Paul Gessing’s Testimony on Free Market Criminal Justice Reforms

Testimony Before Courts, Corrections, and Justice Interim Committee
Friday, August 23rd, 9am, Room 322

Rep. Gail Chasey, Co-Chair
Sen. Richard C. Martinez, Co-Chair


Good morning Madame and Mr. Co-Chair, members of the Committee. My name is Paul Gessing, I’m President of the Rio Grande Foundation, New Mexico’s free market public research institute or think tank. We’re based in Albuquerque, NM. Thank you for inviting me to participate in this hearing.

I’ll be the first to admit that I am not an expert on criminal justice issues. That said, criminal justice issues are by definition economic issues. New Mexico’s economic policies are the bread and butter issues of my organization. Criminal justice policies impact the economy in three major ways:

1. Direct spending on the criminal justice system including everything from police to prisons;

2. Foregone revenues including everything from potential taxes paid (or not paid) by those who are incarcerated or unable to find work due to their criminal records to the economic potential to tax drugs like marijuana;

3. Lost economic growth due to crime/inadequate public safety.

While I don’t consider myself an expert on criminal justice issues, I am one of the original signatories of the Right on Crime statement of principles. This statement has now received support from 54 conservative leaders across the nation.

The basic premise is that the traditional “lock em up” mentality that has historically dominated conservative thinking on crime is too expensive and lacking in effectiveness to continue without a serious re-evaluation of the goals, tactics, and fiscal implications of our criminal justice policies.


To be clear, New Mexico is historically not a state that has followed conservative criminal justice policies. Incarceration rates, for example, are far lower here than they are in most surrounding states. That does not mean that New Mexico policymakers are doing everything right or as cost-effectively as possible, it just means that “lock em up” has not been the criminal justice model in New Mexico as it has been in Texas, for example. That also doesn’t mean that policymakers in our state can’t learn something from what other states are doing on criminal justice issues.

Let’s start with some data. I have provided the Committee with a regional breakdown of the 2012 Peace Index which is put together by an organization called Vision of Humanity. The most notable aspect of this data for New Mexico is the high rates of homicides and violent crime (and relatively low rates of incarceration, lower than any state in the region besides Utah).

The crime problem in New Mexico is not limited to violent crime. According to 2011 data from the FBI’s Uniform Crime Reports, New Mexico has relatively high rates of property crime relative to the rest of the region. Notably, the entire southwest region has relatively high rates of most crimes.

Personally, as a resident of Albuquerque’s West Side, I can attest to the fact that crime can be a blot on life in New Mexico. Having lived for 8.5 years in Washington, DC and its inner-suburbs with no problems, I have witnessed a drive by shooting in my neighborhood and our car has been broken into as well. One of my former employees, Paige McKenzie was beaten within an inch of her life on the side of a road in Bernalillo.

My family and I love New Mexico and can’t see moving, but more timid souls might have simply left. This is lost talent and lost economic activity for our businesses and our economy. Worse, those people tell their friends and put their message on social media. Word spreads.

But I’m not here to say we need to spend more money on criminal justice or even that hiring more police is the answer. Rather, I think we need to re-deploy resources to improve our justice system in ways that keep violent offenders behind bars, rehabilitate those who can be rehabilitated, keep those who are not real threats in the workforce and involved with their families, and reduce contact with the criminal justice system among those who have no need to be involved in it at all.

There are some specific ways to reduce crime and/or reduce the costs of criminal justice at the same time. These have been outlined in Rio Grande Foundation policy papers including the 2009 “Criminal Justice Policy in New Mexico: Keys to Controlling Costs and Protecting Public Safety” and an opinion piece “Reforms can cut costs, improve public safety.”

1. Drug Courts: New Mexico has 853 inmates incarcerated for drug possession.

Drug courts are a proven alternative to incarceration for low level drug offenders. Drug courts offer intensive judicial oversight of offenders combined with mandatory drug testing and escalating sanctions for failure to comply. According to the National Association of Drug Court Professionals, the average recidivism rate for those who complete drug court is between 4 percent and 29 percent, in contrast to 48 percent for those who do not participate in a drug court program. Similarly, the General Accounting Office reported recidivism reductions of 10 to 30 percentage points below the comparison group.

A 2006 California study found drug courts cost less than $3,000 per participant, far cheaper than prison.12 New Mexico has 35 drug courts in 25 of 33 counties, which have processed 9,500 offenders since 1994. The recidivism rate of New Mexico drug courts is 11.9 percent. A New Mexico Sentencing Commission study of the Bernalillo County Metropolitan DWI Drug Court found graduates were one-third as likely to recidivate as comparable offenders who did not participate in the drug court.13 As recommended in the June 2008 report by Governor Bill Richardson’s Task Force on Prison Reform, New Mexico can benefit further from the expansion of drug courts.

If we assume that half of these drug possession offenders should not be eligible for diversion from prison because they had large quantities of drugs that are associated with dealing or have too many prior offenses, New Mexico could still save $13.2 million based on the state’s $31,000 annual per-prisoner cost of incarceration.

2. Another source of potentially significant savings lies in diverting from prison probationers and parolees who are revoked for technical violations of their supervision, not new offenses. In 2008, there were 413 such revocations to prison. Instead, New Mexico could use a graduated sanctions matrix that relies more on intermediate sanctions such as curfews, electronic monitoring, supervised work crews, and short periods of incarceration in county jails. If this diverted just half of this pool of offenders, it would save $6.4 million.

3. Law Enforcement Assisted Diversion (LEAD), otherwise known as pre-booking diversion:

Law Enforcement Assisted Diversion identifies low-level drug offenders for whom probable cause exists for an arrest and redirects them from jail and prosecution by immediately providing linkages to treatment and social supports including harm reduction and intensive case management. By diverting eligible individuals to services, LEAD is committed to improving public safety and public order, and reducing the criminal behavior of people who participate in the program.

4. Research has proven that treatment is effective. In Arizona which also implemented this policy more than a decade ago, a study by the Arizona Supreme Court found that 77 percent of drug offenders got clean as a result of the treatment. The national Drug Abuse Treatment Outcome Survey of 10,000 participants found that residential treatment resulted in a 50 percent reduction in drug use and 61 percent reduction in crime while outpatient treatment resulted in a 50 percent reduction in drug use and 37 percent reduction in crime. Dr. Nora Volkow, Director of the National Institute on Drug Abuse (NIDA), stated, “Research findings show unequivocally that drug treatment works and that this is true even for individuals who enter treatment under legal mandate.”

Performance-Based Probation Funding: In December 2008, Arizona implemented performance-based probation funding. Under this incentive-based approach which has not been adopted in New Mexico, probation departments receive a share of the state’s savings from less incarceration when they reduce their revocations to prison without increasing probationers’ convictions for new offenses. The probation departments are required to reinvest the additional funds in victim services, substance abuse treatment, and strategies to improve community supervision and reduce recidivism.

Unlike Arizona, New Mexico has one unified, statewide probation and parole department. The Pew Center on the States Public Safety Performance Project recommends that a performance based probation funding system appropriate 30 percent of savings from a reduced revocation rate to the department and an additional 5 percent if the department demonstrates improvement in employment, drug test results, and victim restitution collection. Although results of Arizona’s measure are not yet available, Ohio adopted a somewhat similar funding policy called RECLAIM

(Reasoned and Equitable Community and Local Alternative to Incarceration of Minors) that gives money to counties that treat juveniles who would otherwise be incarcerated and deducts funds for low-risk juveniles who are sent to state facilities. The policy has been highly successful, as the recidivism rate for moderate risk youth placed through RECLAIM was 22 percent, compared with a
54 percent rate for such offenders in state lockups.

5. New Mexico can also join 36 other states by implementing a policy to release geriatric inmates who are no longer a danger to the public. Such inmates are even more expensive to incarcerate due to health care costs.

Based on Oklahoma’s experience, 17 infirm New Mexico inmates could be released every year on geriatric parole with savings of $844,594, which assumes a higher $50,000 incarceration cost per year that is supported by research on geriatric inmate medical costs. Geriatric inmates have a recidivism rate of less than five percent and not a single participant in Oklahoma’s model program has committed a new offense.

6. Finally, more halfway houses would provide an alternative for the 130 inmates who have been paroled but \await release because they lack housing. A halfway house costs only $25 a day, while prison is $85 a day. Assuming 120 days of time at a halfway house instead of prison, this policy would save $936,000.

7. Some other reforms would provide long-term benefits by making it more likely that ex-offenders will become productive members of society rather than career criminals going through prison’s revolving door. Currently, 41 percent of New Mexico probationers and parolees are employed. Employed ex-offenders are three times less likely to re-offend. One barrier to employment is that New Mexico employers have been held liable for negligent hiring of employees with questionable backgrounds.

The Urban Institute noted, “The high probability of losing coupled with the magnitude of settlement awards suggest that fear of litigation may substantially deter employers from hiring applicants with criminal history records.” That fear is not without basis. Employers lose 72 percent of negligent hiring cases with an average settlement of more than $1.6 million. New Mexico can address this by immunizing employers from such suits – suits should be permitted for failure to supervise but not merely for hiring an ex-offender.

8. Barriers for Nonviolent Ex-Offenders to Obtain Occupational Licenses: Under the New Mexico Criminal Offender Employment Act, even convictions not directly related to the occupation are grounds for ineligibility. One solution is to allow ex-offenders to obtain provisional licenses that are valid for a shorter period of time and subject to immediate revocation if they commit a new offense, violate a term of probation or parole, or violate a rule of the occupation. Such provisional licenses provide a positive incentive for success while still holding the ex offender accountable.

Texas lawmakers enacted House Bill 963 in 2009 authorizing provisional licenses. The legislation specifies that a provisional license becomes a permanent license after six months if the license holder is in full compliance.

The Rio Grande Foundation has done considerable work on the issue of occupational licenses. While we’d love to see a reduction in their number, scope, and expense, the very least we can do from a criminal justice standpoint is to not throw up additional barriers in front of ex-offenders.

9. Use of Private Facilities. The recent decline in New Mexico’s prison population coupled with the potential of many the proposals outlined here for controlling the demand for prison beds should render the current capacity adequate. However, to the extent new capacity is needed at some point, expanding an existing private prison would be the most economical solution. Private prisons are proven to be less costly to operate.

A Rio Grande Foundation study examined per-prisoner department of corrections budgets across 46 states and found that states with at least 5 percent of their prison population in private prisons spent about $4,804 less per prisoner in 2001 than states without any private prisons.

The study further found that cost savings increase along with the percentage of inmates in private facilities. For example, New Mexico was calculated to save more than $50 million as a result of having 45 percent of its inmates in private prisons. Similarly, a December 2007 study by Vanderbilt University researchers found that states with a higher percentage of inmates in private facilities had lower public prison costs per inmate, suggesting that competition drives efficiencies in state-run prisons.

10. On this point, I want to clarify that the views here are my own and those of the Rio Grande Foundation, not Right on Crime. According to Harvard Economist Jeffrey Miron who visited New Mexico earlier this year, completely legalizing and taxing marijuana would result in total savings/revenue increase of $52 million annually. $33 million of that would come from reduced expenditures. Were New Mexico to tax marijuana at a reasonable rate that maximized profits, it would collect approximately $19 million annually. In essence, we could pay the total operating and infrastructure costs of the RailRunner and have a few million left over for those balloon payments coming down the road.

Barring such an aggressive approach, it is certainly worth considering HB 465 as introduced by Rep. Kane and passed the House during the 2013 legislative session. The Fiscal Impact Report for the bill was inconclusive in terms of cost-savings, but they would seem to be significant.


I have laid out for you 10 points on criminal justice issues that could be considered by those of all political stripes when dealing with criminal justice issues.

Each of these proposals, if adopted, would:

• Reduce direct spending on the criminal justice system including everything from police to prisons;

• Increase potential taxes paid into the system;

• Reduce lost economic growth due to serious crime issues/inadequate public safety.

I hope you’ll carefully consider these ideas and consider them in a bi-partisan manner.