required for another? Why should criminals who received longer sentences because they committed more and worse crimes receive larger AIP reductions than criminals who received shorter sentences because they committed fewer crimes?

Even if you accept that an additional incentive is needed, it is hard to imagine a credible rationale for why a flat six months reduction should not be sufficient.
Crime Victims United’s Position

Crime Victims United believes that AIP is damaging the credibility of Oregon’s criminal justice system. We are drifting back to the repudiated indeterminate sentencing system of earlier decades. This drift will bring a return to the widespread contempt for the criminal justice system that previously prevailed among criminals, victims, and law-abiding citizens. Credibility is hard won but easily squandered.

AIP is leaving victims with a sense of abandonment, especially in cases involving serious physical injury or death.

We do not object to the treatment component of AIP, although we feel it should be subjected to more rigorous evaluation. What we object to is the linking of treatment with sentence reductions, especially with huge sentence reductions and especially in cases involving extreme trauma to victims.

Our preference is that the sentence-reduction aspect of AIP be removed completely. However we recognize that politically and practically this is unlikely to happen. Therefore we have developed proposals for modifications which will eliminate the more egregious aspects of the program.

Proposals For Modifications To AIP

After speaking with victims, district attorneys, corrections officials and legislators, we have developed a list of proposed changes. Our conversations are ongoing and we reserve the right to alter this list.

1. Exclude inmates whose crimes involved a death (e.g., DUII homicide).

2. Exclude inmates whose crimes involved serious injury (e.g., DUII crash leaving the victim maimed, brain-damaged or paralyzed).

3. Exclude inmates whose crimes involved registerable sex offenses (e.g., Attempted Rape).

4. Exclude inmates who have previously participated in AIP.

5. Stop the practice of awarding earned time before it is earned.

6. Set a cap on the maximum sentence reduction.

7. Require that judges find substantial and compelling reasons to allow participation in AIP replacing current law which requires substantial and compelling reasons to bar participation.

8. Require judges to explicitly set and announce in open court the minimum time to be served.

9. Require that the transitional leave period be spent in Oregon, not in the inmate’s home state.

Sources:

House Bill 2647

-Oregon Department of Corrections: “Alternative Incarceration Programs”
-Oregon Department of Corrections: Research Brief R1-DOC/PA:3/7/06
-U.S. Government Accountability Office: “Adult Drug Courts”, February 2005
-McMinnville News-Register: 8/17/2006, 8/19/2006, 9/9/2006, 9/12/2006
-Eugene Register-Guard: 1/15/2004, 12/17/2005, 5/31/2006, 8/29/2006
– The Oregonian: 8/8/2006, 9/4/2006