Finding Common Cause: Victims and the Movement to Reduce Incarceration

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Illustration by DonkeyHotey via Flickr

Illustration by DonkeyHotey via Flickr

After more than a generation of punitive, “tough-on-crime” rhetoric and policymaking, there is now a fairly broad political consensus in the United States that we have gone too far in our use of incarceration.

Indeed, just a few weeks ago, the White House unveiled the Data-Driven Justice Initiative, a partnership of 67 jurisdictions—big and small, conservative and liberal—committed to using data to reduce incarceration.

The efforts to roll back mass incarceration are laudable, but they will not achieve lasting change if they do not figure out how to incorporate the perspectives of the justice system’s most vulnerable constituents: Victims of crime.

Greg Berman

Greg Berman

Victims of intimate partner violence in particular often feel sidelined by a criminal justice system that focuses almost exclusively on defendants. And make no mistake:  Domestic violence represents a significant percentage of the cases in our criminal courts. Current estimates show that approximately 10 million people are abused by an intimate partner in the U.S. each year—and this is almost certainly an undercount, given the hidden and unreported nature of a lot of abuse.

But it is not just the criminal justice system that pays short shrift to victims. Reformers do it, too.

“Victims have been overlooked in this de-incarceration movement,” said Mai Fernandez, executive director of the National Center for Victims of Crime, in a recent interview with the Center for Court Innovation.

Advocates concerned with reducing the use of incarceration typically argue that fewer defendants should be sent to jail or prison, and that there should be more community-based alternatives. Victim support organizations are, by definition, focused on crime victims’ safety. Historically, many have argued for increased accountability—including incarceration—for offenders, particularly in cases involving domestic violence.

Is it possible for victim advocates and jail reduction advocates to find common cause? To begin to answer this question, the John D. and Catherine T. MacArthur Foundation and the Center for Court Innovation convened a roundtable with policymakers and practitioners from across the country, including judges, prosecutors, defense attorneys, victim advocates, and police officials.

The roundtable highlighted a number of tensions.

One obvious tension is the potential conflict between protecting the safety of victims and protecting the constitutional rights of the accused.  Many advocates believe that to better serve victims, courts should impose conditions of release—including stay-away orders, monitoring, and participation in specialized services—for domestic violence defendants who are out in the community pending trial.

This idea runs up against the strong national push to reduce pretrial detention for those who have been accused—but not convicted—of criminal behavior.

As with much of American life, the challenge of racial, ethnic and gender disparity hangs over this conversation.  Black and Latino communities have long histories of being over-policed and over-criminalized in the U.S. At the same time, these communities have been under-protected from the threat of victimization.  History tells us that women of color are particularly vulnerable.

Many advocates of jail reduction place great faith in actuarial risk assessment instruments to determine who can be safely released while a case is pending. But victim advocates are asking some hard questions about these tools: How accurate are they?

Julian Adler

What can a statistical analysis tell us about what any individual defendant might do?  And how well do risk tools take into account potential lethality?

“Domestic violence defendants are different,” argued Idaho judge James Cawthon in the roundtable.

Indeed, there is plenty of evidence to suggest that the presence of a specifically targeted victim changes the equation when it comes to looking at the potential risk—and severity—of re-offending. While some jurisdictions have developed special risk assessment tools for domestic violence defendants, many have not.

In the days ahead, jail and prison reformers will have to wrestle with these and other challenges if they are to win the full-throated support of victim advocacy groups.

This will be difficult, but not impossible.  After all, many victim organizations realize that the line between victim and defendant can be exceedingly blurry.  This is particularly true when it comes to gun violence: Many shooters know first-hand what it feels like to be shot or to lose a loved one to violence.

Indeed, many victims and defendants share a common history: Trauma.

Child abuse, sexual abuse, family dysfunction, and community violence are facts of life for all too many individuals in the justice system.  These experiences can be profoundly shaping, not just emotionally but physically as well.  Childhood exposure to violence can negatively influence individuals’ behavior for the rest of their lives.

A strong body of opinion within the victims’ movement agrees the time has come to take a hard look at “right-sizing” incarceration, which involves figuring out who needs to be behind bars and who does not.

“It’s just simply not the case that all victims of violent crimes, and certainly not all victims of nonviolent crimes, seek a punitive punishment for the offender,” University of Miami law professor Donna Coker tells the Center for Court Innovation. “What they frequently seek is some assurance that it won’t happen to them again and some assurance that it won’t happen to somebody else.”

Victim advocates and jail reduction proponents may not be able to agree on every issue.

But in those areas where they have shared goals—improving the quality of risk assessment tools, reducing racial and gender disparities, and promoting trauma-informed care—they can serve as a powerful voice for change within our justice system.

Greg Berman and Julian Adler are, respectively, the center director and director of research-practice strategies at the Center for Court Innovation. They welcome readers’ comments.

3 thoughts on “Finding Common Cause: Victims and the Movement to Reduce Incarceration

  1. Do Prison Inmates Deserve Incarceration?

    More Titles
    The American Prison Vote Project
    Are American prisons incarcerating the right people?
    Do violent or repeat offenders deserve prison?

    Article
    There are endless groups advocating for lessening or ending (at least by 50 percent) America’s reliance on prisons. “They are costly and inefficient,” many will say. “Americans have the shame of having the highest rate of incarceration in the world.”

    This discussion has been going on for decades and the groups arguing against an “overreliance” on prisons are impressive with the vast majority of the criminological community leading the way. Colleagues in corrections are often supportive of their positions for pragmatic reasons. The Obama administration is counted as being in this camp. Candidate Clinton calls for an end to current levels of incarceration
    Within the last five years, the anti-prison coalition includes a strong segment of conservatives. That alliance of conservatives and liberals was thought to be the turning point in finally getting the American public to accept other strategies beyond incarceration.

    There are no organizations fighting for prisons or the current rate of incarceration. Yes, prosecutors and some in law enforcement will offer opposition, but they are massively outgunned and outmanned by opponents.

    Reasonable Conclusions

    So we can come to two reasonable conclusions based on the above, the use of incarceration is greatly decreasing and federal and state governments are creating programs and structures to take on more people who would have gone to prison in the past.
    The answer is “no” to both.

    Prisons

    The use of incarceration has either declined slightly or increased (depending on the numbers you choose) and federal and state governments are doing little to prepare alternatives.

    Per the latest US Department of Justice data (Bureau of Justice Statistics) on “correctional populations” (prison, jail and community corrections), the incarcerated population (up 1,900) slightly increased during 2014. There was a small increase in the jail population (1.8%) followed by a small decrease in the prison population (1.0%). The correctional population (prison, jail and probation-parole) declined by an annual average of 1.0% since 2007 (Correctional Populations in the United States).

    The number of “prison inmates” from 2004 to 2014 increased by 0.6 percent and the rate decreased by 0.2 percent (Prisoners in 2014).
    Note that a small number of states drive national totals and efforts to reduce the prison population in California (Supreme Court ruling on medical care) and the federal system influence everything. Also note that the crime rate fell to record lows over the last twenty years so one assumes that this would affect prison numbers.

    The bottom line for the US correctional population (2004-2014) is stagnancy in the prison population with reductions of 1 percent a year in the overall correctional population (prison, jail and parole-probation) mostly driven by a decrease in the probation population (probably due to less crime).

    Community Corrections

    States and the federal government are engaged in a wide variety of research or small-scale rehabilitation efforts but the truth is that the vast majority of prison inmates do not get the programs they need. It’s equally true that parole and probation agencies have huge caseloads and little in the way of programs they fund to support additional people.

    How Could This Be?

    How could this be? How could the most supportive administration in our lifetime in favor of lessening our dependence on the use of prisons, backed up by dozens of national organizations and associations, the great majority of criminologists and many in corrections plus an alliance of conservatives and liberals have done so poorly?

    In our opinion, it’s the belief within American society that the great majority of people in prison deserve to be there based on the severity of the crime(s) or repeat violations.

    Deserve Prison?

    In our minds there cannot be any other explanation. Most Americans believe that inmates are in prison because they have done something extremely violent or they have committed so many crimes that prison is the only reasonable alternative.

    When I was in public affairs for twenty-five years for two correctional/law enforcement agencies, I had the opportunity to look at hundreds of case files involving inmates or people who were once incarcerated but now on parole or probation. I never saw one case where I questioned the reasonableness of that person’s incarceration. I was astounded by either the severity of their crimes or the number of contacts they had with the criminal justice system.

    Note that there is Department of Justice data indicating that most convicted of felonies do not go to prison and about half (51%) of all defendants had five or more prior arrest charges, and more than a third (36%) had 10 or more (Felony Defendants in Large Urban Counties)

    I’m aware of examples where prison inmates did get terms I thought were excessive, but there are few cases where I thought that they did not deserve some form of incarceration.

    Many Other Issues

    We’re not addressing all correctional and societal issues here (i.e., do the mentally ill belong in prison?) only the appropriateness of an individual deserving to be in prison based on his actions and criminal history.

    Critics of the current use of prisons will emphatically state that prison destroys families and incarceration does not lower rates of recidivism. But does that have an impact on the perception that those in deserve to be there? Based on the numbers, apparently not.

    We are supportive of efforts on the front end as to people being diverted from prosecution. We understand that too many people come into contact with the criminal justice system (i.e., marijuana use should be legal or decriminalized). Prison sentences don’t have to be as long as they are. Three strike provisions should only apply to a higher class of violent crimes. The mentally ill should be treated before they get to the justice system.

    We like the observation that people should go to prison based on their propensity towards “violence,” not because we are mad at them. But that would leave a lot of people doing a lot of harm out of prison including Bernard Madoff (operator of a Ponzi scheme considered the largest financial fraud in U.S. history).

    Even on the back end of the system, there are legitimate questions. Some believe that fifty percent of women inmates could be safely released if we had programs in place. Any inmate over 50 serving at least half of his sentence should be considered for release based on declining rates of recidivism. Parole should be reinstated.

    Crime Victim Support for Alternatives?

    Yes, there are polls stating that crime victims strongly support alternatives to incarceration, but every one of these polls are from groups advocating less reliance on incarceration. From their data, you could come to the conclusion that crime victims represent the most liberal group in America when it comes to prison use.

    But I had hundreds of conversations with victims and victim service organizations (I was the victim liaison for a state criminal justice agency and I was in charge of responding to victim’s issues for the Department of Justice’s clearinghouse) and never, not once did I hear anyone ask for their offender to be released from prison. Alternatives to incarceration were never discussed. They all believed that their offenders deserved prison.

    See more at http://www.crimeinamerica.net/2016/08/10/do-prison-inmates-deserve-incarceration/

  2. Research suggests that perpetrators of domestic violence can be deterred by the criminal justice response if that response reflects the seriousness of DV crimes. Most chronic abusers also commit non-domestic crimes. If they are more likely prosecuted and more severely punished for these crimes as opposed to their domestic abuse crimes, they will continue to commit more crimes of domestic violence for the rest of their criminal career and vice versa. The research suggests the key is not whether or not abusers are imprisoned for a specific length, but whether or not the criminal justice system and courts treat domestic assaults more seriously than shoplifting and other nonviolent offenses!
    The research can be found at:https://www.ncjrs.gov/app/publications/abstract.aspx?id=266838

  3. I do believe that domestic violence have a big impact on most of the family today. Most of my church family come to my wife and I when they start having marriages issues, before it get out of hand. I’m Mariette for 19 years. Before we got maritte to each other, we courted for two years, and became friends and soul mate for life.

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