Thoughtful crime analysts who hoped that the nascent justice reform movement was a sign that the country was moving beyond the politicization of crime are now watching slack-jawed as the 2016 election season enters its endgame stage.
Reforms are mostly on hold, and the old tough-on-crime tropes are back in vogue with Donald Trump, the Republican presidential nominee, and his crime goombah, former New York mayor Rudy Giuliani, whose frothing exhortations (at the Republican National Convention and on TV news shows) about the menace of lawlessness have prompted some to question each man’s grasp of statistical reality.
William R. Kelly, a University of Texas at Austin criminologist, dropped a new book, The Future of Crime and Punishment: Smart Policies for Reducing Crime and Saving Money (Rowman & Littlefield), into the middle of this.
He says Trump is plowing a well-rutted campaign furrow.
“Trump is simply fomenting and leveraging fear as a political tactic—fear of terrorism, fear of Muslims, fear of immigrants, fear of crime,” Kelly tells The Crime Report. “Unfortunately, it works. Fear is a powerful political tool.
“First, tell them they are afraid, then ride in on the white horse and reassure them by telling them what you are going to do about it. I must say, the emphasis on crime and insecurity caught me by surprise since the facts just don’t support it. Crime barely registers on a poll listing the most important problems facing the U.S. today.”
Kelly’s book gives a nuanced, contextual view of criminal justice today—and how we arrived at bulging prisons as a prohibitively expensive, counterproductive, one-size-fits-all solution to crime.
He says the country has been cocooned in the archaic “fiction” that prison and stern retribution somehow fix offenders by spurring personal redemption. A smarter, more economical approach would key on vast expansion of rehabilitation, job training, mental health care, and diversion from prison for most offenders, Kelly says.
He spoke about his latest book with The Crime Report’s David J. Krajicek.
The Crime Report: Your book points out that crime is relatively low. But if you watched the Republican convention, you saw Trump and Giuliani portray America as a crime dystopia. How does a rational, scientific approach overcome this fundamental misunderstanding (or political duplicity)?
William R. Kelly: Fear of crime already is propped up by the relentless reporting of violent crime on local TV news and other media…But it is also driven by what prominent people say. I did watch Trump and Giuliani, and I saw Richard Nixon do the same thing years ago. One big difference is that when Nixon painted a bleak picture of crime and disorder in the late 1960s, there was a basis in reality. While the public may have a number of things to feel uneasy about today, objectively, crime is pretty far down the list.
TCR: How would you convince a Trump enthusiast that crime is not so bad and that, even if it were, tax money is being wasted on a justice system that doesn’t work?
Kelly: First, I would offer objective information like crime rates and crime trends to show that crime is near an historic low. I would then point out recidivism rates as a measure of the ineffectiveness of the criminal justice system…Then I would tell them how much this failure costs them. By the time I get to dollars and cents, I may have their attention.
TCR: Justice reforms are being pushed aside this election season. Does the specter of Willie Horton still hang over elections?
Kelly: The most visible criminal justice reform proposals are at the federal level, and they have been brushed aside mainly because of the political paralysis in Congress. That situation is likely aggravated by the confusion the Trump candidacy has caused in the Republican Party. At the same time, some states have begun to move in the direction of reforming sentencing laws and focusing more attention and resources on things like drug treatment. These are steps in the right direction, but they are piecemeal and lack a big-picture vision of reform.
The Willie Horton effect lingers even in the current environment of low crime rates and much discussion about reforming sentencing and over-incarceration. “Tough on crime” is still a political selling point. It seems silly, but it is easy to do and apparently still resonates among some segments of the electorate.
TCR: Why are state-level reforms important?
Kelly: The vast majority of crime and criminal justice happens at the state level, so the greatest impact of meaningful reform will be realized there. At the same time, well-considered, comprehensive federal reforms can set an agenda and vision for the states, in much the same way that federal tough-on-crime policies helped set in motion the adoption of severe sentencing and punishment policies 50-plus years ago. The obvious problem is that politics has led to an intractable standoff in Congress, much to the detriment of public policy.
TCR: Can reforms win an economic argument: the “revolving door of failure,” as you call it, vs. smarter spending?
Kelly: I think so. We can have endless debates about the morality or fairness of tough-on-crime policies or the inherent logic of punishment as the solution for bad behavior…But the best way to get someone’s attention is show them how it affects their pocketbook. Inefficiency and waste seem to get peoples’ attention. The real benefit is that we can be safer and spend less money.
TCR: You suggest that mass incarceration has created “an enormous class of individuals who are permanently dependent on public assistance.” Explain.
Kelly: One of the major failures of U.S. criminal justice policy is that we do very little to address many of the reasons individuals get involved in crime and the justice system. We know that offenders enter the system with a variety of criminogenic or crime-related conditions, disorders and impairments.
The vast majority have substance abuse disorders. Nearly 40 percent have a diagnosable mental illness. Significant numbers present with neurocognitive disorders and impairments (60 percent of prison inmates have had at least one traumatic brain injury), and intellectual deficits. Poor education, employment problems and homelessness are also common. The revolving door of the justice system annually sends into the community hundreds of thousands of individuals from prison, jail and community supervision in the same shape if not worse than when they came in.
Restrictions placed on ex-offenders make it quite difficult to find legitimate employment and housing, among other things, and they become prime candidates for public services and public assistance…Yet this patchwork of social supports and financial assistance do not usually remedy the underlying problems. As these individuals churn repeatedly in and out of the justice system, they become permanently dependent on public assistance. That is an unnecessary waste of public funds.
TCR: Explain your view of prison’s counterproductivity.
Kelly: The primary job of incarceration is security. Rehabilitation is often an afterthought or a luxury that is the first to go when budgets get tight. What most inmates get is loss of liberty. Relatively few get any kind of effective rehabilitative programming.
When individuals enter prison with a mental health problem or neurocognitive impairment, the tendency once incarcerated is decompensation. They get worse. Prison is not an environment that is conducive to recovery. Those with [such] disorders tend to be victimized in prison, have trouble following rules, and often end up in administrative segregation or experience other punishments while incarcerated. Many are fragile to begin with and the experience of incarceration exacerbates that condition. There is evidence that incarceration not only exacerbates mental health problems; it also creates them.
TCR: You say that our system has been rooted in “anger-based decision-making” that led to “a very long, expensive binge.” Explain.
Kelly: The premise for tough sentencing and punishment policies has been retribution, an eye for an eye, just deserts, harm-based sentences and punishments. The simple calculus of how much harm you perpetrated as the basis for the severity of your punishment is a retributive approach. Add in mandatory sentences, restricted parole laws and policies, and habitual offender laws, and it is clear that we have been laser-focused on enhancing the severity of punishment.
The key players have been legislators, who write tough sentencing laws, prosecutors who make charging decisions and sentencing recommendations, and judges who hand down the sentences. Anger and toughness have pervaded the decision-making process and have resulted in dramatic increases in the severity of punishment. Just listen to election-year rhetoric, and it is not hard to see the link between tough and angry.
A more rational approach is to identify and get off the streets those that we are truly afraid of. Anger has been very expensive in actual justice system costs and a variety of social costs.
TCR: As a fan of cheesy Warner Bros. crime melodramas, I appreciated your suggestion that our crime policy has been stuck in one of those “black-and-white 1940s redemption movies.”
Kelly: A classic story line is a guy makes a bad decision which results in a crime, an arrest, and finally prison. The purpose of prison in the story is to contemplate one’s life, where things went wrong, and then making the decision to change those things. After a period of time, the guy gets out of prison and goes down the straight-and-narrow as optimistic music plays in the background.
That is the world of fiction. The reality is that the vast majority of offenders incarcerated in U.S. prisons cannot contemplate their way out of criminality. Punishment does little to change people for the better. The effects are generally short-lived because punishment doesn’t address criminogenic disorders or help with life on the outside…This fiction is what got us where we are today – in an endless cycle of arrest, convict, punish, release, repeat.
TCR: How do we get beyond Jimmy Cagney as our national criminal justice icon?
Kelly: Quit pretending, hoping or assuming that punishment works. The world is much too complex for such naïve solutions.
TCR: Describe the path forward toward a less costly, fairer, more efficient system.
Kelly: It begins with diversion on a scale unimagined in the current criminal justice system. We must balance behavioral change against risk and divert as many individuals with significant criminogenic problems, disorders and deficits and acceptable risk levels to treatment and rehabilitation programs. And these programs must be designed, implemented, operated and funded according to the inventory of evidence-based practices…It is not for lack of knowing what to do. It is a matter to prioritizing effective behavioral change over warehousing. Science must play a prominent role in policymaking, and elected officials must summon the political courage necessary to turn the ship around.
TCR: Is the hands-on, case-management approach of diversion and rehab more expensive than one-size-fits-all punishment?
Kelly: Rehabilitation, when properly implemented, is not inexpensive. At the same time, cost comparisons and cost-benefit analyses show that most rehabilitation programs are less expensive than incarceration. What many policymakers fail to appreciate is that every time an offender reoffends, we incur a variety of costs, including law enforcement, jail, the prosecution, pre-trial services, the court, public defenders or appointed counsel, and corrections.
When this pattern is repeated over and over again, the financial cost per offender is staggering. If we can interrupt that cycle through changing the primary, underlying circumstances and disorders associated with offending, we not only save criminal justice costs, we avoid many of the social costs such as victimization, financial losses due to property and violent crimes, etc.
Not only can rehabilitation be cost competitive with punitive solutions in the near term, over the longer term, the cost differential is substantial.
TCR: Police and the courts have been tasked with dealing with problems that once were part of the social welfare structure. Does this help explain the poor relations between police and minorities in many big cities?
Kelly: Yes, institutional failures and inadequacies have resulted in many disordered and disadvantaged individuals ending up in the criminal justice system, the system that just can’t say no. This is not something criminal justice administrators asked for. But it is the result of a number of very deliberate decisions made about public funding for health care, mental health care, substance abuse treatment and so on. This reality goes a long way in explaining the revolving door that has come to define the American criminal justice system.
What we are seeing today, with relations between urban minorities and local police, is little different from what we saw in the 1960s, with riots and civil disorder that began in Watts, Los Angles in 1965 and encompassed essentially every other urban area in the nation. I think the tactics have changed somewhat (sniper shootings of police) but I suspect the grievances are essentially the same….Granted, African-American poverty rates have declined since the 1960s, but today 27 percent of all black men, women and children live in poverty, compared to 11 percent of all Americans. The massive influx of minorities into the U.S. prison system leads some to suggest that the management of race relations depends heavily on the criminal justice system. All of this aggravates police-minority relations.
TCR: The $64,000 question of your book is the same question that criminologists have pondered since Robert Martinson in 1974: What works? You’ve been researching this subject matter for several decades now. Can you summarize what works—and, as importantly, what doesn’t?
Kelly: Whether it makes sense or not, increasing the severity of punishment does not deter reoffending because it does nothing to change the underlying criminogenic circumstances, disorders and impairments related to criminality.
Please do not misunderstand. This is not an apology for crime. I’m not saying we should shut down the correctional system or let everyone out of prison and jail. But we now have evidence-based programs, interventions, and procedures that can significantly alter behavior. Drug diversion courts and drug treatment programs work when properly designed, operated and funded. There are a variety of other diversion programs that keep offenders from going deeper into the justice system while providing interventions to address disorders and deficits. However, rehabilitation programs often are scarce, under-funded, poorly designed and operated and under capacity…
The real question is not so much what works as it is how do we get what works to criminal offenders. This depends largely on the priorities of elected officials and policymakers. For the past several decades, their decisions and policies appear to reflect ambivalence about reducing crime, a penchant for being seen as punitive and retributive, and a priority on getting re-elected.
David J. Krajicek (@djkrajicek) writes about crime and justice for The Crime Report, AlterNet, the New York Daily News, and others. He welcomes comments from readers.