We are told more and more that minor property crimes should not be punished with jail. That was the principal rationale' for California's passage of the predictably disastrous Prop 47. We need to be "smarter" about sentencing -- use our resources better, don'tcha know.
Here is the story of a "minor property crime" I ran across a few days ago just listening to the local news:
LANGLEY PARK, Md. (WUSA9) -- A four-year-old boy's wheelchair was stolen from a building in Langley Park, according to Prince George's County Police.
The theft occurred Sunday night in the lobby of an apartment building on Merrimac drive, police said.
Surveillance video shows the suspect pushing the empty wheelchair through a parking lot.
The family of four-year-old Joshua shared a video of her son. "This family already faces challenges and shouldn't be burdened with the emotional and financial stress of the theft of this wheelchair. The suspect we're looking for has no heart," Captain Ken Humbel said in a statement.
I'm happy to report that a local family donated a replacement wheelchair.
The question I'd like to pursue is this: If jail is not appropriate punishment for the wheelchair thief, what is?
A fine? Do you think a fine will ever actually get collected? And won't our adversaries oppose collecting it in any event, since that will only lead to the famous "downward spiral" of unpaid fines and increasing callousness?
Probation? And what will that do, even if there is genuine supervision, which is quite unlikely? How would probation have prevented this offense to begin with? Will he ever even get a visit from the probation officer?
Community service? If you're running, say, a food bank for the poor, do you want this guy working for you? What do you think the chances are that he won't take a pound or two of hamburger while you're not looking? Or pilfer a few dollars from a co-worker? Or, for that matter, show up for work at all, even if you could trust him?
What do you think the handicapped boy's family will think when they find out that the creep who did this gets what will effectively be no punishment at all? Will they feel like the system did justice? Taught a lesson? Cared about them?
Here's the point. It's not just that someone who would steal a wheelchair from a little boy deserves jail; I would think that obvious beyond any serious argument. It's that jail is the only thing that has a chance of working, as either punishment or deterrence.
Our adversaries need to wake up to the obtuse, and perverse, implications of what they propose from On High.
P.S. Here's a happy little boy getting his replacement wheelchair, delivered by the Occupying Fascist Army, a/k/a the police:
Good questions, Bill, and I will take a swing at what kind of sentence I think could be MUCH more economically effective than, say, a lengthy jail stay. Specifically, rather than spending roughly $25,000 of taxpayer resources on a jail term, how about a combination of shaming sanctions AND community service AND long-term economic consequences AND a threat of incarceration if the offender, given a second chance, fails at doing his duty.
Let me provide some possible specifics:
1. MODERN SHAMING: The offender, once convicted, should have to make an extended YouTube video discussing his offense and its consequences for the victim and for him once caught. That shaming video should be required to be available as a link always accessible for at least a year on any/every digital media that the offender uses to communicate --- e.g., linked at the bottom of every e-mail, twitter/facebook post --- and perhaps different types of ads can be put into the video with any/all the revenue from the ads going into a victim compensation fund.
2. COMMUNITY SERVICE: The offender, once convicted, should have to work for a minimum wage (without any other benefits) for a full year for any employer eager for an employee to work at these wages (and subject to being fired at any time). During that year, the employer could/would potentially get to profit from (a) cheap labor, and (b) not having to pay for health care benefits (because that would be covered by the state, as would be the case if this offender spent the year in jail). (The offender would be permitted to get another job after this year of minimum-wage work.)
3. LONG-TERM ECONOMIC CONSEQUENCES: After the offender reaches the age of 40, up to 10% of his wages or government benefits would be garnished until the state recoups all the costs of his apprehension and conviction UNLESS the offender had already made restitution and/or a prosecutor determines it would be an economic hardship to make him pay.
I raise all these ideas because I fear, Bill, that a jail term for this kind of offense is both economically costly and counter-productive. As you often note, Bill, post-jail/prison release recidivism statistics are crazy high, and I think this is a direct by-product of using deprivation of liberty (which breeds laziness and disrupts life-plans) as a punishment even for minor crime when forced work and long-term economic consequences might be much more effective (and more lucrative for the state and for victims).
Do you like any/all of my proposed alternatives? As you perhaps see, the first two punishments are designed to last only as long as the jail term --- but they will serve to make money for the state and victims and private business rather than cost the state money. The final punishment is intended to ensure the offender long feels the sting of his crime in ways seemingly more economically effective than just being stuck with a felony record.
What do you think?
P.S. Given that jail has been, I presume, the norm in the jurisdiction here, obviously the threat of jail did not work as a deterrent in this case. I contend my suggested alternatives are much more likely to (1) be noticed, (2) be considered fair, and (3) prompt others to understand there are real economic and social consequences for committing a harmful economic/social crime with real victims.
"Bill, and I will take a swing at what kind of sentence I think could be MUCH more economically effective than, say, a lengthy jail stay. Specifically, rather than spending roughly $25,000 of taxpayer resources on a jail term, how about a combination of shaming sanctions AND community service AND long-term economic consequences AND a threat of incarceration if the offender, given a second chance, fails at doing his duty."
My strong hunch is that he's already HAD a second chance, and a third and a fourth. A person does not begin his career as a thief at that age or with that target. My other hunch is that he discovered that the system simply does not take his crimes seriously -- that he's had probation or suspended sentences before -- which is why he keeps on doing it.
It's time for a different message.
As to specifics:
1. SHAMING. If ever a human being were incapable of shame, this is the guy. You can't shame a man with no conscience. Plus, he'll have plenty of people ready to say it wasn't his fault, it was his mommy's fault, his daddy's fault, the system's fault, etc., etc.
2. COMMUNITY SERVICE. I've never heard of a sentence of "community service" consisting of an order to work for a private company, and I wonder whether it's constitutional. But for however that may be, a private employer (1) exists to generate profits for the owner, not to serve the community in the sense that, for example, the Red Cross does; and (2) could not, would not, and should not have to bear the litigation risks you'd buy into if you knowingly bring someone like this into your business. When he starts stealing from his co-workers and the customers (not to mention from you) they'll say you had advance notice and hired him anyway, knowingly putting them in jeopardy.
A guy who will steal from a four year-old will steal from anyone.
3. LONG TERM ECONOMIC CONSEQUENCES. What you say here is 100% at odds with numerous entries on your blog, espousing the exact opposite: That as time passes, the slate should be wiped clean, not continue to dog the offender for years. "Ban the box" and so forth.
But it's impractical in any event. The system right now can't keep track of its probationers, much less effectively collect fines, and still less collect garnishments from wages that it's speculative to think he has or will ever get.
"[A]jail term for this kind of offense is both economically costly and counter-productive. As you often note, Bill, post-jail/prison release recidivism statistics are crazy high, and I think this is a direct by-product of using deprivation of liberty (which breeds laziness and disrupts life-plans)..."
That is where you're wrong.
The reason people commit crime after release from jail is identical to the reason they went to jail to begin with. This case illustrates it vividly: Lack of character, lack of empathy for the victim, rules are for suckers.
When people think that way, I am not responsible, you are not responsible, and The System is not responsible. THEY are responsible, and they can either clean it up or be put where they won't harm four year-old's.
It's true that jail has costs. Replacing this wheelchair had costs (fortunately borne by a generous person). The feeling of shock, loss and violation the mother must have had when she saw the wheelchair had been taken has costs. The little boy's sadness has costs. His realization at such a vulnerable age that there are people like this in the world has costs. Wage garnishment has costs. Continuing sanctions past age 40 has costs.
Justice has costs one way or the other. It's all tradeoff's.
The principal question about sentencing, though, remains the same: What has the defendant EARNED by his conduct?
This man has earned jail.
Bill, this is a great back-and-forth, as I think it reveals what is often at the heart of our debates over crime and punishment. Let me explain how I see this, both by explaining my perspective and by summarizing what seems to be your viewpoint:
1. I see all criminal offenders (especially first offenders) as complicated human beings, with proven flaws/sins, but also with the (inherently human) potential to become better people if they so choose. I would like our punishments, in addition to encouraging others not to become criminals in the first place, to try to encourage offenders to become a better person ASAP (ideally at minimal taxpayer cost). My interest in evidence-based sentencing reform is tied to my hope that evidence will help us discover, circa 2015, what punishments are most effective at encouraging offenders to become better persons ASAP at minimal taxpayer cost.
2. Without putting words in your mouth, I read your comments as reflecting a very different view of all (most? many?) criminal offenders: you see offenders like the one in this story as evil, wild miscreants who through their crime exhibit a "lack of character, lack of empathy for the victim, [and that they think] rules are for suckers." Based on this view, you think such evil, wild miscreants, even before being given an initial chance to "clean it up," have just by virtue of their crimes "earned" caging in a jail cell because they need to be "put where they won't harm four year-olds."
(Side note: I know you do not view all federal felony offenders to be evil, wild miscreants who have "earned jail" because you wrote effectively about why Scooter Libby was punished enough by his prosecution, conviction and fine -- I now wonder if you also think David Petraeus was likewise rightly given a non-prison sentence for his federal offenses. For the record, I think leaks by a CIA director to his mistress are far more a demonstration of a lack of character than lots of other federal crimes such as the marijuana offenses of Chris Williams.)
3. I will be quick to concede that a strong commitment to incapacitation via jail/prison makes perfect sense if you view all (most? many?) criminal offenders to be evil, wild miscreants who cannot be readily encouraged by any other means to become better people. But then the hard question becomes how long to you keep evil, wild miscreants in jail, plus a worry that the sexual violence, degradation and disruption of family/community ties that incarceration creates may make the jailed persons even more evil and wild. (I worry about this a lot because high post-prison recidivism rates suggest a fair number of folks who might not be so evil or so wild when they first go to prison become more evil and wild after being treated more like an animal needing to be caged.)
4. I agree 100% with you that its all about costs and tradeoffs (though I would call this practicl reality, not "justice" --- typically people invoke the deontological term "justice" to deny the need/value of tradeoffs). And, in my view, we now too often make bad decisions with respect to modern crime/punishment costs and tradeoffs --- especially with respect to non-violent drug offenses and low-level property crimes. (Ironically, you recognize we lack resources needed to make better tradeoffs with my suggested alternatives to incarceration, but when will you acknowledge that resources are lacking because of poor past economic decisions resulting from over-reliance on incarceration for non-violent drug offenses and low-level property crimes?)
I see the term "evidence based" sentencing has reappeared. As an abstract idea, it seems appealing but I am not entirely sure what it means. Does it mean the sentence should be determined based on some sort of statistical analysis on what the optimal sentence is to ensure the offender doesn't re-offend? Or more broadly and I am not being sarcastic, evidence of what?
"Or more broadly and I am not being sarcastic, evidence of what?"
Great question.
My experience is that when you see a gauzy but high-sounding expression like "evidence based sentencing," watch your wallet.
What "evidence based sentencing" almost always turns out to me is: "a lower sentence than the court was going to give absent defense counsel's blizzard of highly dubious social science razzle-dazzle."
The razzle-dazzle can consist of a number of things, from some shrink's guesswork report about how Mr. Nicey was abused 40 years ago, to about however the "culture" of whatever group he's in "forced" him to steal the ____ (fill in the blank, e.g., sneakers, TV, client's trust fund), to the latest "report" from some "neutral scholars" like the Brennan Center about the 37 historical ways in which Amerika stinks and gave the defendant no realistic choice.
You see the same phenomenon going on with other catchwords in criminal defense like "sentence reform." It has zip to do with "reform" as anyone would normally understand it. What it actually means is "sentence reduction" so that Mr. Nicey can exit prison faster to repeat his behavior quicker.
Naturally, the actual meaning doesn't go over too well for PR purposes, hence the creation of some gossamer phrase that sounds good but whose exact meaning is a mystery.
Doug would probably be astonished to find out that I agree with him to a point.
For first time, non-violent offenders, I see no problem with his proposals. Shaming can be effective. As can community service and a long-term economic punishment IN SOME CASES. I am not certain that an 18 year old who stole a car for a joy ride or had a little coke for personal use is going to get much out of prison. I can see an intervention program in that mold.
However, there are several huge stumbling blocks to such an approach that are likely insurmountable. The least of which is not that I suspect it is a classic bait and switch. Doug and his supporters will be all for such a program until it is in place. Then, they will want virtually everyone (including drug dealers and other violent people) in the program. Once in it and they have reduced the prison population by hundreds of thousands, the sob stories will begin immediately. John Doe attempted suicide or committed more crimes because of being constantly mocked from his "public shaming." (If you doubt this, think of the attacks on the SO registry based on the same premise). John Doe had to commit more crimes because his minimum wage "community service" left him in such poverty. Not to mention the children (the children!) who suffered because daddy could not earn a decent living. Same argument with wage garnishment with the added hardship of never being able to get past his crime (he paid his debt to society!).
So, excuse me if I do not take your offer seriously.
In the end, Doug's proposal has the same fatal flaw as all progressive criminal justice solutions. It merely treats the same symptoms as the others do, never getting to the root problem. Until we get back to teaching the Christian principles of right and wrong (and you need not be a Christian to adopt them) and doing right because it is right instead of fear of punishment, we will continue to fill our prisons and only make a difference around the edges.
The number one job of prisons is to protect the good from the bad. Nothing does it better while still staying in the general neighborhood of achieving justice.
Excellent explanation of how, when the defense side gets the public to go their way on Plan A, the push immediately begins for further dumbed-down Plan B (it's only compassionate, dontcha know), and then Plan C, and D, and on and on.
The problem is that they front what they think might sell, always with a more ambitious agenda in mind -- an agenda kept (for the moment) behind the tree.
There is, however, one significant problem with your analysis: What's this stuff about "right" and "wrong"? Are you a Nazi or something???
Yes, Bill, the approach you describe is called the "Overton Window" and is the exact approach they (smartly) use.
https://www.mackinac.org/OvertonWindow
As far as me being a Nazi, there "is not a shred of evidence" to support that. I ordered someone to accidentally scrub my email server clean. ;-)
I am not religious but assuming you are correct the missing piece is the Christian concept of right and wrong, I don't see much society can do to encourage that. I think you either learn it young from your parents or not.
I made a comment to a colleague that a recent manuever of legal trickery made me feel like the "Desert Fox". I know Rommel wasn't much of a Nazi but it is close enough. Or I just watch too many World War 2 shows on American Hero's (fka Military History) Channel.
I am not surprised, Tarls, that you are okay with considering some low-level, first-offenders with alternatives to incarceration. I consider you a sensible person who recognizes that not everyone needs to go behind bars for every felony. I remain unsure, though, if Bill holds this view for anyone other than Scooter Libby. And I would like both you and Bill to let me know if you think --- as I do --- that David Petraeus showed a sufficient "lack of character" and/or dishonored "Christian principles of right and wrong" to justify some term of imprisonment for his seemingly significant federal crimes.
In addition, I fully understand why you and Bill think advocacy for Plan A will later lead to advocacy for Plan B and C and D. But, not withstanding these concerns, I want to credit you Tarls for saying you would support my Plan A. I am still waiting to hear whether Bill would support my Plan for alternatives to incarceration for some (and only some) non-violent drug offenses and low-level property crimes. Moreover, my affinity for evidence-based programming is premised in want to find out, ASAP, if Plan A is working to reduce crime and reduce taxpayer costs. If it does, I want to move on to Plan B. If it does not, I will favor repealing Plan A.
In the end, Tarls, your points spotlights my disaffinity for any mandatory sentencing scheme for non-violent drug offenses and low-level property crimes because judges will not be able to independently assess which cases might possibly benefit society and taxpayers from exploring alternative to incarceration.
Finally, I am genuinely interested in understanding what you think "Christian principles of right and wrong" have to say about marijuana use and about a large police state seeking to prevent such use of a plant for medicine or recreation. As I am sure you know, many claimed that "Christian principles of right and wrong" supported alcohol prohibition a century ago, and perhaps you share that view and think it was a mistake to stop devoting criminal justice resources to trying to stop people from drinking intoxicating beverages. Due to my Jewish heritage, I am not sure if I was raised with "Christian principles" and I am sincerely interested in what you think these principles have to say about modern debates over marijuana reforms.