Why 'Tough on Crime' Failed


Criminologist William R. Kelly pulls no punches in his assessment of the grim state of America's churning criminal justice machine.

“Our criminal justice policies have failed to effectively reduce crime and recidivism; they have needlessly placed hundreds of thousands of individuals at risk of criminal victimization each year, ” says Kelly, author of Criminal Justice at the Crossroads: Transforming Crime and Punishment, recently published by Columbia University Press.

“And they have facilitated a large segment of the population cycling in and out of the justice system and becoming permanently dependent on public services, rather than being productive citizens.,” he adds.

Kelly is a University of Texas-Austin sociology professor and the founding director of the school's Center for Criminology and Criminal Justice Research. In a conversation with David J. Krajicek, contributing editor of The Crime Report, Kelly explains why he believes the system is a “massive failure” and why Americans are not as vengeful as some politicians believe. He also offers some ideas about where we go from here.

The Crime Report: You write that the United States spends about $260 billion a year on criminal justice. What do we get for our money?

William R. Kelly: An undeniably poor return on investment. The recidivism rate of inmates released from prison is well over 65 percent. Over 35 percent of probationers fail to successfully complete their period of supervision, and approximately 40 percent of those who successfully complete supervision reoffend. To be fair, some crime is averted, or at lease delayed, while offenders are in prison or on community supervision. However, our focus on punishment and control is in many, many cases only a temporary reprieve from crime. If we fail to address the reasons individuals engage in crime in the first place, how can we realistically expect anything to be different when someone is released from prison or discharged from probation?

TCR: You suggest that Americans slept through this expensive disaster. How could we have been so wrong about so much?

Kelly: Punishment made perfect sense when crime control was launched in the 1960s and 1970s. Crime was rampant, disorder was commonplace, and the obvious answer was 'get tough.' Punishment is intuitive and logical, it is something that most of us grew up with; it is part of the socialization process; and it generally works…We got it so wrong because we assumed that criminal offenders would respond to punishment or its threat the same way we do. The problem is that criminal offenders are not us. They differ in fundamental ways, and those differences often render punishment inert. Policymakers missed that. Policymakers continued to miss it well after the evidence of its ineffectiveness was obvious.

TCR: But is “tough on crime” really finished? I see many anecdotal examples of dithering by politicians.

Kelly: Not at all. We hear less of the tough-on-crime rhetoric that has characterized election campaigns at the national, state and local levels over the past few decades, but tough is instilled in the political culture and continues to have a robust influence. On top of that, the idea that there are more effective and less costly alternatives for reducing crime and recidivism is slow to evolve, especially when we live in a culture that has an uncomfortable relationship with science. Crime policy has entered the national discussion for the first time in many years. Every presidential candidate has suggested some change to justice policy…but generally they are offering safe, cautious and piecemeal ideas.

None of the national candidates has declared a war on tough on crime and I doubt any will. While 'smart on crime' has entered the discussion of crime policy, I don't think we have even purchased tough-on-crime's coffin, let alone started pounding nails in it. There are also powerful economic incentives to keep the train moving in the same direction, including the private prison and security industry which annually spends enormous sums of money lobbying Congress, state legislatures and local government. Moreover, local communities throughout the U.S have a clear economic stake in this, since prisons and other correctional facilities are economic drivers in areas with few alternatives.

TCR: You present a withering portrait of America's naiveté about crime. Why are we so uninformed about a subject that has been a national obsession for generations now?

Kelly: We do not routinely make a priority of independently educating ourselves on policy issues. Research indicates that opinion formation on policy matters like crime and punishment is greatly influenced by what elected officials say…That has been the consistent message, and pointing to the crime decline of the 1990s and 2000s has been used as proof of its effectiveness.

TCR: You write that the crime decline of the 1990s was a global phenomenon, a point that is largely overlooked in the U.S. Why is that important?

Kelly: We have been told that the correlation between increases in incarceration and declines in crime rates is clear evidence that tough-on-crime is effective. Knowing that nearly every other Western nation has experienced very similar declines in crime rates without punitive crime policies clearly questions the efficacy of our tough-on-crime policies. That, in combination with the recidivism rate, is straightforward and compelling evidence that our tough-on-crime experiment is a failure.

TCR: You say it is time to get beyond anger-based sentencing. Are we sensible enough to move past retribution in our system of punishment?

Kelly: I believe that we have the tools to develop and operate a much smarter approach to criminal justice. I don't know if we are mature enough to move beyond retribution-based sentencing, but I believe the public and policy makers do understand saving money and enhancing public safety. That will require criminal sentencing that is based much less on emotion and much more on utility. The key going forward is being able to differentiate between those we are truly, justifiably afraid of and those we are just mad at. We should incarcerate the one and get smarter about the other. And the latter should far outnumber the former.

TCR: A subhead in your book asks: “Are Americans a Vengeful Lot?” Are we?

Kelly: Less so than prosecutors, judges and politicians seem to think…The public is much more balanced in their views of crime and punishment than elected officials give them credit for…It points out a major disjuncture between what the public thinks and what our elected representatives think and do.

TCR: Has anything positive resulted from the mandatory minimums frenzy?

Kelly: Yes, but it is like the one pellet from a shotgun blast hitting the target while the rest fly randomly into the air…Occasionally, mandatory sentences keep a truly dangerous person off the streets for an extended period of time; but overall, mandatory sentencing has been highly inefficient and unjust.

TCR: You cite rather extraordinary research that suggests there is no correlation between the length of a prison term and the likelihood of an individual reoffending. Do we fundamentally misunderstand punishment?

Kelly: Punishment doesn't work because it doesn't change anything, except to aggravate many of the conditions, disorders and problems that criminal offenders face. This is not making excuses for criminal offenders. This is simply recognizing that many criminal offenders enter the justice system with mental illness, substance abuse, neurodevelopmental and neurocognitive impairments, intellectual impairments, educational deficits, and employment problems, to name a few. Imprisonment does nothing to treat those conditions…

We then release these individuals with little more than $50 or $100 in gate money, the name of a parole officer, and few if any resources in place to facilitate reentry and reintegration into the community. What do we expect him to do?…That is where the reality, the science, smacks up against common sense. We just cannot punish crime out of those with the characteristics and circumstances many offenders have.

TCR: Your book makes the case that poverty and crime are inextricably linked—that states with the highest incarceration rates also rank poorly on child welfare. Explain.

Kelly: The American criminal justice system is the de facto solution for the failures of a variety of public institutions. Or, perhaps more accurately, it has been the dumping ground for the products of many of these failures. Failure to adequately address problems of poverty, mental health, substance abuse and public education all contribute to crime and have substantial impacts on the criminal justice system. Decisions by federal, state and local officials about funding allocations for various programs and services also have significant impacts on their criminal justice systems…Our western European allies have dramatically lower crime and extraordinarily different criminal justice systems (because)…they consider public health matters many of the things that we explicitly or implicitly criminalize, such as mental illness and substance abuse.

TCR: What role has race played in the criminal justice arc of the past 50 years, beginning with Barry Goldwater's 1964 GOP nomination speech in which he suggested “tyranny” lay ahead unless we protected the streets from “bullies and marauders”?

Kelly: The demographics of crime and the criminal justice system tell the story pretty clearly. Observe any criminal court room, probation office, jail or prison. The majority of the offenders you see are minority. Some of this outcome is race bias in the justice system and a consequence of racial bias in society at large. At the end of the day, it is an effect of poverty and disadvantage, the relationship between race and poverty, and poverty and crime. Larger percentages of minorities are poor, and larger percentages of the poor commit crimes. Fear plays an important role in electoral politics and crime policy, and it is no coincidence that the typical face of crime is black or Hispanic.

TCR: Let's talk about science. You say the path forward is through broad reforms that are scientifically sound and evidence-based. But America has a well-rutted recent record of being anti-science in its policymaking. Is the country ready for science in its criminal justice?

Kelly: I would not recommend that we position the path forward as the scientific path, largely because of the anti-science sentiment in the population that you note. Rather, it seems to me that the way to initiate reform is by focusing on the extraordinary cost of crime control. I believe that we can get more traction by initially making it a money issue. The recession triggered the current discussion of mass incarceration and punishment. Going forward, the focus should be on building a more effective criminal justice system that costs substantially less. We have the science behind this when it is needed for particular audiences, but the primary attributes of the “brand” it seems to me, should be less expensive, more effective, and safe.

TCR: Will that sell in the many statehouses dominated by old-school conservatives?

Kelly: Criminal justice reform has become bipartisan. The Koch brothers, Newt Gingrich, and Right on Crime are aligned with the ACLU and liberal Democrats on criminal justice reform. The two sides may have different motivations, but they see the same solutions.

TCR: Is the public buying into the reform movement faster than politicians?

Kelly: Absolutely, and has been for at least a decade. Public opinion has been consistently moving away from harsh punishment, including mandatory sentences and mandatory minimums, and more toward rehabilitation and diversion from incarceration.

TCR: American sentencing is a hodge-podge, with the federal government and all 50 states—from far-left liberal and to far-right conservative—doing their own thing. What would you do to bring order to this fragmented array?

Kelly: By highlighting the extraordinary cost and very low utility of retribution, states may begin shifting thinking about why we sentence, shifting more of the attention on the outcomes of sentencing decisions, especially toward what reduces recidivism. Much of the smart-on-crime initiative, from both the left and the right, is sentencing reform: elimination or reduction of mandatory sentences, and less incarceration sentences for non-violent and drug offenders. This is a good first step. And I suspect that many states will follow suit as these kinds of changes gain traction.

I doubt we ever get to sentencing uniformity across the states and the federal system, but I do think criminal sentencing should move away from the determinant systems we have today which are characterized by less judicial discretion and more predetermined or fixed sentences, to a system more like what we have 50 years ago where judges had considerable latitude in sentencing. The most important change in sentencing going forward is the shift from sentence as punishment to sentence as risk management and behavioral change. It should be a problem-solving effort, not a dose of punishment determination.

TCR: How would you fix parole, another messy residual issue from the 1990s?

Kelly: One way is to clarify the purpose of parole, which should be to balance public safety and enhance the successful reentry and reintegration into society. In the past, it has served mainly as a mechanism for supervision, control and revocation, with relatively less emphasis on successful reentry. A second is to adequately fund parole so that officers have realistic caseloads and appropriate resources for managing those individuals on their caseloads. A third is to appreciate that many offenders are returning to the community in worse shape than when they went in, and that the criminogenic needs and deficits that they went in with are no better when they are released…Obviously, when one reoffends, revocation should in many cases be the outcome. But revocation shouldn't be the only option.

TCR: You write that many reforms require “substantial cultural change.” Explain.

Kelly: One of the more challenging obstacles to true change is the environment in which justice is administered, the culture of the organizations. In addition to changes in laws and procedure, we need to change the way we think about crime and punishment. Prosecutors and judges need to embrace the idea that punishment has limited utility and that the way to reduce recidivism is by identifying and addressing those factors related to an offender's criminality. This involves moving from case processing to problem solving. That requires not only structural changes, but changes in beliefs and attitudes.

TCR: Much of the attention on criminal justice today is focused on conflicts (and shootings) between officers and citizens. Has the 35-year history we've been talking about had a bearing on how police and black citizens deal with one another?

Kelly: The failure of the criminal justice system to effectively reduce recidivism has aggravated many of the problems faced by law enforcement. Police are the face of the justice system in the community, so any frustrations, resentments, and anger that individuals in the community have as a result of problems with the justice system are likely directed toward police. The failure of the justice system to reduce recidivism results in a hardening of the offender population. Each time someone cycles in and out of the system, their risk of reoffending probably increases. That has consequences for how law enforcement deals with individuals, especially in high-risk neighborhoods.

TCR: You say that in many ways these first transactions of our justice system largely become irrelevant to all that comes afterward. Explain.

Kelly: There are several very important issues facing metropolitan policing today, including the strained relations with minority neighborhoods, and the attention on the use of force…Law enforcement activities also contribute significantly to racial disparities in the justice system. Having said that, I believe that the primary sources of failure in the American criminal justice system occur after someone is arrested. Law enforcement can have little impact on reducing recidivism of those offenders who enter the justice system. At the same time, there are important opportunities for police to engage in crime prevention in the community, but to be effective, that requires a substantial investment in community resources, an investment that we have not been willing to make on a scale necessary to significantly impact crime.

David J. Krajicek is a contributing editor for The Crime Report. Follow him on Twitter @DJKrajicek. He welcomes your comments.

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