It’s rare that we agree with a NY Times editorial. Yesterday, we came close. In a blurb titled “Recidivism’s High Cost and a Way to Cut It,” the editors said one solution to the high cost of imprisoning repeat offenders would be to adopt what Oregon’s doing, in letting its parole officers use programs and other alternatives to jail for lesser violations.
Ooh, so close.
Two problems: One, most of those who return to prison aren’t coming back on a parole violation, they’re going in because they got convicted of a whole new crime. Yes, far too many parolees get put back in for non-criminal stuff like failing to abide by arbitrary and asshole-ish conditions imposed by dickhead parole officers. But this doesn’t account for much of the actual recidivism numbers. So dealing with this isn’t going to make too big a dent in the repeat prison population.
Two, the people making the decision are still going to be the same parole boards, parole officers, and parole magistrates who are acting like assholes and dickheads in the first place. (These are obscure legal terms of art, perhaps obscure to those who do not practice criminal law. To any non-lawyers reading this, we believe the common expression would be something akin to “unthinking, tyrannical bullies.”) The problem people are the ones who are so jaded by dealing with scumbag after scumbag that they are incapable of recognizing a deserving parolee when they see one; or they are so stupid that they are incapable of reasoned discretion and cling to rote practices like a drowning man clutching a lifeline; or they are such villains that they derive satisfaction from fucking people over; or they are so righteous that they believe they are doing the right thing in fucking people over. Whichever variety you’re dealing with, they either abuse their discretion or fail to use their discretion in the first place. So giving them more discretion isn’t going to solve anything.
So okay, the NYT oversimplified, missed the real point, and offered a useless suggestion. Who cares, that’s what they always do. But this is The Criminal Lawyer, you’re saying to yourself. What do we suggest?
The biggest problem is really out of the hands of the criminal justice system. It’s people who are not deterred from committing additional crimes, and who are not rehabilitated by prison. In other words, almost everyone who commits that second crime.
The vast majority of people who pass through the criminal justice system never come back. Depending on the study, the number is something like 83% of people who get arrested for one thing or another never get arrested for anything again as long as they live. It doesn’t matter whether it’s for smoking a joint on a park bench, or for a senseless murder. The first time is the last time. The fact of a prison sentence, and the length of a prison sentence, have absolutely nothing to do with why such people never offend again. Do your own regression analysis, if you wish. Incarceration is not a meaningful variable, and has absolutely nothing to do with why people do not reoffend.
Society does not get any general deterrence from any particular prison sentence. Firstly, nobody knows about it. It’s not as if the hundreds of sentences handed down every day in NYC alone are remotely known to the general population. General deterrence comes not from specific sentences, but from a general perception that prison is something that happens to people who commit a crime.
Specific deterrence is irrelevant, because whether a person reoffends or not has nothing to do with the severity of the sentence imposed. If you’ve got someone who’s in the 17% who keep coming back, you can keep upping the sentence each time he returns, and it’s not going to deter him from doing it again.
And anyone who thinks that prison actually rehabilitates people is invited to rejoin the rest of us in the real world. You’re really missing out, come on back now.
None of this means that people cannot be rehabilitated. On the contrary, there are proven methods of rehabilitation. None of them involve prison, except perhaps as a threat to ensure compliance with the rehabilitation program. Drug courts, personal interventions, religious transformations, programs that teach people how to actually live like a normal person and get a job and be responsible (and happier as a result), all of these things have been proven to work for certain kinds of people. Everyone’s different, so there’s no one-size-fits-all solution, but for lots of people there really is a fix. And prison isn’t it.
That’s because many re-offenders only do so because of their situation. Maybe they commit crimes to feed a drug or gambling addiction, and they’ll stop if they can get on top of it. Maybe they commit crimes because of a mental illness that can be treated. Maybe they grew up and live in a community where their crimes are encouraged or enabled. Maybe they just never learned the basics of life that would enable them to live a law-abiding one. All of these things are fixable.
It must be recognized, however, that some people cannot be rehabilitated. There really are thugs out there. Those who, though they are human beings, are so damaged that they are incapable of being human. Not psychotic, merely psychopaths. Society’s rules just don’t apply. Your life has no value to them. They’ll commit crime because it’s what they want to do. They are not deterred, except by fear for their own self. They are not rehabilitated, ever. For these people — and only for these people — prison makes sense. To the extent they fear it, they are deterred from doing what they otherwise would freely choose to do. (The rest of us are well-socialized enough to merely think about it, but never do it.) At the very least, it keeps them off the street and prevents them from threatening the rest of us.
So for most people, no prison is required to get the outcome society wants (except perhaps as a threat for those who might not otherwise do what is necessary to rehabilitate). And for the very small number for whom prison is necessary, the sentencing terms our laws now apply are irrelevant. Rather than basing a prison term on the kind of crime committed, the term should instead be based on how long that person needs to be kept off the streets. Depending on the person, it might be for months, or it might be for life.
As a civilized society, we don’t like to admit it, but it’s a fact that some element of punishment is sheer retaliation. You did something bad, so now something bad is going to happen to you. Forget all the philosophical purposes of punishment like deterrence, rehabilitation, removal — even good old “eye for an eye” proportionate retribution. We’re talking about simple retaliation here. And it would be foolish to deny its existence. In fact, as a sentencing factor, it accounts for most disparities in individual sentencing.
So perhaps it ought to be taken into account more openly. More fairness in sentencing, and less unnecessary imprisonment, might result.
For example, we’ve represented clients for whom jail is really no big deal. It’s not a social stigma, and can even be a source of standing. They didn’t have the kinds of lives that would be destroyed by spending months or years behind bars. We’ve even been told point-blank by some clients that they look on a middling piece of imprisonment as a kind of vacation — they get some time away from the stresses of the real world, they don’t have to do anything, everything’s taken care of for them, and when they come out they can reset and maybe even the problems they left behind have gone away in the meantime.
On the other hand, we represent a fair number of clients for whom even the briefest stint in jail is practically a life-ender. Everything they’ve worked and striven for in their lives is over. The social and professional stigma is complete, and unredeemable. Their lives, as they know them, are over. This is not an exaggeration. It is a simple statement of fact. Not only they suffer, but their innocent families, employees, and communities suffer hugely as well.
So depending on the individual, the amount of retaliation inherent in a given sentence is going to vary dramatically. A 6-month prison sentence that would be a laughable joke for one person would be disastrous and soul-crushing for another.
Judges like to say “I’m not the one putting him in prison; you did it to yourself.” And similarly to the families, employees and others, they say it’s the defendant and not the judge who’s doing it to them. But that’s absurd. Beyond absurd, it’s an unthinking self-rationalization that’s little more than a lie. Judges with the discretion to impose something else are obviously the only ones deciding to impose prison instead. So it’s not absurd to say that judges do a disservice to society when they put someone in jail for whom the retaliatory effect is disproportionate to the harm done.
By now, it should be obvious what the criminal justice system can do to reduce repeat prison stays. It can’t do anything about those who’d never offend again. It can’t change the way people are reared (or more accurately, not reared) so that they are more likely to re-offend. It can’t do anything about the economic and social pressures in certain communities that increase the chances (or virtually guarantee) re-offense. But the system can create individualized programs that are suited to rehabilitate this particular offender. And for those who must be removed, it can create individualized sentences that take into account the threat that this particular person poses to the rest of us.
The most significant change to our system, therefore, is to do away with mandatory sentencing. Remove all mandatory minimum sentences. Get rid of them. (Sorry, Justice Thomas, but everyone else on the Court really is right to want to move in this direction. The old-time sentences that varied based on the characteristics of the individual defendant and the individual offense may have been unpredictable, but to the extent they were unfair this is not what made them so.)
Mandatory minimums are the single greatest cause of unnecessary prison stays. The vast majority of people in prison simply don’t need to be there, but the law requires it, so they’re there. The law requires it because elected politicians like to look “tough on crime,” and so they impose such minimums and then ratchet them up over time.
But sentencing courts should be given the power to hear reasons why this particular defendant is one of those for whom prison is pointless, if not counterproductive. And they should be given the discretion to sentence accordingly.
That’s really it. Simple, no?