There is justified concern that criminal justice reform, at least at the federal level, may be DOA in the wake of the election of Donald Trump. His campaign as the tough-on-crime, law and order candidate and his nomination of Sen. Jeff Sessions as the Attorney General are troubling news for justice reform.
What the feds do regarding criminal justice reform directly impacts federal law and policy. It also plays a significant role in setting the policy agenda for the states. That is important since states adjudicate and punish the vast majority of all criminal offenders.
Recently, we have seen modest (at best) movement away from our nearly wholesale embrace of retributive, tough on crime policies. Some states have reduced their prison populations slightly, and made modest changes to criminal sentencing laws. The Obama administration has accelerated the release of some non-violent drug offenders from federal prison.
These are positive signs, but they are a far cry from a concerted, comprehensive reformulation of justice policy.
In this period of considerable uncertainty, I would like to present to the new administration the case for meaningful criminal justice reform. “Meaningful” refers to criminal justice reform that substantially reduces crime, recidivism, victimization, and cost.
We’ve spent 50 years prosecuting a war on crime on the premise that punishing more offenders more severely will reduce crime and recidivism. This is based on the theory that we can deter individuals from committing crimes by punishing them or threatening to punish them, or preventing them from committing more crime by locking them up.
The report card is not impressive.
Our massive punishment experiment has resulted in overall recidivism rates of 65% for individuals released from prison. The rate is considerably higher for mentally and cognitively disordered and addicted offenders.
While some like to point to the great crime decline of the 1990s as evidence of success of these punitive policies, it is important to note that very similar crime declines occurred in dozens of other countries that had radically different policies regarding crime and punishment (for example Canada, Australia, New Zealand, the UK, France, and Spain).
We have also spent 50 years waging a war on drugs that has focused nearly unilaterally on supply control by trying to prevent drugs from entering the U.S. and by arresting and punishing dealers and users.
That report card is not impressive either. There’s little evidence that we have successfully controlled the supply of drugs into the U.S., or the distribution of drugs once they cross our borders.
Our problem is not that we have too many drugs in this country. Our problem is that we have too many people who are addicted, dependent or abusing drugs. Trying to keep drugs out of their hands is obviously not working. There is simply too much demand—and thus too much money to be made in the drug trade.
Our punishment experiment has failed because it does nothing to address the reasons many offenders commit crime. Eighty percent have a substance use disorder; 40% have a mental illness; 60% of inmates have had at least one traumatic brain injury, often leading to neurocognitive dysfunction. There is nothing about punishment that fixes bipolar disorder, executive dysfunction, impulse control problems, or addiction. Recidivism rates upwards of 80% for mentally ill and substance abusing offenders attest to this failure.
The reality is that we have spent nearly $1 trillion on our punishment experiment, and another $1 trillion on the war on drugs. No matter how you look at it, this is not a good return on investment.
To make matters worse, recent research estimates that the annual collateral or social cost of crime is an additional $1 trillion.
Retribution is an expensive policy with little utility other than tough talk, political leverage, and some emotional satisfaction associated with what some call justice.
What is just about the revolving door of the justice system fueled by extraordinarily high recidivism rates? What is just about exposing all of us unnecessarily to a heightened risk of criminal victimization? What is just about wasting unimaginable amounts of money with little to show for it?
It is time to separate rhetoric from reality. It’s time to take what we have learned over the past 40-plus years and forge a new path forward.
Mr. Trump, you have told us you are an outsider, a businessman and a deal maker. Do you really think the American criminal justice system is a good deal? Would you put your name on a business that has the return on investment of our justice system?
Here is an alternative business plan.
There are many criminal offenders who need to be locked up, including many violent offenders and chronic, habitual offenders. However, incarceration should not be the default decision, since it actually increases recidivism. Incarceration should be for those we truly fear, not those that just make us mad.
Our drug policy should be recalibrated to reduce demand more than control supply. This is accomplished by providing a dramatically expanded public, community-based drug treatment portfolio. Dealing with our drug problem as a criminal matter rather than a public health concern is futile and extraordinarily expensive.
The evidence is clear that diversion to various forms of intervention, treatment and rehabilitation can effectively change behavior, in turn reducing recidivism and crime. Diversion is key because it minimizes exposure to the negative effects of incarceration and punishment. But, diversion must be a balance of risk management and supervision on the one hand and therapeutic intervention on the other.
The goal is to provide accurate screening and assessment, identify all relevant, primary crime risk factors, and develop and implement comprehensive, evidence-based treatment and rehabilitation interventions that have been shown to dramatically reduce recidivism.
Decision-making under this alternative plan requires keeping the primary focus on the outcome – recidivism reduction, rather than the reflexive question of how much punishment.
Cost-benefit analyses have repeatedly shown that the economic benefits of diversion and treatment for mental disorders, substance abuse and neurocognitive impairments substantially exceed their costs. On the other hand, the cost-benefit analyses of incarceration show that the returns are substantially inferior to diversion.
More importantly, reducing recidivism produces longer-term results in phenomenal cost savings. Each time someone does not reoffend, we avoid all of the costs of recidivism—law enforcement, jail, prosecutor, public defender, court, and corrections.
While this alternative of outcome-driven diversion, risk management and treatment/intervention may appear “soft on crime,” the reality is that it reduces recidivism, reduces criminal victimization and, importantly, saves tremendous amounts of public dollars.
The recession that began in 2008 got officials in many states thinking about how much they spend on things like incarceration. That in turn led to the modest reductions in the prison population we have recently seen. So, cost is a major consideration.
Criminal justice reform is an investment with sound bona fides. It seems to me that a fiscally prudent business-savvy outsider would be attracted to an enterprise that effectively accomplishes its goals—while saving tremendous amounts of money.
William R. Kelly is a professor of sociology at the University of Texas at Austin. He is the author of three recent books on criminal justice reform, Criminal Justice at the Crossroads: Transforming Crime and Punishment, Columbia University Press, May 2015, The Future of Crime and Punishment: Smart Policies for Reducing Crime and Saving Money, Rowman and Littlefield, July 2016, and From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice, Rowman and Littlefield, June 2017. He welcomes comments from readers.