Even a cursory look at the American criminal justice system will show it does not work. America locks up too many people for too long. We do little to prepare them for their release. Then we lock up more than half of them again and again.
We spend an exorbitant amount of money on a system that does not work and then argue that we lack the funds to make it cheaper and more efficient. And, too few of us have any idea of how it might be fixed.
Part of the problem stems from the relative invisibility of lawbreakers. When people are convicted and sent away, they are out of the public eye, so we forget about them until they are released. Then we brand them, refuse to hire them, and are shocked when they are arrested and end up in prison again.
The obstacles to reform have seemed insurmountable until quite recently. For decades, liberals and conservatives talked past each other. Liberals seemed only interested in the criminals and how they are treated; conservatives were viewed as interested only in punishing wrongdoers.
A declining violent crime rate, soaring incarceration costs, and empirical evidence have finally allowed policymakers to move beyond rhetoric. Liberals and conservatives are at long last beginning to work together in support of measures to improve a system that is not only failing in its mission, but is actually making the problem it is intended to fix worse. A wave of legislative reforms adopted in Texas, Georgia, Mississippi, and other states have resulted from bipartisan cooperation that would have been impossible even a decade ago.
The criminal justice system — the web of laws regulating conduct in a free society and the enforcement of those laws — exists to maximize the ability of citizens to live without fear. Punishing lawbreakers in the most humane and cost effective ways possible is a means to that end.
Of course, we need to imprison some wrongdoers lest they harm their fellow citizens, but a well-run society locks away only those who need to be kept off the streets — lest the innocent get caught up in the system. Once caught, those arrested, convicted, and incarcerated should be treated humanely and prepared to return to communities as responsible and productive citizens.
These goals are simply not being met. While we condemn the public stocks erected in the village square, we tolerate more than 4,500 federal offenses on the books along with thousands of state statutes that allow us to arrest, prosecute, and lock up anyone who runs afoul of them. Something is fundamentally wrong with a criminal justice system that imprisons millions of men, women, and even children for more crimes than any of us can imagine or count, subjects them to terrible conditions in overcrowded prisons that tend to harden them for far longer than necessary, and creates barriers that minimize their chances of succeeding once outside. The system has mushroomed over the years and no one remembers why or how this happened.
In some states, taxpayers spend more on prisons than on school systems. Prison guards see prisoners not as people, but as a source of money and jobs. Prosecutors prosper by “throwing the book” at lawbreakers who might benefit from alternative treatment. And legislators show just how tough they are by criminalizing more activities that had previously been merely frowned upon.
The Department of Justice report on the atmosphere in Ferguson, Mo., made it clear that police were aggressively citing residents for technical violations of local laws and regulations not to make Ferguson a safe place to live and work, but to add to city coffers. Similarly, the New York City Police Department officers responsible for the death of Eric Garner over cigarettes were not attempting to maintain safety and order in that instance. Rather, they were using deadly force to enforce laws designed to raise money for the city. In Chicago, the 300 traffic cameras installed “to make the city’s streets safer” have done nothing of the sort, but are extracting $70 million annually from Chicago drivers. The purpose of criminal laws is to keep people safe, not to make money off them.
We like to believe we are a nation whose citizens live under “the rule of law.” Yet if honest people are required to obey thousands of laws that make no sense to them, the police who arrest them, or the men and women who prosecute and punish them, then we all live under the tyranny of arbitrary prosecution.
James Madison drew a clear distinction in Federalist No. 62:
It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed.
Madison would likely be appalled at the state of our laws today. Too many criminal justice system actors forget that their primary mission is not to put people in jail, but to see justice done. My Right on Crime colleague and former Prison Fellowship director, Pat Nolan, has often stated that we need to stop locking people up who simply do not need to be locked up. That requires a full review of our laws and alternatives to incarceration.
Americans tend to overreact to problems in our effort to solve them. Ideology and good intentions, rather than a true understanding of what works and what does not, has guided and poisoned political discussions of criminal justice. In the 1970s, when crime and violence were escalating, some liberal judges blamed crime on societal shortcomings rather than the criminals themselves. They seemed willing to release even the violent and obviously guilty back onto the streets. Politicians reacted by demanding harsher and longer sentences, and enacting mandatory minimum and “three strikes you’re out” laws, stripping all judges of the authority to tailor the punishment to fit the crime. During this same period abuses within the nation’s mental health care system resulted in the closing of treatment facilities and the virtual dismantling of the system, leaving millions of at-risk men and women to their own devices. How can we move forward? One major way: rebuild the nation’s mental health system — this would do far more to decrease incarceration than decriminalizing marijuana. We must also reduce the number of crimes on the books, reduce the number of crimes punishable by prison, and undertake other reforms.
Six concrete suggestions:
- Rebuild and strengthen the nation’s mental health care system by ensuring the mentally ill are treated in hospitals or public treatment centers. Today in every single state, more people diagnosed as mentally ill are in jails and prisons than in hospitals or treatment centers. Penal institutions do not treat mental illness and in fact exacerbate illnesses. One in five of those incarcerated suffer from severe mental problems that should best be treated elsewhere. The failure of the mental health care system to help the mentally ill accounts for as many as 1,000 homicides and 3,000 suicides each year. Some states have made progress. In New York, “Kendra’s Law” requires people with severe mental problems to take prescribed medications. It has had a demonstrated empirical impact on crime, violence, and recidivism.
- Reduce the number of criminal offenses. The number of criminal acts in the United States is mind-boggling. But it is only a fraction of the actual offenses that can lead to criminal sanctions. There are thousands of state and federal regulations that carry criminal penalties without being explicitly labeled as crimes. Those should be identified and modified.
- Reduce the number of crimes punishable by prison. People who do not pose a realistic threat to society, especially nonviolent lawbreakers, should be punished with alternative sanctions, such as mental and health treatment or probation. Kentucky, for example, has a program to send heroin addicts to treatment, not lock them up.
- Revise mandatory minimum and three strikes laws that keep people in prison far longer than necessary. Very long terms are expensive, do not serve a public safety purpose, and make it difficult to readjust to freedom.
- Reform how and when people on probation and parole get sent back to prison. States can follow the model of Hawaii’s Opportunity Probation with Enforcement (“HOPE”) program. HOPE has had a remarkable impact on recidivism and incarceration. Judge Steve Alm, a former U.S. Attorney, found that a plurality of the court’s work involved sending people back to prison for parole and probation violations. By instituting a system of fair, swift, and certain punishment for such violations, Judge Alm changed the behavior of those previously viewed as incorrigible. Other states are replicating this success, and more states can follow suit.
- Reduce the stigma attached to those who have served their time. Some repeat offenders deserve their return visit, but many are almost forced into a life outside the law by circumstances resulting from their first arrest, conviction and sentence. There was a time when one “paid” his or her “debt to society” and could move on, but technology, the type of jobs now available, and the institutional safeguards put in place by many businesses and their insurers has made that more difficult.
Meaningful reform is possible and happening in some places. Prison splits families, produces negative role models, and reduces family incomes. Incarceration can cost more than $100,000 per year, more than an Ivy League education. That our country allows this system to then get away with saying there is no money for training or treatment is laughable and deeply saddening. Once a prisoner is released, successfully reentering society requires a fresh perspective and whatever retooling and retraining we can assess and provide.
Jails and prisons are here to stay and truly dangerous lawbreakers deserve long sentences. But this should not obscure the fact that much can and should be done to improve the system. If there was ever a system that required a comprehensive overhaul, it is our criminal justice system.
Click here to read the entire book, Solutions: American Leaders Speak Out On Criminal Justice.