A prison space crunch amid a state budget crisis is lending urgency to legislative proposals aimed at steering drug offenders toward community treatment rather than prison time.
The House Corrections and Juvenile Justice Committee, chaired by Rep. John Rubin, is looking at a couple of bills that he said are meant to try a new approach after decades of stiff penalties spurred by the unsuccessful “War on Drugs.”
Corrections Secretary Ray Roberts has said for years that a significant portion of the state’s prison population has diagnosed mental illnesses, documented substance abuse issues or both.
Rubin, a Republican from Shawnee who is a former judge, said research has shown that treating those conditions outside of prison is cheaper and more effective in reducing re-offense rates.
“It’s obviously better for the individual if we can get them treatment in the community where possible,” Rubin said. “It’s closer to home with more supports and that sort of thing. And it’s also better for society and public safety. It’s better all the way around.”
It’s not the first time Kansas legislators have tried to steer drug users to treatment rather than prison.
A major effort in 2003 culminated in Senate Bill 123, which allowed nonviolent drug offenders to be sentenced to community corrections supervision and drug rehab.
Gary Lee, director of the substance abuse programs at Valeo Behavioral Health Care in Topeka, said that legislation has made an impact on his community.
“We’re treating nonviolent drug offenders — first-time offenders — and the recidivism rate back to prison is much, much lower,” Lee said.
Lee said he hoped the Legislature will pass the recently introduced legislation on drug sentences as well.
“I’m supportive any time we intervene on nonviolent people and get them the help they need,” Lee said. “I think it’s ridiculous to incarcerate people for smoking marijuana.”
Rubin said such sentencing proposals sometimes face resistance from fellow conservative Republicans who say they are “tough on crime” and espouse a “lock ’em up and throw away the key” philosophy.
But with the state’s prisons over capacity, no extra money in the budget and other bills already proposed to increase the penalties for things like burglary, something has to give.
“You’ve got two choices,” Rubin said he tells his colleagues who are opposed to drug sentencing reform. “Either raise taxes so you can build more prison beds, or have our overcrowding problem explode to where we wind up subject to a federal court order to release dangerous felons early to free up prison bed space, like California’s under. Now that’s what’s soft on crime, because some of these people need to stay there.”
As legislators across the country face similar choices, people from different places on the political spectrum are finding common ground on sentencing reform.
Conservative billionaire Charles Koch, a Wichita resident and Republican mega-donor, said last year he’s making sentencing reform a top priority. His philanthropic institute offered a seminar on the topic titled “Reaching the Tipping Point” at a Congressional office building in November.
Kansas, like many states, is reaching that tipping point where the state must start incarcerating fewer people or build more prison space.
The state prison system’s capacity is 9,582. Jeremy Barclay, a spokesman for the Kansas Department of Corrections, said 9,612 people were serving time in state prisons last week.
Barclay said drug offenses were the most serious charges against 18.1 percent of those in the system.
The measures that the House corrections committee is considering have the potential to free up some of those beds.
This week Rubin’s committee unanimously approved House Bill 2049, which would make possession of a small amount of marijuana a felony after the third offense rather than the second.
Under current state law, the second conviction for marijuana possession is a Level 5 felony on the sentencing grid that can carry with it a prison term of up to 42 months.
When told last week that was the penalty, Rep. Tom Moxley, a Republican from Council Grove, expressed shock.
“How did we get to a Level 5 felony on a product that is used in 27 states legally for medicative purposes?” Moxley asked.
“That’s what the Legislature has deemed it to be,” answered Scott Schultz, executive director of the Kansas Sentencing Commission.
According to the sentencing commission, 448 people were convicted of a second marijuana possession charge last year and 45 were sentenced to prison terms. The rest received probation or community supervision under SB 123.
Rep. Boog Highberger, a Democrat from Lawrence, said he would prefer legalization of marijuana possession similar to Colorado law, but voted for HB 2049 as a smarter use of state resources.
He pointed to a fiscal note that estimates the bill will save the Kansas Department of Corrections more than $1 million per year by fiscal year 2017.
“I really didn’t know how much we were spending incarcerating people for simple marijuana possession,” Highberger said. “Given our current budget situation, it’s a pretty significant number.”
Diversion program for drug offenders
The corrections committee also held a hearing on House Bill 2052, which would allow prosecutors to seek diversions, coupled with drug treatment programs, for drug possession crimes.
The diversions would not count against offenders’ criminal records unless they reoffend, a change that Lee said would make it easier for them to find jobs after completing drug treatment.
Jennifer Roth, who represents criminal defense attorneys in Kansas, told the committee her organization would prefer that the diversions allowed for in the bill not count against offenders’ criminal records after they reoffend. She said state law currently treats no other diversions that way, except for diversions for driving while intoxicated.
Rubin said after the hearing that he thinks having that provision in the bill will make it more likely for prosecutors to actually use the diversion program for drug offenders.
Even with that clause in the bill, Roth said she was happy to see the focus turning to treatment rather than incarceration for low-level drug crimes.
She said the Department of Corrections does not have enough resources to treat all of the substance abusers in state prisons. A program set up to grant early release to offenders who complete treatment was never funded, she said.
“That’s always troubled me,” Roth said. “Just another argument for keeping people in the community to get those services.”
Lee, who has been at Valeo for 30 years, said treating drug addiction has always been a “low priority” for the state judging by the amount of money appropriated for treatment programs.
But he says there seems to be a growing realization that putting people with a drug addiction in prison does not solve their problems.
“When they leave prison, unless they die there, they’re going to be in our communities,” Lee said.
Andy Marso is a reporter for KHI News Service in Topeka, a partner in the Heartland Health Monitor team.