Crime and Punishment

Long ago when I was in law school, a rather conservative friend and I would debate a wide range of issues, including issues of crime and punishment. During one discussion, we were talking about the death penalty and "original intent" - the fact that the founding fathers accepted the death penalty, and thus did not regard it as a constitutionally "cruel and unusual punishment". I raised the fact that there are punishments which were in use at the time the Constitution was drafted which would now be declared "cruel and unusual" if applied by a court - the stocks, pillories and public floggings, for example. (I'm not a historian of unusual punishments, so I'm not sure if the same argument can be made to the mutilations (e.g., cutting off ears) or branding that were part of early colonial criminal justice.) His response was, in all likelihood, what Scalia would respond - those punishments should be deemed constitutional as well.

Back in that era, the jail was not the place you were sent to serve your sentence. The jail was the place you were held until your sentence was carried out, be it flogging, some time in a pillory, execution, or something else. As we have abolished the various corporal punishments and public humiliations, reserving only the death penalty, we now punish pretty much every serious criminal act with a period of incarceration - be it days, months or years. Yet there seems to be absolutely no regard for whether incarceration is effective.

When we want to "get tough" on a particular crime, or on young offenders ("super predators", or whatever we're calling them this year), longer prison terms are proposed. We get angry at the notion that prisoners might get college degrees or learn career skills while serving their terms (whatever the rehabilitative element), so we withdraw the grants which permitted them to afford college classes, and underfund prison vocational programs. And while we joke that the number one thing inmates learn in prison is "to become better criminals", we simultaneously seem willing to accept that status quo.

After they serve their weeks, months, or years of incarceration, prisoners are released back into society with varying levels of supervision and support. In his "State of the Union" Address, GW Bush stated,

In the past, we've worked together to bring mentors to children of prisoners, and provide treatment for the addicted, and help for the homeless. Tonight I ask you to consider another group of Americans in need of help. This year, some 600,000 inmates will be released from prison back into society. We know from long experience that if they can't find work, or a home, or help, they are much more likely to commit crime and return to prison. So tonight, I propose a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups. (Applause.) America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life.

That's $500 per prisoner - following the $20,000 - $40,000 per year we spent on incarceration. A federal judge in Massachusetts applauds the thought, but deems it "too little, too late":

The programs [used by the court's probation office] teach or reteach the most fundamental life skills -- how to dress for a job, how to eat nutritiously, how to apply for employment, how to be in a relationship, how to parent. And I am struck over and over again by how difficult the task is.

The problem is that the policies our government has implemented, long before those prison gates are open, undermine a prisoner's opportunity for a second chance. Too many prisoners are serving sentences that are too long under conditions that are not remotely conducive to rehabilitation. We must change our approach long before reentry.

In fact, Bush's $300 million initiative reminds me of a homeowner who, midwinter, turns up the thermostat but leaves the front door open. It seems like a great idea, but it misses the real problems.

The time has long passed for this nation's legislatures to take a long and hard look at their prison systems, not to determine if bad people should be segregated from society, but to determine the costs and benefits of the current system. Are there workable alternatives to prison for non-violent offenders, even those who seem like hopeless recidivists, which may be more effective in rehabitation, or which may simply be more cost-effective in terms of segregation from society? Are there interventions that could be taken with kids and young adults who seem to be destined for future incarceration (and, please - let's be a bit more sophisticated than "scared straight") which can help get them onto a more constructive path?

Are there alternatives to incarcerating drug users, which might be both less costly and more likely to help them break their addictions (and yes, in most prisons they can still get drugs)? Is it possible to determine an optimal sentence range for rehabilitation for offenders of a particular type or age? (If you ask for my conservative friend's input, he will argue that we should bring back forms of corporal punishment and public humiliation as a cost-effective alternative to incarceration, particularly for young offenders who may gain status among their peers from spending time in jail. In his blunt terms, "they won't gain much status if they urinate and defecate on themselves during a public flogging in front of their friends.")

It is a sad reality that there are some people who are too dangerous to walk the streets - and if you don't execute them, you have to lock them up for long periods of time - perhaps forever. But for those we incarcerate for a period of years but fully expect to release, are there not things we can do during that period of incarceration to encourage personal growth and development, or at least to create job skills? (The judge doesn't point this out, but many of the probationers she describes would be learning for the first time such things as how to behave during an interview, why they should arrive at work on time, why it is not unreasonable for the boss to be angry when they don't show up for a shift without notice, how they should dress, how to speak to the boss, when it is appropriate to disagree with the boss, when it is not, and how to discuss an issue without arguing - things which can be at least as important to job retention as having actual job skills.)

It also seems to be the case that some people get their lives back in balance after a term of incarceration, or even a night in jail - I think many criminal defense lawyers have encountered a client who went from alcoholic to teetotaller courtesy of one humiliating night in the drunk tank and an associated drunk driving charge. But when you spend one too many days in court watching a group of young adults laughing and joking as they sit in their jailhouse jumpsuits awaiting arraignment, it is abundantly clear that for a certain subculture neither the threat of jail nor the humiliation of arrest, public prosecution and conviction, serve as any sort of deterrent. And before we get "tough" on them by throwing away tens of thousands of taxpayer dollars on their repeated stints behind bars, perhaps we should take a long and hard look at what we are doing and, for those cases where it isn't working, what we can and should do differently.

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