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A different view of the justice system

Tuesday, June 16, 2015


News about a pair of escaped killers from a New York state prison and the subsequent manhunt exposes an unstated paradox about the value of prisons in our society.  The ensuing fear among the local populace begs an important question.

Which one thing is more crucial, a prison's recidivism rate or its escape rate?  Given media publicity and people’s reaction, it seems escape rate would garner more votes.  Recidivism however is the standard.

It’s time to admit that recidivism is a flawed success measure.  It tells us very little other than the fact that a person hasn’t returned to prison.  Is it because they reformed or didn’t get caught?  We know that a person can avoid incarceration for a variety of reasons, including witness intimidation, while continuing to victimize.

Measuring recidivism results from an unrealistic mission thrust upon prisons by a group of religious zealots more than two hundred years ago.  In 1790, American Quakers in Philadelphia established a new type of prison.  The Walnut Street Jail reformed the way punishment was administered in our country.  Inmates were to be rehabilitated through penance (hence the term penitentiary), and abstinence from alcohol.  The Bible was the only reading material allowed.

A mission, developed more than two hundred years ago to redeem drunkards and social misfits, remains to this day.  Churches are not held responsible if they don’t turn sinners into saints.  Hospitals are not held responsible if they fail to cure someone of cancer or severe bodily trauma.  Prisons however are condemned for not turning criminals into responsible citizens.

It seems we ask too much of prisons.  We ask them to succeed where other social institutions have failed.  We ask them to make people accept social norms they’ve rejected and ridiculed.  An institution with an outdated mission and judged by invalid measures will always be proclaimed a failure.

We instinctively know the value of prisons.  People who are securely confined don’t prey on our communities. Reducing victimization should trump reducing recidivism.

After the Attica Prison uprising of 1971, the National Institute of Corrections (NIC) was created and ushered in a new era of reform.  The success has been phenomenal.  Thanks to new architectural designs, better staff training, classification systems, and management methods promoted by the NIC, prisons have become much more peaceful in the past 30 years.  Between 1980 and 2003 the state prison homicide rate dropped from 54.0 per 100,000 inmates to an astounding 5.7 per 100,000.   This occurred despite an inmate population explosion.

The direct supervision model of institution design and management, promoted by NIC, focuses on managing the environment and can be viewed as a microcosm of community-oriented policing in prison and jail.  Officers are in constant and direct contact with inmates and get to know them so they can respond to trouble before it escalates into violence.  Negotiation and communication become more important staff skills than brute force.

It seems that prison reformers should rejoice at such good news but they persist as if nothing’s changed since 1971.  Prisons must be managed humanely, and constitutionally, plus provide education, vocational training and other treatment options, including community transition.  However they should not be held responsible if a people return to crime after their release.  Personal behavior is linked to personal responsibility.  

We should realize that incarceration is our least used option.  The vast majority of our corrections population (more than 80% in some states) is under community supervision rather than locked up.  Contrary to what we’re often told, we spend ten times more on education and on public welfare than on prisons. 

We’re also told that prisons hold scores of non-violent, low level offenders.  A person’s current offense doesn’t paint a complete picture of criminal history, circumstances of the crime, or plea-bargaining.  Al Capone’s only major conviction was for tax evasion and he had a history of illegal booze violations.

Reformers want to be “smart on crime” but they demand that the system do what it already does.  The vast majority of offenders are under community supervision.  We spend a lot more on education and social welfare than on prisons and those that are locked up are generally the ones that should be.

It’s time to realize that the criminal justice system shouldn’t be a gatekeeper for prisons.  It should confront and prevent crime.  Workable strategies should be developed in concert with citizens, social services, faith groups and others at the neighborhood level.  This bottom up approach is better than the current top down approach of legislative and court action favored by reformers.

We need justice reform but we won’t succeed by focusing on the wrong problems and proposing flawed solutions.  The criminal justice system should be evaluated by its ability to protect the community rather than on its success at redeeming souls.

Thursday, June 4, 2015

The "Scopes Monkey Trial" Facts vs Fiction

In the debate between supporters of Darwin's theory of evolution and the "ignorant anti-science" masses, the Scopes Monkey Trial is probably the most iconic symbol of the struggle.  Many, if not most, of those familiar with the trial base their knowledge on the 1960 film Inherit the Wind.  As with any Hollywood production, the historical facts tend to be discarded in favor of entertainment.

According to the film version, an honorable and brave high school biology teacher is thrown in jail and prosecuted for teaching evolution.  The action is in response to the mob mentality of Christian fundamentalist who want him lynched  for daring to teach contrary to the holy scriptures.   

The real story of the trial is told by Edward Larson in his book Summer for the Gods and he describes a publicity stunt created by the ACLU in New York and by the civic leaders of Dayton Tennessee, the town where the trial was held.  Dayton's leaders wanted to drum up publicity for the town and Scopes was a willing participant in the scheme.  Scopes never spent a minute in jail and was good friends with the prosecutor.  He was a substitute teacher, not a biology teacher, and had never taught evolution.  After the trial, the school offered to renew Scopes' teaching contract.

In the summer of 1925, Darwin's theory of evolution was a hot issue. Margaret Sanger (founder of Planned Parenthood) was using the topic of natural selection to justify her pet cause of eugenics.  Eugenics was also taken up by the militarists in Germany (Nazis) as a way to develop a master race.  The most important "expert witnesses" the defense considered calling were proponents of forced eugenics.  

In 1925 a few states had passed laws prohibiting the teaching of evolution but none of them attached any punishment to the violation.  Tennessee's law was a misdemeanor and upon signing it the Governor had declared that it could never be enforced.  It may very well have remained that way but for the idea of a native New Yorker who'd recently moved to Dayton.  George Rappleyyea had read in a newspaper that the ACLU was offering to defend any Tennessee teacher who violated the law.

Rappleyea decided this would be an excellent way for Dayton to get national publicity and he took the idea to the town leadership assembled at the local drugstore. The town leaders agreed this would be an excellent way to put the town on the map.  Even the school superintendent, who had supported the law, liked the idea.  The ACLU subsequently signed on and agreed to pay the costs for the prosecution and the defense.

All they needed now was a teacher who would admit to having taught evolution and a prosecutor willing to take the case.  One of the town's prosecutors was friends with a 24 year old substitute teacher, John Scopes, who sometimes taught biology.  There was only a small problem.  Scopes couldn't remember if he'd ever taught evolution.  

The pharmacist pulled a popular biology book off his shelf, Hunter's Civic Biology, and asked Scopes if he had ever used it to prepare for class when he substituted for the regular biology teacher.  Scopes replied that he had and the pharmacists excitedly proclaimed that the book mentioned evolution and Scopes could be their defendant.  

Scopes cheerfully admitted to violating the law and a warrant for his arrest was sworn out.  The school superintendent excitedly proclaimed that "Something has happened that's going to put Dayton on the Map!"

Publicity flyers were soon rushed to New York announcing the trial on evolution.  Both defense and prosecution were eager to get the case to trial before another town beat them to the punch and stole their glory.  Two well known blowhards were hired to represent both sides-William Jennings Bryan for the prosecution and Clarence Darrow for the defense.

Dayton civic leaders formed a Scopes Trial Entertainment Committee to plan activities around the trial.   Tents were erected for shows and extra trains were requested for the expected crowds.   A carnival atmosphere engulfed the town.  Shop windows displayed monkeys and the sheriff put a sign on his motorcycle that said "Monkeyville Police."  

The trial itself was excellent theatre with both sides playing their parts dramatically.  Scopes was eventually found guilty of the misdemeanor and given a $100 fine, which Bryan offered to pay.  The Tennessee Supreme Court upheld the law but threw out the conviction on a technicality.  Scopes called the dismissal of his conviction a "disappointment."  Meanwhile the ACLU sought to have another trial challenging any anti-evolution law in any state.  There were no takers.  

To this day many people bring up the specter of the Scopes Monkey Trial to portray "anti-science, Christian fundamentalist, yahoos" run amok.   

Monday, June 1, 2015

Political Unity for Criminal Justice Reform.  Cause to Rejoice?

People from across the political spectrum have joined together in a rare case of unity on the issue of criminal justice reform.  This is both promising and discouraging at the same time.  It’s promising because our justice system needs change and improvement but it’s discouraging because current efforts follow the same tired design as previous attempts. 

As always, “mass incarceration” is branded as the primary problem.  Too much incarceration as a basis for criminal justice reform is as misguided as too much hospitalization as a basis for healthcare reform.  Intentionally reducing incarceration will not improve the system but will potentially do more harm than good.

What’s being discussed is more legislation to amend sentencing laws and create better responses to crime.  “Better” meaning those that don’t result in incarceration.  This reactive approach of making the system kinder and gentler or meaner and harsher (depending on the political climate) on offenders after they commit a crime keeps us in a perpetual state of conflict and distraction from real solutions. 

Punishment and rehabilitation are two sides of the same coin—the individual offender and the best responses to their actions.  This focus on the offender rather than on a holistic view of community safety is a major part of the problem.  Policies designed to be tough on crime, soft on crime, and the latest “smart on crime” really have nothing to do with crime at all.

The reason we don’t have an effective crime policy is that we think we’re discussing crime when were actually talking about individual criminal behavior.  The inability to distinguish the two keeps us constantly debating about the best ways to respond to criminal acts.  We then throw money at the perceived problem or expend political capital in order to generate more and better programs rather than effective strategies.

Crime is the host environment in which criminal acts occur.  Crime can be identified by specific locations within communities and geographic boundaries.  Proactive strategies to prevent, confront, and reduce crime can then be devised.  Those strategies must be implemented from the ground up at the neighborhood level rather than the current top down approach from legislatures and courts.

California started reducing its prison population in 2011 because of a court order and Proposition 47.  The November 2014 voter approved proposition reduces penalties for certain crimes and reclassifies from felonies to misdemeanors other “non-serious and non-violent property and drug crimes”.  These changes were in response to California’s perceived mass incarceration and prison crowding problem.

After releasing thousands of inmates in response to the court order, property and violent crimes increased in 40 of California's 69 largest cities in the first six months of 2012, the largest such increase in 20 years.  Remaining to be seen is the full effect of implementing the citizens’ demands of Proposition 47.

No one considered that California, like the rest of our country, has about 70% of its corrections population under community supervision rather than in prisons.  The real corrections crowding is in community corrections where probation officers struggle with huge caseloads making effective supervision virtually impossible.

California fits a national reform narrative stating that in addition to mass incarceration prisons hold large numbers of “non-violent offenders” who can and should be released.  This raises several questions. 

Should we never incarcerate non-violent offenders such as burglars, swindlers, and others?  What exactly is a non-violent offender?  Someone who committed a non-violent crime?  Is it someone who committed a non-violent crime but with a history of violence?  Or is it someone who committed a violent crime that was plea-bargained down to a non-violent crime? 

Daron Wint, who was arrested for the quadruple murder of a Washington DC family and their housekeeper was convicted of assaulting a girlfriend in Maryland in 2009.  He then pleaded guilty the next year to malicious destruction of property (a non-violent crime) after he allegedly threatened to kill a woman and her infant daughter, breaking into her apartment, stealing a television and vandalizing her car.

Also in 2010, Wint was arrested carrying a 2-foot-long machete and a BB pistol outside the American Iron Works headquarters, but weapons charges were dropped after he pleaded guilty to possessing an open container of alcohol (another non-violent crime).

The point is that a person’s current offense doesn’t paint a complete picture of the offender.  It’s dishonest to suggest that our prisons are filled with non-violent offenders guilty of only drug violations.  Al Capone’s only major sentence was for tax evasion and he had a history of illegal booze violations.

These things are never taken into account by policymakers and reformers working to reduce prison crowding by releasing scores of “non-violent” and “low-level” offenders.  The criminal justice reform movement is essentially an anti-incarceration movement.  Rather than fashioning a system to create and maintain safer communities it strives to make the system a gatekeeper for prisons.

The term “mass incarceration” is meaningless.  The fact is that incarceration in our country is an alternative sanction.  We have the vast majority of offenders (more than 80% in some states) under community supervision rather than locked up.  Within a corrections population of about 7 million, close to 5 million are under community supervision.  Probation alone comprises about 4 million. 

Reformers don’t seem to understand that calling for greater use of alternative sentences is demanding that the system do what it’s already doing. 

With our attention focused on the relatively few in prison (compared to the entire corrections population) we loose sight of the overall picture.  This causes reliance on a flawed success measure--recidivism.  The fact that someone hasn’t returned to prison tells us very little.  Is it because they've reformed or is it because they haven't gotten caught?   Someone can continue to victimize others while avoiding incarceration.

Our fixation on recidivism creates problems.  Probation and parole officers are often instructed not to revoke anyone until they murder or seriously harm someone.  With certain offenders, numerous crimes can be prevented by certain and swift recommitment—even for minor offenses. 

Reducing recidivism is extremely easy.  Simply have probation and parole officers stop revoking anyone until they kill at least two people.   Judges likewise shouldn’t sentence ex-cons to prison until they kill at least two people.  The recidivism rate would plummet, but at what cost?

The system needs to change its focus away from the individual offender.  It should strive to create and maintain safer communities by confronting and preventing crime rather than strive to reduce or increase incarceration.  It must be evaluated on its reduction of victimization rather than reduction of recidivism.  Punishment and rehabilitation must be viewed as means toward the goal rather than as solutions.   We should have a more valuable system rather than a costlier or cheaper one.
This means the system doesn’t need reformation.  It needs transformation.  Transformation is different from perpetual reform efforts that simply change the pendulum swing from punishment to rehabilitation.

Misguided policy is often the result of “panels of experts” providing policymakers answers to problems.  That’s all well and good.  We have to realize however that it’s not about the answers.  It’s about asking the crucial questions.  We must start asking those questions now.