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.

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."  

What's with the "E" question?

Now that Scott walker is the front runner for the Republican Presidential nomination the scramble is on to show that he's just another dumb, anti-science, white guy.  During a recent interview on a trip to London, he was asked if he believed in "E-volution."  Walker chose to punt and refused to answer the question.  Here's how I think he should have answered:

"I don't understand the question.''

"Are you referring to Micro or Macro evolution? Microevolution refers to varieties within a given type. Change happens within a group, but the descendant is clearly of the same type as the ancestor. This might better be called variation, or adaptation, but the changes are "horizontal" in effect, not "vertical." The proof of micro evolution is undeniable. For example, humans have evolved into different races and today's humans are larger than their ancestors."

"Macroevolution refers to major evolutionary changes over time, the origin of new types of organisms from previously existing, but different, ancestral types. Macroevolution remains a theory and has yet to be conclusively proven. I'll now be happy to answer any questions directly related to my qualifications for elected office." 

HERE WE GO AGAIN

It's time again to reform the reforms of the last reform. I mention this type of bad policymaking in my book and refer to California. Everyone has the answers but no one ever asks the crucial questions. In the mean time innocent people die.

In the 1995 movie Heat, Lt. Vincent Hanna, played by Al Pacino, confronts bank robber Neil McCuley, played by Robert De Niro. Hanna says to McCauley, “Seven years in Folsom. In the hole for three. McNeil before that. McNeil as tough as they say?”

I found myself feeling a twinge of pride at the mention of the place where I learned and gained so much.

If it was as tough as they say, it wasn’t because of harsh treatment from the correctional officers. They went about their thankless tasks with professionalism and dignity. Between the occasional moments of alarm and confrontations with disruptive inmates were months of peaceful interactions between staff and prisoners.

These officers never became demoralized. Part of the reason for this was because of the bonds of camaraderie we formed through our shared and lack-of-acclaim jobs. Maybe it’s because many officers were retired from the military, were more mature in years and experience, or I’m just biased, but the correctional officer force at McNeil Island was among the best, if not the best, I saw throughout my career. I’m proud to have been a part of not only the McNeil Island staff but also the Bureau of Prisons staff.

The McNeil Island prison is now long gone. In 1981, the BOP turned over operations to Washington State, and McNeil Island became a state prison. In 2011, it closed for good, marking the end of an era.

I mention this because, of all the justice components targeted by reformers, the prison system is the most maligned. Prisons are portrayed in a negative light in most, if not all, accounts available to the public. Prison guards are always portrayed as not much better, if not altogether worse, than the inmates.

There are many of us who know better, but our voices are never heard.

-From THE QUIET REVOLUTION, Shattering the myths about the American Criminal Justice System-

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