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A different view of the justice system

Monday, April 27, 2015

The Yogi Berra Approach to Criminal Justice Reform

The great New York Yankees catcher, Yogi Berra, was once asked why he no longer went to Ruggeri's, a St. Louis restaurant.  He's reply was a classic in what became known as  "Yogiisms."

"Nobody goes there anymore. It's too crowded."
The American public developed an affectionate soft spot for the unassuming sports hero and his non-pendantic musings.  He made sense without making any sense--a rare gift indeed. Yogiisms are uniquely suited to the master himself but policy makers should steer clear of attempting to model their work using the same logic.  The current approach to criminal justice reform is a good example.

Criminal justice system reform is itself a type of misnomer.  The reform efforts are not focused so much on the justice system as they are on prisons.  The ultimate goal of the work is to reduce incarceration and prison crowding.  The problem with this approach is that the results are always the same.  After people finish congratulating themselves for changing laws designed to send fewer people to prison they create a situation resulting in no one ever going there anymore (prison) because it's too crowded.

Next comes the reforms to reform the reforms.  The prisons are still as over crowded as or not that much different than before.  Even if changes result in fewer people going to prison and the state closes a few institutions, those that remain open are eventually designated over crowded and in need of further reform.   The reform industry never lacks business.

The reason for this is because of focusing on the wrong problem.   The problem isn't that we have too many people incarcerated and not enough alternatives to incarceration.  The fact is that we have the vast majority of offenders (more than eighty percent in some states) under community supervision rather than locked up.  Continuous calls from reformers for greater use of "alternatives to incarceration" are thus demands that the system do what it's already doing and has been doing for decades.

In the last two to three decades states have implemented what are known as intermediate sanctions or intermediate punishments.  These are correctional programs somewhere between the intense control of incarceration and the lax control of probation.  These programs include things like house arrest with or without electronic monitoring, work release programs, and day reporting centers where offenders spend part of the day receiving drug treatment and various needed social services.

These are intended to be diversion programs to divert people away from incarceration but what happens too often is that not many people are actually diverted, at least not from prison.  Since the vast majority of offenders are under community supervision and more specifically probation, most cases diverted to these programs would have ended up on probation if the programs were not available.   The criteria for acceptance into these programs also favors those who would otherwise end up on probation.   The prison population thus remains roughly the same while legislators can claim that "nobody goes there anymore."  

Criminal justice reform will remain spinning its wheels in an endless cycle of repeating its prior attempts to improve the system unless it focuses on the true nature of the problem.   The system doesn't need more alternatives to incarceration because incarceration, in our country, is an alternative sanction.  Within a corrections population of about seven million, about five million are under community supervision.  Probation alone makes up about four and one half million of the community supervision population.

It seems that what we need are alternatives to probation because probation is the preferred sanction in our country.  With Conservatives, Liberals, and Libertarians joining forces in a rare case of unity around criminal justice reform, we seem to be approaching a fork in the road regarding how to approach the problem.  And as the master once said:  "When you come to a fork in the road, take it."  

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