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.