Decarcerating America Page 4
Next to age, prior history is arguably the single most important predictor of recidivism. However, we must always be cognizant of how punishment-imperative-era policies have contributed to amplifying the power of this predictor in the lives of some. The growing school-to-prison-pipeline literature demonstrates that in some communities, starting at a very young age, school behavior is being used to identify “trouble” kids who are then increasingly surveilled and routinely disciplined.14 As in the adult realm, most violent juvenile offending involves mundane, simple acts like an after-school street fight, rather than an elaborate plan to go on a shooting spree. The problem, however, is that school conduct problems and after-school street fights are being used by schools and juvenile justice systems to build a case for surveilling these youth and as an argument for targeting their schools and communities. With the advent of zero-tolerance policies, these kids quickly find themselves on the road to school suspension and eventual expulsion, and all signs suggest those roads lead directly or indirectly to prison.15
Schoolyard fights are being used in many ways as habitual offender policies are used later in the criminal career trajectory, essentially adding first, second, and third strikes for some when others are not getting any strikes at all. We have created the stereotypes of the street thug and that of the infamous superpredator, and the power of these profiles to create images that resonate should not be denied. Until we shift policies that control the labeling of some youth as dangerous, would-be criminal offenders, we will continue to provide support for the argument that the usual suspects really do deserve prison.
Six (Not-So) Radical Policies for Rapid Decarceration
Rates of incarceration have some effect on rates of crime; however, most of the leading scholars suggest that the impact is modest.16 Analyses of the relationship between crime and incarceration have attributed between 10 and 25 percent of the crime decline to the rise in imprisonment rates.17 It is no secret that crime has fallen precipitously over the past two decades, creating a historical moment where crime is at about the same rate it was in the 1970s (see Figure 1.1). We no longer need an incarceration rate five times higher than it was in that era.
Figure 1.1: U.S. Crime and Incarceration Rates 1930–2014
We offer six principles for effectively ending mass incarceration in the next decade.
Bold Reform #1: Don’t Send People to Prison for Drug Crimes
One of the least controversial of our proposals is to stop sending people to prison for drug crimes. The supply-side criminal justice approach to drug interdiction taken in the war on drugs has not made a dent in the demand for drugs. A public health approach to drug use would refocus the efforts on addressing the problems of substance abuse and addiction that drive the demand for illegal drugs in the first place. As America confronts its latest drug crisis—the current opioid epidemic—Americans are increasingly willing to see drugs and drug addiction as a public health issue and not as a criminal justice issue. The shifting attitudes likely in part reflect the reality that opioid addiction is as prominent in middle-class suburban communities as it is in inner-city communities.18
Regardless of the reason for the shift, it is the case that, for the most part (and except in the federal system), drug offenders go to prison for very short terms anyway. Drug offenders are the quintessential offenders who cycle from communities to prisons and back again. For example, almost half of Ohio’s prison admissions serve less than a year and are released.19 This cycling of offenders into and out of prisons has its own damaging effects, which are beyond the scope of this chapter and which have been documented extensively elsewhere.20 Needless to say, churning drug offenders into and out of prisons where treatment options are few and post-release outcomes are dismal has done little to address the underlying problem of drug addiction and demand. Nor can cycling drug offenders into and out of prisons affect rates of drug availability given the well-known phenomenon of replacement in drug markets (for every drug dealer who goes to prison, there are several at the ready to take his place).
Keeping drug offenders out of prisons and beginning to address drug use and addiction as a public health issue could mean that upward of 400,000 prisoners are dealt with through means other than incarceration. Almost 100,000 of those are the drug offenders who make up more than 50 percent of the federal prison population (see Table 1.1). It is often assumed that these are the drug kingpins of the world, but research demonstrates relatively few (less than 6 percent) of those serving time in prisons for drug offenses are actually involved in mid-level or high-level drug operations.21 It is time that we recognize the limits of the war on drugs and begin treating drug use and abuse as a public health problem that cannot be solved by a criminal justice response. Indeed, most of the serious reform efforts to date have focused on undoing some of the policies most closely associated with the war on drugs, and while this is surely a good start, it is not and will not be enough. If we released all currently incarcerated drug offenders, we would still boast an incarceration rate among the highest in the world, with more than a million people in prison for offenses other than drugs.
Bold Reform #2: Eliminate Mandatory Sentences
Mandatory sentences need to be eliminated and not just for drug offenses, but for all offenses, including violent offenses. Two arguments are made on behalf of mandatory penalties—increasing deterrence and reducing sentence disparity.
Evidence has mounted that the sentencing stage of the justice system is not the best place to enhance deterrence. Studies show that deterrence is best achieved by swift and certain sanctions rather than severe ones. By the time a case reaches sentencing, swiftness has long been a moot issue. Certainty is related more to the likelihood of apprehension than it is the likelihood of a severe penalty. A recent review by the National Academy of Sciences concluded there is no evidence that mandatory penalties imposed at sentencing have much deterrent value, and given what we know about deterrence, it is likely that their value in producing it is near zero.22
It has always been a myth that mandatory sentences have reduced disparities. They have simply hampered our ability to detect disparities easily because the decisions that affect the ultimate sentence occur long before the offender shows up in court, when the prosecutor decides whether and how to charge an offense. The United States Sentencing Commission was established by the Sentencing Reform Act of 1984 under the auspices of bringing more fairness and certainty to sentencing and addressing disparities in criminal justice sentencing. Less than a decade after being established, however, the commission found that the application of mandatory minimum sentencing was tied directly to the race of the defendant, “where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum.”23 Marc Mauer, a leading expert on sentencing policy, contends that mandatory sentences have produced such disparities because (1) America’s drug war was waged on communities of color and policing efforts were concentrated in those communities, and (2) mandatory policies are often based on prior convictions, and defendants of color are more likely to have prior criminal justice records than their white counterparts.24 In other words, the disparities that mandatory sentences were intended to address had little effect because decision points at earlier stages were so crucial in determining who faced the mandatory penalties to begin with.
Bold Reform #3: Bring Down the Length of All Sentences
If all currently prescribed sentence lengths were multiplied by a factor of 0.3, we would get a scale of penalties that look more like those seen in the rest of the world, and much more the way sentencing across the United States looked prior to the 1980s. Sentences beyond ten years should be rare. Sentences of life should be eliminated. There should be no such thing as life without the possibility of parole. Without question, even a short stay in prison is damaging to a person’s life prospects in ways that have been extensively documented.25 Lengthy sentences only magnify these detrimental effects.
The observation that penalties
in the United States are extreme by comparison to other democracies has been made by many writers. Recently Michael Tonry pointed out that the long sentences in the United States are the cornerstone of its high rates of incarceration.26 For example, the United States currently has more than 150,000 people serving life sentences, a kind of permanent prison population today that is close to the total number of prisoners in 1970.27
U.S. sentences were not always outside international norms. A rash of sentencing “reforms” in the 1980s and 1990s are the reason our sentences are so high today compared to most of the rest of the world. This means that the United States does not need a “new” sentencing regime, but rather a simple return to normative regimes of the past.
Sentencing is only part of the problem—the core issue is length of stay. It is worth noting that sentences imposed by judges have flattened in recent years, but actual time served on those sentences has significantly increased. In order to truly reduce sentences to meaningful levels, the mechanisms of release from prison, such as parole, early release, and special release, must also be activated in ways that maintain meaningful reductions in length of stay.
Bold Reform #4: Reduce or Eliminate Recidivism Enhancements
Recidivism rates are high. They always have been, and until we take sustained approaches to long-term crime prevention more seriously, they always will be. Before the 1980s, judges sentencing individual offenders standing before them typically sentenced a repeat offender to a longer term than they would have a first-time offender. It made sense to do so; there should perhaps be an enhancement of sentence for the offender who has not learned his lesson. But, at the time, offense history was just one of a myriad of considerations taken into account at sentencing. Through the 1980s and 1990s, habitual and repeat offender legislation was passed to dramatically increase the length of prison terms these offenders would serve, regardless of the circumstances of the offense or of the offender. These statutes often double or triple and sometimes quadruple the sentence that a repeat offender can expect to receive. Moreover, these enhancements are often mandatory. Statutorily prescribed sentence enhancements should be eliminated or vastly reduced. It is time that we renew our faith in the judiciary to hand out sentences that achieve the punishment’s objective without compromising public safety.
Some will argue that restoring judicial discretion could result in vastly different sentences for similarly situated offenders, but it is hard to argue that this is somehow radically worse than identical sentences for very different types of offenders. More important, most of the discretion that results in disparities in criminal justice outcomes occurs long before the offender is standing before a judge—that discretion occurs in communities as police patrol the streets, and in the back rooms of district attorney offices as attorneys decide charges and bargain cases.
Bold Reform #5: Age Should Matter and All Criminal Records Should Expire
It is well established that age and prior criminal history are the two most salient predictors of recidivism. Just as it is impossible to change the past, it is impossible to stop the aging process, and we should use this pair of facts to make more intelligent sentencing decisions. Virtually all offenders eventually age out of crime, and research has consistently demonstrated that even the most active offenders age out of crime around the age of thirty-five.28 Acknowledging this criminological fact would mean that people who are in their forties should be considered for release annually—no matter what their offense. The works of the some of the most prominent scholars in the field suggest that criminal careers do not last very long. Blumstein and colleagues, for example, using arrest data, tracked this age-crime curve for eight index offenses (murder, rape, robbery, aggravated assault, burglary, larceny theft, theft, and arson) and found that the typical adult career for committing these offenses is five to ten years.29
We must find ways to truly expunge juvenile and adult records, because opening the prison gates and releasing large numbers of offenders will not accomplish much if we use their criminal records to send them right back in. While the call for ending mass incarceration through policy changes may seem challenging, it is relatively easy when compared with the challenge of changing how the usual suspects are perceived or treated when they encounter agents of the criminal justice system (including the police, the prosecutor, and the frequently all-white jury). Changing how we perceive individuals will have a lot to do with what story they have in their records and who has access to those stories. Crucially, the relevance of those stories becomes more attenuated with the passage of time, but the books are never closed. Criminal justice is one of the few realms where transgressions—even the most minor of transgressions—can be held against a person for life. It can no longer be argued that these records must remain accessible for decades because they continue to be relevant. Research has demonstrated that with each year that passes, a prior record becomes less determinative of future criminal conduct. After approximately seven years, a person with a prior criminal record is virtually indistinguishable from a person without one.30
If we are going to use age and criminal records against individuals in sentencing because research consistently shows that they are salient predictors of future criminal conduct, then we should similarly use the equally convincing research that tells us that age eventually makes continued incarceration futile and that prior criminal records eventually become meaningless.
Bold Reform #6: Stop Returning People to Prison for Technical Violations
There are many, many things that can be done to those who fail to abide by the terms of their supervision, but returning them to prison on a technical violation of the conditions of parole should not be on the table. Given their expense, prison beds should be considered a rare commodity, and those seeking to fill those beds should be required to justify the expense through cost-benefit analysis. Even the most rudimentary analysis would demonstrate that there is very little utility in returning technical violators to prison, even for short stays.31
Together these six principles would mean that prisons were reserved for those offenders who are truly dangerous and those prisoners would only stay for as long as they were actually dangerous. Some of those offenders might be so dangerous that they can never be safely returned to the community, but we would argue those would be very few.
If we committed to doing these six things, we would, in just a matter of years, end up with prison and jail populations that looked more like those of our European counterparts. Given the European experience, and our own (prior to the 1970s), we could do this without compromising public safety.32 The effects of these changes would be enormous and rapid, and would soon make mass incarceration a fact of history rather than a present conundrum. A few years ago, in a report called Unlocking America, a team of leading correctional scholars proposed a simple reform platform similar to ours: eliminate prison for drug and public order crime, reduce length of stay to 1988 levels, and abolish imprisonment for technical violations of probation and parole.33 They calculated the effect of these changes on correctional system populations starting in 2010, all else being equal. If we had done this in 2010, we would have 600,000 fewer people in prison today.
There is no question in our minds that the vast majority of those currently incarcerated in prisons around the country could be released with a negligible impact on public safety. For most Americans, life in the early 1970s, when there were just 200,000 prisoners, did not look vastly different from life in 2016, when there are 1.5 million (and that doesn’t include the 700,000 that cycle through America’s jails each year). We should not forget, though, that life for all those serving time in prisons and their families, and for the millions more who can expect to serve time in prisons during their lifetime, looks very different today than it did forty years ago. Lives are permanently altered by this experience—and not just the lives of those who are incarcerated, but the lives of children and families who are left behind and the lives of those living in communities that have
been devastated by criminal justice policies that have criminalized entire generations of mostly male, mostly poor, and mostly black residents.
If we could get to a prison population that was at a minimum half of what it is today in just one decade, then intensive supervision might become a realistic alternative to incarceration and all those who need correctional programs while incarcerated might be more likely to get them. Let us be clear that although we began by critiquing these approaches, we are not opposed to these as correctional strategies. On the contrary, we would be very much in support of such strategies if we work first to dramatically reduce the size of prison populations. With a much smaller base prison population, those approaches too could have meaningful and lasting effects on the number of people returning to prison—and that should ultimately be an aim.
We have made an argument with a series of proposals for immediately and dramatically reducing the number of offenders who go to prison and for drastically cutting the amount of time even the most dangerous offenders will spend there. These ideas might sound radical, even today when people are more open to decarceration arguments than they have been in decades, but most of what we have suggested would simply return U.S. sentencing systems and structures to the place they were before crime and drugs became a national obsession and increasingly harsh punishment became an imperative.
If we want to end mass incarceration, we can do so.
Notes