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The "Incarceration Nation" Shell Game, Part II

Prof. Cecilia Klingele of Wisconsin Law School responded to my critical assessment of her SSRN piece (an assessment I discussed in my earlier entry) with this comment on Sentencing Law and Policy:

A small clarification. The paper does not suggest that community supervision (or any lesser sentence) should replace prison in cases where it is warranted for just punishment or public safety. The paper discusses the proper (and improper) use of community supervision in typical cases involving people whose crimes are minor, whose culpability is low, and/or whose threat to public safety is minimal; and for those who have served their sentences and are transitioning back to their communities. When community supervision is used, of course it should be thoughtful, well-resourced, and carefully executed. My point is that it is often used in ways and for people who would be better punished in differently, be it through jail time, fines, or unconditional discharge. If anything in the paper misleads on that point (or any other), I welcome suggestions for revision and clarification.

My response to her follows the break.  I hope this will turn out to be an extended discussion, because the actual plans and agenda of the "incarceration nation" critics  --  if those plans are implemented  --  are vitally important to any fair assessment of whether the rest of us should support or oppose them.  As readers will see, I continue to have considerable doubts.

Prof. Klingele --

[You begin by saying,] "A small clarification. The paper does not suggest that community supervision (or any lesser sentence) should replace prison in cases where it is warranted for just punishment or public safety. The paper discusses the proper (and improper) use of community supervision in typical cases involving people whose crimes are minor, whose culpability is low, and/or whose threat to public safety is minimal..."

With all respect...there are going to be vastly differing views of the meaning of the clause, "...people whose crimes are minor, whose culpability is low, and/or whose threat to public safety is minimal." For example, what specifically do you mean by a "minimal" threat to public safety? This has already come up in the prison release/Plata-compliance plans in California, where the promise of releasing "only" those who are "minimally" dangerous to others has proved unreliable if not point-blank false. There will be similar widely varying views of the meaning of your phrase "...in cases where it is warranted for just punishment or public safety." There are many in academia (and I suspect, although I don't know, that you're among them) who have thought for years that prison is neither warranted nor just for a big percentage of the criminals upon whom it is now imposed.

I do not believe there is any reasonable argument that the gist of your paper's suggestions is in tension with one of the main implicit (and often explicit) promises of the anti-"incarceration nation" movement: That, if we were to start releasing prisoners, we would replace prison with more and stronger community supervision, not less and weaker.

Finally, I wonder whether you would agree that increased incarceration over the last twenty years has contributed significantly to the massive lowering of the crime rate (and hence to lower crime victimization) over that time. If so, I wonder whether you would also agree that significantly less incarceration is somewhere between likely and certain to increase the amount of crime.

Professor Klingele has not yet responded to me (and of course she has no obligation to). I will publish any response she cares to make, unless she would prefer that I not.  (She did give her email in her response, which I have intentionally omitted).


I just discovered this post, and am delighted to offer a response. (I welcome follow-up discussion and suggestions on my paper from anyone who cares to offer it, and can be reached at cklingele@wisc.edu).

First, you are right that people of goodwill can disagree mightily about where to draw the line on who deserves prison and who does not. In many cases, the answer is not clear. Regardless where the line is drawn, however, I think my thesis holds true for a significant number of cases in the criminal justice system.

Assuming that not everyone convicted of a crime requires imprisonment, then the question becomes what to do with those who do not. I argue that we can take that group of people (however defined) and divide them into roughly three camps: (1) those who would benefit from community supervision and the structure, resources, and supervision it provides (when well-executed); (2) those who, while not deserving of prison, cannot plausibly comply with the conditions of release because they are not willing or able to do so; and (3) those whose conduct is blameworthy enough to merit the stigma of conviction, but who do not require further punishment for reasons of either punishment or public safety. For the first group, I would advocate robust supervision, with conditions that reasonably relate to the risks the individuals pose and the needs they have that affect the likelihood of criminal re-offense. For the second group, I think a fine or jail sentence (depending on the nature of the crime) is an appropriate alternative to a term of supervision that is predictably destined to end in revocation. For the third group--which may be very small or quite sizeable, depending on the charging practices in any given jurisdiction--I would advocate what many states call "unconditional discharge," which is letting the conviction serve as the punishment. Given the stigma of conviction and the many formal and informal collateral consequences that come with it (from loss of employment to deportation to social ostracization), in some cases a person may be adequately punished by conviction alone(or by conviction plus restitution or community service).

This argument is not intended as an invitation to decarcerate everyone and his brother, or to stop punishing people for violating the law. Prison is an appropriate sanction for many crimes and offenders, and the criminal justice system ought to hold people accountable for criminal behavior in proportion to their moral culpability and the harm they cause. Instead, it is an invitation to think about how the state can most wisely and fairly punish people who have committed crimes but who do not require imprisonment. Again, reasonable people will disagree over who these individuals may be, but I am fairly sure we all agree that not every criminal violation demands imprisonment.

As far as crime rates go, I think the answer turns on what we mean by "significantly reducing" the prison population. As I have written elsewhere, rushed large-scale attempts to decrease prison populations through back-end release often fail, from the perspective of both public safety and legitimacy. Any reduction in imprisonment needs to occur thoughtfully, and should happen primarily at the initial sentencing hearing, where a judge is best-positioned to decide what punishment is needed in any given case and whether a given offender can fairly remain in the community or requires a term of custody. That doesn't mean that judges won't make mistakes and sometimes place the wrong candidates on supervision (or discharge them or fine them improperly), just as they will sometimes send people to prison who may not deserve that sanction. Ultimately, though, I think we can develop more principled ways of punishing people that rely on a spectrum of responses that are proportionate to the crimes they commit and the effect of those crimes on victims and communities.

I hope that's responsive. Thank you for this conversation. It's one very much worth having.

Professor Klingele,

Thank you for your very thoughtful answer. I'd like to take some time before responding. Some of us (actually, quite a few of us) are older than you, and don't have your energy. Plus, it's half past eight in the East.

I would only preliminarily point to Steve Erickson's post, "When Monitoring Bracelets Fail." Such bracelets have become a major part, perhaps the major part, of community "supervision." The catastrophic results of the failure of that supervision -- a little girl raped in front of her mother, followed by the knifing-to-death of the mother in front of the daughter -- are a stunning reminder that a humane criminal justice system simply must err on the side of incarceration.

The episode Steve recounts would be strong evidence for this view even if it stood alone, but it doesn't, as I'm sure you know. And if we loosen community supervision in the ways your SSRN piece suggests -- and still more if we start to replace imprisonment with such supervision -- more such stories are inevitable.

There is no system that will be error free. All adults know this. The only realistic question is where the risk of error should fall, and how much privileged law professors like you (and me, an adjunct at Georgetown) can ask others to take, knowing that the others for by far the most part won't be living in the safe neighborhoods you and I can afford.

Again, I very much appreciate the opportunity for this conversation.

(At SL&P, I use the handle OhioPD -- here, I'm logged in with my googleID)

I still haven't read Prof. Klingele's article, but I absolutely agree with the thrust of her comment here.

The root of my disagreement with you, Bill, can probably be boiled down to this single statement: "a humane criminal justice system simply must err on the side of incarceration." And your reliance on Steve Erickson's anecdote furthers the point. Anecdotes are no basis for policy, because quite frankly there will always be horror stories to recount. And I can say this as someone who not only works and advocates for those who are responsible for horrors, but as someone who lives in one of the "unsafe neighborhoods" where crimes often occur. My home is, for want of a better term, "in the hood"; the houses on either side of me are boarded up, and this past New Year's Eve was full of gunfire. And yet, I believe strongly that my state overincarcerates, particularly in the rural counties where local jail space is sparse and where it costs nothing to send someone to prison.

Your latest comment oversimplifies the issue. The question isn't where the risk of error will fall, it's what the risk of error is. For low-level drug possession and property crime offenders, the risk of violent recidivism is small--measurable, but small. For serious violent felons . . . well, that's a different question.

I plan to read the article tomorrow, and will comment further then.

Welcome to C&C.

First, to be honest, I also have not read the article (I read only the abstract). When I used the word "article" over at SL&P, I meant Doug's entry. I should have used clearer language. But Prof. Klingele has explained things in her note on this thread, so I feel like I have a decent grasp on where she's coming from.

Second, in a system in which error cannot be avoided (which is to say, a system designed by human beings), it is very much the issue who must bear the risk and burden of mistakes. We have a choice -- either the adjudicated criminal, or the future victim. To me, the question is essential, and the answer easy.

If the "anecdote," (as you antiseptically characterize the story of the 10 year-old being violently raped and then her mother being stabbed to death in her presence) should not be a basis for policy, then neither should other "anecdotes" (like the Sandy Hook massacre). But I have not noticed any objection to liberals' using Sandy Hook to a fare-thee-well as a means of attempting to legislatively overturn Heller and stick it to those know-nothing wahoos who own guns, almost none of whom are criminals.

In general, however, I agree that if something truly is a stand-alone anecdote, it's a poor basis for policy making. That's what I would say if the child-rape-and-murder anecdote stood alone. But it doesn't; it's merely the most recent, and one of the most gruesome, of a flock of similar anecdotes about community so-called "supervision" that had catastrophic results. The stomach-turning story of the capture and years-long rape of Tracy Duggard by a fellow supposedly under such "supervision" comes immediately to mind.

And there's this too: We all know that states and localities have neither the funds nor, particularly, the will, to actually do the supervision needed. It's likely very often to be a sham. In many places, it already is.

But for however that may be, at some point, an accumulation of "anecdotes" becomes known by another name -- facts. And facts are an excellent, indeed the best, basis for policy making.

I anticipate giving a more comprehensive reply later, but will let it go at that for now.

1) Local supervision is cheaper than prison.

2) I refuse to accede to lack of will as a basis for choosing prison over local supervision. Lassitude on the part of local authorities is to be scorned, not coddled.

3) I specifically mentioned low-level drug and property offenders as a place to drawn the line. You brought up sex offender child rapists and murderers. I don't have much problem sending them to prison.

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