The American criminal justice system has long erred on the side of punishment instead of rehabilitation for many offenders. But the punishment is disproportionately severe for repeat offenders of non-felony crimes like recreational drug possession and prostitution, according to a forthcoming paper in the Virginia Law Review.
The paper, entitled, “What if Nothing Works? On Crime Licenses, Recidivism and Quality of Life,” argues that replacing incarceration with a different approach would counter the “dehumanizing and painful” strategy currently used against recidivist individuals.
Josh Bowers, a professor at the University of Virginia School of Law and author of the paper, suggests introducing a system he describes as “licensing” which would effectively allow a targeted group of repeat offenders to avoid punishment in the hope that other forms of rehabilitation or counselling will work better.
“Just as drug prescriptions for dependent individuals keep them relatively healthy and socially integrated, crime licenses for “persistent misdemeanants” have potential to eliminate barriers to offender reentry,” he wrote.
“In this way, the crime license promises to do by not doing—to “nudge” without nudging. It is a problem-solving approach premised on patience, allowing the purported “lost cause” [individual] an opportunity to navigate his way through, at his own pace, to the other side of the age divide.”
According to Bowers, these would not be literal licenses or marks on their identification cards; but rather, a notice on their criminal record in the event the individuals are picked up by police.
The notice on their record would allow the individual to avoid reentering the same life-altering and painful process that is the criminal justice system.
“It might seem strange to decriminalize criminal conduct for a finite population only—particularly for only the most noncompliant offenders,” Bowers writes. “But it is not so farfetched.”
Bowers first makes it clear that creating and administering crime licenses is not a way to promote “anything goes” for crime mentality.
Instead, Bowers writes, his idea is aimed at developing plausible means to test if “the best first step to promote a healthy social order is to stop ordering people around.”
In other words, Bowers believes that if certain offenders who only commit quality-of-life offenses — like recreational drug possession, panhandling, vagrancy, subway turnstile hopping, unlicensed vending and prostitution — are not over-policed, they will police themselves.
In fact, Bowers notes, that in the beginning of the licenses’ institution, the recipient would be completely unaware of its existence, and their background would be run through a risk-assessment test to see if their case warrants a recidivism license.
According to Bowers, there is data to back up this general philosophy of ‘amnesty’ policies, and anecdotal stories that support it.
In Vancouver, Canada and throughout Switzerland and Portugal, free government-run facilities allow addicted citizens a safe and uncontaminated location to use drugs. While critics were quick to argue that this would promote drug use, the opposite happened.
Following the creation of these medically supervised facilities, overdose deaths “dropped dramatically” and drug-dependent citizens were given access to sobering opportunities.
Anecdotally, Bowers notes the common town drunk narrative, where when law enforcement has to get involved in an instance of ‘That’s just Otis being Otis’ where they then help him get home safely without any repercussions.
This, Bowers says, is exactly the same reaction that would occur if someone has a crime license.
Overall, Bowers writes that the vast majority of individuals who continually recidivate low-level nonviolent crimes are not breaking the law constantly because they want to; rather, they’re breaking the law because they need to due to life circumstances.
So, they should stop being punished by being allowed avoid the “dehumanizing” criminal justice system, Bowers concludes.
Bowers argues that it’s important to understand the roots of criminality first before judging “pragmatic” and “experimental” steps in reducing recidivism
Too often, he contends, low-level and nonviolent criminals who exhibit habitual offending behavior are over-blamed, and “punished harshly” without consideration of their specific circumstances that sparked their criminality in the first place.
Bowers illustrates this by describing someone who repeatedly hops turnstiles and doesn’t pay the subway fare in a metropolitan city.
On the surface, the individual appears to simply be someone who is an “irrational actor” — or someone who disregards social control and the law. But criminologists and psychologists would argue that, for many, low-level nonviolent criminality “comes to signal something other than the need for punishment.”
“It signals the presence of need,” Bowers writes.
In other words, a criminal who continually recidivates these low-level nonviolent “quality-of-life” offenses understand that if they could face weeks or months in a local jail.
However, their need to survive and in this case, travel around a big city, is more important than their fear of being punished by the law.
“Perhaps, the recidivist was compelled by economic or social circumstances,” Bowen proposes. “Perhaps, he was internally compulsive or cognitively impaired.”
So, Bowers believes, “in these circumstances, it would be better to just stop punishing” and endorse “harm reduction” philosophies — like “crime licenses” that help identify who commonly commits non-violent quality-of-life-crimes and needs aid.
“I present the crime license as a modest opportunity to test bolder concepts like legalization, prison abolition, and defunding police.”
Josh Bowers, an expert in criminal procedure, is the F. D. G. Ribble Professor of Law at the University of Virginia Law School.
Read his complete paper here.
Andrea Cipriano is a TCR staff writer.