Ohio's prison population should be declining.
Reduced prisoners, and therein reduced spending was one of the major effects intended by House Bill 86, passed in 2011.
The bill essentially took a prison sentence off the table for most low-level felony offenders, instead funneling those individuals into local jail and community control programs.
And for a year, Ohio's prison population did decline, dropping below the 50,000 inmate mark for the first time since mid-2008.
But now a combination of factors-ranging from increased violent crime to delays in the implementation of the legislature to the heavy use of probation violation commitments-are causing the numbers to rise once again.
"I would say I'm disappointed that we haven't been able to reduce prison populations as intended," said Ohio Rep. Andy Thompson, R-Marietta, who was a co-sponsor of the bill.
By the numbers
Ohio prison population estimates for fiscal years
Projections for 2013 population:
Estimate as of March 2012 : 47,910
Estimate as of November 2012 : 49,735
Estimate as of August : 50,419
Change in estimates: +2,509
2014: Estimate as of March 2012: 47,435
Estimate as of November 2012: 50,214
Estimate as of August : 52,601
Change in estimates: +5,166
2015: Estimate as of March 2012: 47,249
Estimate as of November 2012 : 50,337
Estimate as of August : 52,169
Change in estimates: +4,920
2016: Estimate as of March 2012 : 46,930
Estimate as of November 2012 : 50,335
Estimate as of August : 52,595
Change in estimates: +5,665
2017: Estimate as of March 2012: 47,006
Estimate as of November 2012 : 50,367
Estimate as of August : 52,786
Change in estimates: +5,780
2018: Estimate as of March 2012 : 46,734
Estimate as of November 2012: 50,696
Estimate as of August : 52,132
Change in estimates: +5,398
2019: Estimate as of March 2012 : 46,774
Estimate as of November 2012 : 50,749
Estimate as of August : 53,484
Change in estimates: +6,710
Source: Ohio Department of Rehabilitation and Correction Bureau of Research and Evaluation.
With a current prison population of 50,368, Ohio prison's are 31 percent above capacity, and the population has crept back above the 50,347 inmates incarcerated at the end of September 2011, when House Bill 86 took effect.
At the same time, inmate releases have decreased by nearly a quarter since 2008, in spite of the bill's provisions that provided options for early release.
New population projections released by the Ohio Department of Rehabilitation and Correction Bureau of Research show that without more legislative change, those numbers will continue to rise at least through 2019.
One of the problems, said Ohio Rep. Debbie Phillips, D-Albany, is that there are too few mental health and addiction programs for the low-level drug offenders who do avoid prison because of the bill.
"I do not think the resources are there. One thing that would help would be if we're able to get the Medicaid expansion envisioned under the health care reform. That would ensure more Ohioans had access to health care, including behavioral health," she said.
Under the 2011 reform, the only fourth- and fifth-degree felony offenders eligible for prison are those who have previously been to prison, violated a bond condition, used a weapon, committed a sex crime or had a recent assault conviction. All other offenders are sentenced to a combination of local jail and community control, commonly known as probation.
But once sentenced to community control, all it takes is the smallest probation violation to open up the prison option again, noted Washington County Public Defender Ray Smith.
"You put a person on probation and you can come up with any reason to send them to prison anyway," he said.
Prison sentences for minor parole violations have not been happening locally, acknowledged Smith.
In other counties, judges have ordered prison sentences on probation violations as small as failing to show up at a scheduled meeting with a probation office, said Washington County Prosecutor Jim Schneider.
"Here, we probably would not pursue something that small," he added.
Washington County Common Pleas Court Judge Randall Burnworth agreed that he would be unlikely to sentence prison for small violations.
"You've got somebody on probation that shoplifts. Does that really mean you should be sending them to state prison? I don't think so," he said.
Probation violation commitments are possibly a contributing factor in the recent rise of fifth-degree felony commitments. Though the Department of Rehabilitation and Corrections does not track which House Bill 86 exceptions lead to fifth-degree felony commitments, a presentation given by DRC Director Gary Mohr on Aug. 29 noted that probation violators make up 23 percent of Ohio prison admissions.
While the legislation has worked on some levels, such as keeping many low-level offenders separate from their more violent prison counterparts, there are still areas for improvement within prison reform, said Ohio Sen. Bill Seitz,R-Green Township.
Seitz has worked with legislators and the DRC since 2009 on prison reform and was a driving force behind the 2011 sentencing reform.
"We're now embarked with DRC on a second round of revisiting the situation. There are more things we can do, such as expand the use of transitional control. That allows the Department of Rehabilitation to take low-risk prisoners and release them near the end of their term without approval (from the sentencing court)," said Seitz.
The DRC is also recommending a program that would give financial incentives to common pleas courts that refrained from sending their fourth- and fifth-degree felony offenders to state prison.
Based on the RECLAIM Ohio system implemented by the Ohio Department of Youth Services in 1994, the program would reallocate some DRC funding to fund local treatment options.
"The concept is money we would otherwise spend housing an inmate in one of our wonderful 'hotels' would be sent back to the local court system for improving local criminal justice capabilities," explained Seitz.
Seitz added that many common pleas court judges are skeptical that the RECLAIM model could be replicated effectively in adult courts.
However, the system has worked well for DYS. According to its website, youth commitment rates in its facilities have dropped from a high of more than 2,600 in May 1992 to less than 550 in December 2012.