Who Belongs in Prison?

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The Georgia legislature, once noted for its tough-on-crime approach, voted last year to stop imprisoning certain non-violent offenders—particularly those involved in drugs—and divert them instead into cheaper, community-based rehabilitation programs.

In Miami, prosecutors and police are a few years into a campaign aimed at reducing court backlogs by, for example, serving civil citations to plumbers whose trucks lacked a legally required sign bearing the name of their business—instead of charging them with criminal misdemeanors, the previous penalty.

In New York State, the Close to Home project, launched in 2011, will place young offenders under supervision in their home communities with access to mental health and other counseling, instead of shipping them off to juvenile facilities far from their families.

These examples illustrate a growing national trend towards not incarcerating those whose offenses used to automatically result in a prison sentence. The trend reflects efforts to cut criminal justice costs and, at the same time, a re-evaluation of what constitutes appropriate punishment.

Underlying this approach is the idea that prison cells should be reserved for dangerous criminals.

“The primary purpose of imprisonment should be safety, and separating us from people who would do us physical harm,” criminal defense lawyer Jim Felman of Tampa, FL, co-chair of the American Bar Association’s (ABA) Criminal Justice Section Committee on Sentencing, said in an interview with The Crime Report.

Reclassifying Crimes

The ABA is among the groups backing efforts to reclassify certain kinds of crime and to lessen some criminal sentences.

In particular, the bar association has spotlighted how such changes might better balance the scales of justice for the poor who cannot afford adequate legal counsel, and who disproportionately fill the nation’s prisons.

According to Adam Gelb, director of the Pew Center on the States’ Public Safety Performance Project, roughly half the states have “made significant policy changes” in their bids to redefine sentencing standards over the last five years.

“Policymakers are recognizing that it’s not their job just to look tough on crime,” Gelb said. “It’s their job to produce a better public safety return, better results for taxpayers.”

Gelb added that successful evidence-based programs offering alternatives to incarceration in Texas and other states have spurred many legislators elsewhere “to ask questions and make policy change that concentrates on using prison space for serious, chronic and violent offenders, and to shift lower-level offenders back into the community.”

Free-falling government revenues have also been a factor in this trend, making it harder to justify the higher costs of incarcerating a wide array of non-violent people as opposed to dealing with them in other ways-

“Taxpayers want to feel like their money is being spent well,” said Sara Totonchi of the Southern Center on Human Rights.

Georgia’s new law—projected to save $256 million over the next five years—won broad bipartisan support among legislators.

“It’s been an unusual alliance,” said attorney Totonchi, the Atlanta-based organization’s executive director.

And that alliance, she added, “has made an impact on the average person (who is) beginning to listen to the stories about how the system isn’t working.”

Georgia has been plagued by some of the highest recidivism rates in the country, despite what Totonchi describes as hyper-spending on crime and soaring convictions rates over the last few decades.

The state’s new law, however, establishes different degrees of penalty for offenses such as burglary, forgery and theft.

“It creates gradations,” Totonchi said. “In the past … everybody was treated the same, given the same level of sentencing, whether they had broken into an unoccupied shed or a home where people live.”

Texas and Victimless Crime

While Georgia’s law is fairly new, Texas, has been reclassifying victimless, weaponless crime since 2003, said Jaya Davis, a University of Texas at Arlington criminology and criminal justice professor.

That year, the state began putting first-time drug-offenders who committed “victimless” crimes that did not involve a firearm on probation instead of sentencing them to a prison term.

“We’re talking (about) crimes involving drug abuse, drug possession, prostitution, gambling,” Davis said.

“Those drug-related crimes carried extra weight during the war on drugs and its mandatory minimum [sentences]. And that resulted in a mass incarceration … that hit certain races and classes of people extra hard.”

Students in her graduate level courses include probation and other law enforcement officers who, according to Davis, would prefer focusing their energy on violent criminals.

Long noted for its relatively tough stance against crime, Texas has beefed up a statewide network of courts expressly targeting mentally ill and drug-addicted offenders, among other innovations.

Many observers say such moves represent a long-overdue scientific approach to fighting crime.

“One of the ideas at play here is to use data-driven decision-making,” said Sara Sullivan, senior program associate at the Vera Institute of Justice’s Center on Sentencing and Corrections.

Like the Pew Center and others, Vera has been consulting with states about public safety policy.

‘Technical’ Violations

One key alteration, she added, is a push by some states not to re-incarcerate non-violent offenders for minor “technical” violations of probation, such as not being home before their designated curfew, or missing appointments with their probation or parole officers.

It’s important to note that the push to reclassify crime and sentencing involves more than, say, drug-related offenders who represent one of the largest prison populations.

Repeat traffic violators and shoplifters also are numbered among the nation’s felons, said attorney William Shepherd, an attorney in West Palm Beach, FL.

The tough-on-crime wave made such offenders a “significant problem,” Shepherd said.

“After the third or fourth offense, what used to be misdemeanors become felonies,” he explained. “The person who’s lost their license for a DWI or careless driving, who has a suspended license, but hops in the car and drives to work or to a friend’s house.

“In some parts of the country, that’s a very typical crime.”

So, too, he added are “the repeat shoplifters who often have other problems in their lives. Often they’re not stealing for the sake of daily survival, so to speak. The community courts we’re seeing pop up around the country, the veterans courts, the drug courts … are helping to address some of that.”

And Miami’s move away from “arresting and booking,” say, a plumber or contractor without the proper truck signage, frees the courts and police to better handle violent offenders.

“It’s about taking a look at the whole system and re-examining what we should be prioritizing,” Shepherd said.

Beyond addressing the core question of how to better allocate diminishing state and federal funds, what remains to be settled is whether the present re-thinking of crime and punishment will yield a long-term, permanent shift, Tampa attorney Felman said.

“We’ve clearly been over-using the sanction of imprisonment,” he continued. “One hopes that, regardless of the reasons we’ve embarked on these changes, the lessons will be learned.

“Otherwise, the concern will be that, after an economic upturn, some people will say ‘Now that we have more money, we can start locking people up again.’

“What’s important is that we learn from what works and continue to do the right things for the right reasons.”

Freelance journalist Katti Gray covers criminal justice, health, higher education and other topics for a range of national and regional magazines, newspapers and online news sites. A contributing editor of The Crime Report, she welcomes comments from readers.

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