Judges, prosecutors say reducing long sentences will hurt deterrence

BRENDAN KIRBY
Staff Reporter
December 8, 2003

The releases of thousands of criminals from Alabama's overstuffed prisons will have an impact far beyond former convicts committing new offenses, judges and prosecutors predict.

Several officials said they worry that early paroles will weaken one of their best tools to deter would-be criminals who have not yet broken the law: fear.

Baldwin County Circuit Judge Robert Wilters offered James Edward Foster as Exhibit A. Wilters sentenced the 30-year-old Foley man to life in prison in October 2000 after finding him guilty of possession of cocaine. The stiff sentence resulted from Foster's criminal history, which included felony convictions for distribution of cocaine, possession of cocaine and escape, as well as cocaine possession charges that later resulted in a conviction in Monroe County.

Now, the Alabama Board of Pardons and Paroles is considering Foster for release after just three years. His hearing is scheduled for Dec. 15.

"When life means three years, you're going to have anarchy," Wilters said.

The Legislature created a second parole board earlier this year to speed the releases of inmates eligible for parole. Officials have estimated that the move could send home 5,000 to 6,000 inmates.

At the end of October, Alabama had 27,643 prisoners in a system designed for 12,378. Gov. Bob Riley said inadequate funding and court orders have forced the state to cull its prison population.

The second parole board, which includes former Baldwin County school board member Don McGriff of Daphne, ordered the release of its first batch of inmates -- 15 -- last week.

'This is crazy!':

The parole board notifies the sentencing judge, the attorney general's office, the prosecuting district attorney and law enforcement officials anytime it considers an inmate for early release.

Wilters said he objects "only on the ones that are just so far out of line that I can't stand it."

Lately, he said, he has found himself objecting more frequently. On the form notifying him of Foster's hearing, Wilters scribbled a blunt protest: "He was sentenced to Life as a habitual offender! This is crazy!"

Wilters also noted the case of Willie Lee Mays, 46, who was sentenced in September 2002 to 25 years for distribution of cocaine. The tough punishment, Wilters explained, resulted from a past conviction of receiving stolen property and the fact that the drug dealing occurred within three miles of a school and a public housing complex -- each of which increases a prison term by five years.

The parole board will consider Mays' parole at a hearing set for Jan. 6.

Recently, the board considered early release for Arthur Lewis Lawson, 33, who was sentenced to 25 years on July 18, 2000, for a first-degree theft charge. His record includes a pair of burglary convictions from Texas, a cocaine possession conviction from Baldwin County and several misdemeanor convictions. Although the board rejected the petition, pushing back the earliest Lawson can again be considered for parole to July 2005, Wilters said the inmate should not even have had the hearing.

"The last few months, it has really, in my opinion, gotten out of hand," he said. On sentences of 25 years or longer, he said, "I would want them to stay in prison at least for a little while. Two years, even three years on a 25-year sentence is ridiculous."

Prosecutors elsewhere in Alabama have made similar objections. In Lee County, home of Auburn, District Attorney Nick Abbett said he objects to paroles "pretty frequently these days."

Abbett said that early releases of habitual offenders will disrupt both the justice system and the working relationships between prosecutors and defense lawyers. He pointed to the case of James Samuel Menefield, who was sentenced to life in prison after pleading guilty in February 2000 to cocaine possession.

The plea was part of a deal that reduced the original charge of drug trafficking. Abbett said the deal was excellent from his standpoint: He got to avoid the expense and time of a trial, and since Menefield had three prior felony convictions, the sentence was enhanced to life in prison.

"If I had known they were going to consider him for parole after two years, 10 months and 29 days, I would have never agreed to the plea bargain," he said. "A system that simply revolves people round and round and round does not work."

No quota:

Riley administration officials said the state created a second parole board to speed consideration of early releases but did not set out a specific timeline or alter the factors to consider.

"We didn't give them a quota to meet," said John Matson, a spokesman for the governor. "This doesn't change the criteria. It just increases the number of people hearing the cases."

Alabama parole board members have typically heard about 180 cases a week, according to Cynthia Dillard, assistant director of the state Board of Pardons and Paroles. With the new panel that began work Monday, that case total will double, she said.

Prior to this year, the vast majority of inmates convicted of the most serious felonies and those given terms longer than 15 years could expect to serve at least a third of their sentences before receiving a chance at parole, Dillard said. But the new mandate to reduce the prison population has placed nonviolent offenders on a "special docket" to be reviewed far short of that time frame, she said.

Paroling those felons requires a unanimous vote of parole board members. Dillard said the board considers inmates' criminal histories, prison behavior and offenses for which they were sentenced.

She acknowledged that some inmates who gain early release will commit more crimes. "I think we'd be foolish to think otherwise," she said.

But Dillard said that state government has no resources at the present time to build more prisons or hire more guards.

"No one's yet come up with anything better," she said. "Tough decisions are going to have to be made, and it's not going to make anybody happy, I assure you, except for the inmate and his family."

Wilters, the Baldwin County judge, said the state should build barracks-style facilities or temporary tent camps surrounded by fences. While campaigning for governor last year, Riley floated a similar idea, but his spokesman said that it is not under consideration.

Brian Corbett, a spokesman for the Department of Corrections, said that a tent city would cost millions of dollars, because the state must provide heat, water and other utilities, feed the inmates and pay officers' salaries.

"It's not a cost-effective idea," he said.

Criteria challenged:

Wilters and some others questioned the parole board's criteria for releasing inmates. Drug dealers may not be considered violent felons, the judge said, but they do more damage to their communities than many robbers.

Much of the crime in Alabama and the country springs from substance abuse, Wilters said. The spin-off effect of a drug dealer who sells to 10 customers a day is enormous, he said.

What's more, officials do not always agree on which inmates pose a threat of violence.

"It depends on what you consider nonviolent," said Mobile County Presiding Circuit Judge Robert Kendall. "For instance, I don't consider a house burglar to be nonviolent."

Baldwin County District Attorney David Whetstone suggested that the state identify and release inmates who are old and sick. Next, he said, the state should parole inmates who are close to getting out anyway, perhaps 30 or 60 days.

Corbett, the corrections spokesman, said that the latest prison-population data offer little hope that Alabama can solve the problem by releasing the aged: The state has 617 inmates who are 60 or older. He said he does not know the number of seriously ill prisoners.

Whetstone said state officials also ought to cut back on programs designed to rehabilitate inmates. Such initiatives make sense, he said, but are less important than the system's basic mission.

"Corrections has never been very creative," he said. "The first priority of a prison system is to lock up the dangerous."

Kendall, who said he has not noticed any recent unreasonable paroles from his courtroom, expressed hope that the prison reduction can be accomplished with as little threat to the public as possible.

"It depends almost entirely on how the selection process is done," he said. "Anytime you let a person out of prison, there's always going to be a risk that they will become a repeat offender, but that can be controlled somewhat through proper screening."

Becki Goggins, a researcher at The Sentencing Institute at Auburn University Montgomery, said her sense of things is that a convict is no more likely to re-offend if he serves 10 percent of his sentence or 30 percent.

Backlash risk:

Dan Wilhelm, director of the state sentencing and corrections program at the New York-based think-tank Vera Institute of Justice, said Kentucky, Arkansas and Oklahoma have initiated mass paroles in the last 18 months to deal with overcrowding.

Wilhelm said the programs are too recent to accurately evaluate the impact on crime, but he said that the political backlash has been strong. "Most states are pretty eager to avoid doing what Alabama is contemplating doing now," he said.

Wilters said he doubts the state has enough parole officers -- even with plans to hire more over the next year -- to supervise the inmates who return to the outside. "If we don't have 4,000 go back in (to prison) within the next year, I'd be surprised," he said.

Randall Hillman, the executive director of the Alabama Office of Prosecution Services, which represents the state's prosecutors, said district attorneys oppose mass paroles.

"Who deserves to be in the joint and who doesn't? That's a critical judgment (skill) that takes years to refine, and even then, it's just a guess," he said. "It is a concern of the district attorneys that we are turning people out of the penitentiary for the sake of dollars, not because they don't deserve to be there."

Whetstone resigned himself to the new reality. "I think all of us have to understand if a man has somewhat rehabilitated himself, he's going to get out," he said.