Much of the discussion about criminal justice reform in state legislatures in recent years has been motivated by the recession that hit in 2008. That was when states began looking for ways to cut budgets, often by reducing prison populations.
Nevertheless, while there have been some modest reductions in inmate populations, there is no clear trend toward smaller prisons on the horizon. More importantly, simply reducing the size of the inmate population may be fiscal reform—but it certainly is not criminal justice reform.
Congress has also toyed with modest modifications to sentencing laws in an attempt to roll back some of the more draconian aspects of federal mandatory sentences. Unfortunately, our representatives seem locked in fear and political paralysis. The latest efforts to overhaul sentencing laws collapsed this month, leading Sen. Dick Durbin to declare that, at least for this session, the legislation is “over.”
Criminal justice reform seems stymied at the federal level by modest ambitions and political intransigence.
Current recidivism rates are reportedly north of 65 percent; but this is an underestimate since it reflects only those who have been caught. It is impossible to think that our 45- year penchant for retribution and punishment has been effective public policy, if the goal has been reducing crime and recidivism.
Where does that leave us now?
True criminal justice reform, it seems to me, needs to directly and comprehensively confront how we go about the business of public safety.
We have spent roughly $1 trillion in direct criminal justice costs over the past 45 years of being “tough on crime.” We have spent another $1 trillion for the war on drugs. Moreover, recent research by Washington University, cited by TCR, tells us that the price tag for crime (including direct criminal justice costs as well as a wide variety of collateral social costs) is $1 trillion per year.
It is impossible to think of this as a good return on investment.
Decades of research have shown what substantially and effectively reduces recidivism, crime, victimization and cost. Interventions focused on behavioral change with regard to criminogenic risk factors are key.
We have the tools. We seem to lack the political will.
I do not believe we can or even should spend too much time waiting for legislatures or Congress to enact meaningful reform legislation. Their track record tells us as much.
We know that justice system involvement is criminogenic. The deeper one goes in the criminal and juvenile justice systems, the worse the outcomes. We also know that hundreds of thousands of offenders in the criminal and juvenile justice systems are mentally ill, addicted to or abusing alcohol or drugs, have intellectual deficits, and/or neurocognitive impairments and disorders.
Is it any wonder that punishment does not reduce the cycling in and out of the justice system of such offenders?
What makes scientific and common sense is to dramatically ramp up diversion from criminal prosecution and punishment to community based intervention and treatment. Punishment does not change behavior. Clinical intervention, as well as a variety of rehabilitation programs focusing on things like education and employment among others, do change behavior and reduce recidivism.
While this may be more than they want, I believe that the key to true justice reform resides with prosecutors. They make the key decisions that directly influence the outcomes of cases. They determine who and what to charge, who to indict, what to plea negotiate, what sentence to attach to a plea deal, and what sentence to recommend at a sentencing hearing.
My goal is to utilize that power to get criminal justice reform moving in the right direction and on a meaningful scale.
The name of the game should be reducing recidivism. Prosecutors can do that if they are equipped with the right tools and the right motivation. Those tools include panels of clinical experts who can advise prosecutors regarding individuals appropriate for diversion to community-based intervention and supervision/risk management. Those decisions would consider the severity of offenders’ disorders, impairments and deficits, as well as risk level.
This will require a substantial increase in community-based intervention resources and expertise. Importantly, it will also require a change in how prosecutors think about crime and punishment.
I’m not recommending closing our prisons. This is about using incarceration more selectively, something over which prosecutors have substantial influence. We should incapacitate violent offenders and chronic, habitual offenders who just don’t seem willing or able to change.
Why should prosecutors get on board? The majority of offenders that prosecutors deal with are recidivists. Effectively and substantially reducing recidivism will reduce caseloads.
It will also enhance public safety and reflect wise investment of public resources. These should be important incentives for elected District Attorneys.
William R. Kelly, a professor of sociology at the University of Texas at Austin, is the author of two recent books on criminal justice reform, Criminal Justice at the Crossroads: Transforming Crime and Punishment (Columbia University press, 2015) and The Future of Crime and Punishment: Smart Policies for Reducing Crime and Saving Money (Rowman & Littlefield, 2016). He is finishing a third book tentatively titled From Retribution to Public Safety: Disruptive Innovation in U.S. Criminal Justice Policy.He welcomes comments from readers.