Wednesday, August 29, 2018

Prison reform and the US justice system

I note that there's a push to get a prison reform bill through Congress by the end of the year.  I'll be the first to applaud if they can produce a workable solution to the present problems in the prison system:  but I think they're starting from the wrong end.  The problem isn't so much prisons as what happens to criminals before they get there.  I've written at some length about it in my memoir of prison chaplaincy.

For those who haven't read the book, here are a few important points (out of many) for consideration.

First, the present justice system does almost nothing to deter youth crime, and punishments amount to little more than a slap on the wrist.  Young criminals get used to "getting away with it", and grow up with the impression that they can do almost anything, and not be punished.  However, the instant they can be tried as adults for the same crime(s), the boom comes down on them.  I've lost count of the number of furiously angry felons who complained to me that they committed crimes for years without serious punishment, and then, in some arbitrary and capricious fashion, "the system" or "the man" nailed them for a five-to-ten stretch for doing exactly the same thing.  They couldn't understand that (in part because the so-called "education" system had failed to educate them at all), and were bitter and hate-filled as a result.  It was perfectly obvious that they'd failed to learn anything in prison, except better criminal skills from their fellow convicts.

Second, the methods and practices of incarceration have to be improved.  Other societies imprison a vastly smaller proportion of their population, and have a much lower recidivism rate (i.e. the rate at which a criminal re-offends after release) than ours.  For the past few decades, the US recidivism rate has been about 70% over five years.  In other words, seven out of ten criminals released from our prisons will have committed more crimes (sometimes a lot more crimes) by that time.  That demonstrates individual tendencies, to be sure, but it also demonstrates that rehabilitation programs in prison are so much hot air.  We have to find a better way to help inmates change.  Some won't, of course;  but others will, if they're given sufficient incentive to want to change.  It takes the carrot as well as the stick.

Third, there needs to be a mechanism in the justice system whereby those who supervise criminals in prison can monitor their behavior, record (objectively and fairly) their progress (if any), and go back to court if necessary to inform a judge that the felon in question has been a hard-case behind bars, has not shown any improvement, and/or has refused to participate meaningfully in rehabilitation programs.  He's therefore considered likely to re-offend, and should thus continue to be incarcerated until he does show progress.  That won't stop all recidivism, but it should go a long way towards reducing it.  Civil libertarians will bleat that this is unfair to the prisoner.  My response is, what about the victims of the crimes he's very (very!) likely to commit once he's out?  Don't they deserve the "fairness" of being protected from that risk?

Fourth, we have to reform the system of trial and sentencing.  Right now, a vast number of people are caught up in a judicial "sausage machine", processed from one end to the other without any meaningful consideration as to whether they belong there.  Plea bargains are common;  a truly dangerous criminal might plead down a serious assault that left his victim in hospital, perhaps even crippled for life, to a simple assault charge, because it's simply too much hassle for the overworked, overloaded District Attorney's office to line up witnesses, try the case, and get a more appropriate punishment.  The DA needs to use his limited staff and resources to cover far too many cases, so he'll take a plea deal that doesn't punish the criminal as he or she deserves, simply in order to free up his resources to work on other cases.  About 95% of all felony charges in the USA end up in plea bargains like this.  That's not "justice" at all - that's gaming the system.

Fifth, criminal laws have to be reformed too.  In many cases, legislatures pass laws inflicting harsh punishment for certain crimes on the basis of emotion or knee-jerk reaction, rather than logic.  (Example:  until very recently, dealing in crack cocaine rocks drew a much heavier prison sentence than dealing in cocaine powder, even though the drug in both cases was exactly the same.)  Many crimes are classified as felonies when they should, in fact, be only misdemeanors.  The laws are tweaked to produce the result lawmakers and/or their electorates want, without stopping to ask whether or not that's been effective in the past, and whether or not it's likely to be effective in the future.  The result is that the US imprisons a much larger proportion of its population than any other nation in the civilized world - and its taxpayers have to carry the enormous costs of doing so.  That's simply unsustainable.

There are many other elements of prison reform, and I've tried to address them in my book;  but those areas have to be dealt with before we'll see any real progress.



Ray - SoCal said...

Great points, I had not thought about the youth issue. There seems to be the idea that those under 18 are innocent angels, with some bad luck, that can be rehabilitated.

Plea bargaining, over charging, and prosecution misconduct are issues. Judicial immunity is another problem. Along with the 3 felonies a day, where everyone’s guilty of something.

I’m still working through your book, it’s a hard read for me.

Beans said...

Heinlein talked about this in his books often, calling these times "The Crazy Years."

Penalizing does need to be reformed. Getting rid of, or fixing, the Plea Bargain system is a must. Working at a local PD, in charge of following cases after the arrest, it was disgusting to watch career criminals game the system and obviously using criminally acquired cash and assets to pay for big-time lawyers.

As to juveniles, our system is way to soft on them. I've been around 12 year olds whose hearts are darker, and more adult, than many actual adults. It is truly scary looking into the eyes of a child sociopath, knowing that that child already knows how to get its way.

We need to reduce drastically the number of laws, making the individual crime classification easier to understand. Assault with a weapon is Assault with a weapon, no matter what the weapon is. Get rid of 'Hate' crimes, unless they are evenly applied across the board.

And, quite frankly, change the prosecutors' office. Make it not the same for clearance rate by conviction as by plea.

As to prison reform, well, make it so that those who don't conform and don't follow the rules actually get punished and punished properly. What motivation is there to be good when the evil ones have just as much access to services, special treats, snacks, tv, as the ones who are trying to be better? And treat crimes committed behind bars as new crimes, which enhance the criminal's punishment or extend the criminal's time. Actions should have consequences.

Rob said...

We have a justice industry here in America, a lot of people make a good living locking people up & keeping the prisons full. Tax dollars that not too many folks balk at spending.

waepnedmann said...

I spent twelve years working with juvenile offenders in the California judicial system.
A program was widely used to address behavioral problems while the juveniles were incarcerated.
They had a variable commitment program: If they followed the rules they got out on their minimum, if they did not follow the rules their stay would increase up to an amount until they reached their maximum sentence.
This was and is a basic carrot or stick behavior modification program.
Sometimes it worked sometimes it did not.
The recetivism rate was about 80%.
Our juvenile justice system is based on behavior modification when it should be based on character modification.
Unfortunately the traditional processes of character building are now frowned upon by TPTB.
And as soon as they turned eighteen they were instantly cleansed and cured, with the stroke of a pen they underwent a judicial baptism and became adults with all of he behaviors that got them locked up as juveniles.
I see them on the local news as being arrested for sundry and various crimes.
I have been surprised not to have seen a number of them make the national news as participants in a multi-state homicide spree.

Cedar said...

Just saw a news report that a prison here in Ohio has at least 24 people - prisoners, guards, nurses... down from some sort of 'drug bomb' that poisoned them with what they think is fentanyl.

Dave said...

Just out of curiousity, but from your perspective as a former prison chaplain, what do you think of bringing back some forms of corporal punishment (flogging, caning, etc) for some crimes?

Peter said...

@Dave: It used to be that corporal punishment was considered something shameful. Someone who was caned in school, for example, would frequently be caned again by his parents when he got home, for letting down the family by doing something bad enough to warrant such punishment.

Nowadays... not so much. Punishment is something to flaunt on Twitter, or brag about - "I got more detention than you did!". A lot of that may be because of single-parent families, or families involving remarriage, where two sets of kids join together in a new household. Kids from one parent may object vehemently to being physically punished by a parent who's no blood relation to them. Add to that the "nanny state" and its suspicions about child mistreatment or molestation, and you've got a no-win situation for corporal punishment in any formal setting like the justice system. The roots for it are no longer there in society.

I might add that if my parents raised me today the way they did when I was a child, both of them would undoubtedly be in prison for child abuse and assault. It was a different world back then...

Nate Winchester said...

First let me just say that I work in the criminal justice system now and agree with pretty much 90% of this.

Second, the methods and practices of incarceration have to be improved. Other societies imprison a vastly smaller proportion of their population, and have a much lower recidivism rate (i.e. the rate at which a criminal re-offends after release) than ours. For the past few decades, the US recidivism rate has been about 70% over five years. In other words, seven out of ten criminals released from our prisons will have committed more crimes (sometimes a lot more crimes) by that time. That demonstrates individual tendencies, to be sure, but it also demonstrates that rehabilitation programs in prison are so much hot air. We have to find a better way to help inmates change. Some won't, of course; but others will, if they're given sufficient incentive to want to change. It takes the carrot as well as the stick.

The catch here is... 1) we're a lot more diverse than those other countries. Pick your favorite and then let's compare the crime rates of that country to people descended from there over here for apples to apples. 2) Given the recent immigration efforts, I wouldn't be so sure those other countries are still maintaining their low recidivism rates. In fact, haven't you pointed this out before?

Thinking about culture, how it works and its goals, it may very well be that more diversity is a recipe for more crime. Jonah Goldberg has talked about this before, I forget his term but it was about the grey area of civil society. Basically society has to punish deviance somehow, and part of that is defining how far deviance can go before crossing the punishment threshold. A common culture and understand among a people can have a lot of latitude in punishments before the law is involved. Like you brought up above, a delinquent might just be brought home to his father rather than tossed in the slammer (and if you were raised right, you felt that jail would be the preferable punishment). Well as the culture fractures, that grey space in which to operate slowly vanishes and eventually all you're left with is the law.

Maybe we'll need to have a serious discussion as a nation over whether two goals - less prisons & greater variety of people are mutually exclusive. I honestly don't know, but it does make you wonder.

As for myself, I say some version of chain gains need to be brought back (though not cruel). Get the inmates outside working. Take them to construction sites where they might just pick up a trade skill and even make some connections with legit folks so when they get out, they have a better chance of being employable. Not to mention if the job is hard enough, they'll be too exhausted at the end of the day to cause trouble in the jail (watch rape rates drop). Heck let's make it even more fair. Attach to the punishment a price tag for the harm the crook inflicted on the state. Let them know that they can either serve X number of years, or they can work and will be released as soon as they produce that $ value. We could probably build the southern wall in under year with that system.

Yes obviously that system can be abused. That's the point of committees is to have everyone figure out where the exploits in the system are and try to close the loopholes.

Ray - SoCal said...

Single parent households breeds a lot of problems. Removing the marriage penalty from benefits. I hear so much on how mothers get more money by not being married. Unfortunately society pays with increased criminal behavior of their kids.

Drugs abuse also causes a lot of issues. Meth is one I believe I’ve seen the impact of.

Public Education is another area causing problems.

Technomad said...

The War on Drugs does enormous damage. Get rid of it, and the incaraceration rate will plummet.

And I should point out that the differential penalties for crack and powder cocaine were called for by black politicians and officials, who were desperate that something be done about the problems crack caused.

Eric Wilner said...

From what I know (or think I know), I tend to concur across the board. And I still need to get around to reading the book - some heavy reading for when I find myself with a large chunk of time for it.
I've been wondering for some years now about the utility, and indeed the point, of punitive incarceration (as opposed to incarceration intended to keep truly dangerous individuals out of circulation, be it a night in the drunk tank or life in maximum security).
This line of thought was brought on by a report of some celebrity felon being given a date to report to prison to begin serving a multi-year sentence. Hello? If he's dangerous, why is he being left at large in the meantime? And if he's not dangerous, why are we spending all this money to lock him up, eventually releasing him minus a few years of his life (minus also all the things he'll be unable to maintain while in prison - home, family, non-criminal social network, and so on)? How about a public flogging plus restitution (assuming there was even a victim to whom restitution might be owed)?
Then figure in my observation, over the years, that the authorities don't seem inclined to pursue, e.g., career scam artists with no fixed abode, or money-laundering operations catering to illegal aliens, while legitimate businesses are subject to ever-more-restrictive laws. It's almost like protecting the general public is not the point.

Nate Winchester said...

Eric I've been to small county jails which allowed people to schedule their sentence. The perp in question would work or go to school during the week then sit in the jail for the weekend until the sentence was served.