We are frequently lectured that the country should adopt "evidence-based" sentencing. That opaque language is simply code for "reduced prison terms" (or, for many crimes, none at all, see, e.g., Prop 47).
Still, no sensible person can deny that sentencing should, in fact, be based on evidence -- that is, we need to look honestly at what's happening in the world and make our decisions in light of what we see.
If we do that, two facts stand out. First, since the evidence shows that increased incarceration has helped bring about a huge decrease in crime (crime rates are 50% lower than they were when "mass incarceration" took off 25 years ago), we should build upon that success rather than cash it in. You change what's failing, not what's working.
Second, the evidence about what criminals do after release must also inform our thinking, and it is far more depressing. As last week's BJS report recounts (admittedly down in its seventh paragraph), slightly more than three-quarters of prisoners recidivate within five years of release, almost 30% for a violent crime.
In other words, our efforts to rehabilitate have been as much of a failure as our efforts to incapacitate have been a success. (Not that this is new).
What to do?
My answer, with apologies for "going soft" in my old age, is that we have to treat inmates much better than we do now.
Probably the first thing to come to terms with -- as my libertarian friends (and adversaries) understand so well -- is that there is a limit on what any government program can do. Prisons could provide educational opportunities on the level of Princeton and Stanford, and it wouldn't do any good unless the inmate has decided on his own that he wants to change.
When he makes that decision, many things are possible. Until he does, nothing is. You can lead a horse to water, etc.
Thus, the key question is: What can we do to encourage the inmate to change the ways in which he chooses to deal with the world? In suggesting an answer, I should confess my own limitations. I am not a criminologist, a psychologist, or a social worker. Still less am I a philosopher or a theologian. I have never worked in a prison, and thus have little feel for the practical limitations of my proposal, which may be numerous and daunting.
But I know what I see. Every now and again, I'll watch a TV show like "Lockdown" or "Hard Time in Maricopa County" or some such thing. There seem to be a lot of them on the air right now.
Now I understand that what you see on TV is an edited, and thus necessarily a distorted, picture, even when the producers are doing their best to play it straight. But it will tell you something.
What I've seen is that prison conditions are shockingly cramped, cold, ugly and spartan, and the way prisoners get treated conveys a message that we expect the worst. I understand the reasons for that expectation, but I very much doubt it's a message that lays the groundwork for a change of heart.
My experience is that people tend to live both up to and down to expectations. If you treat them -- including treating them with discipline -- as if you expect them to be responsible, they become responsible. They might not become as responsible as you want as fast as you want, but the trendline will almost always improve. If you show them trust, they tend to become honest. If you show them generosity, they tend to become giving. None of this is a sure thing, and none of it happens all the time. But I've seen if happen often enough to be sure it's true.
Conversely, if you show people -- either by the conditions in which you keep them, or by your attitude in handling them, or both -- that you see little value, worth or potential in them, that is what you're going to get. And, as our shockingly bad rehabilitation statistics tell us, it's what we're getting.
We should keep our incarceration system because, for the main purpose for which we adopted it (crime suppression), the evidence shows it works. We should change the way we treat inmates while incarcerated because the evidence shows it fails.
I suppose many liberals and a goodly number of conservative Christians would say we should change the conditions of confinement simply because they are harsh to the point of being (in their view) cruel. We should do this, they would say, regardless of the impact on rehabilitation.
Whether I'm a conservative Christian is, of course, irrelevant to this entry. Religious beliefs, whether mine or the Pope's or Pat Roberson's, do not, in this country, dictate secular law or social policy. The question on a criminal law blog is what, within constitutional limits and traditional American values, works to decrease crime victimization. Incarceration does. In my opinion, more respect for the potential, the dignity, and (dare I say it) the humanity of those incarcerated will as well.
Nice points, Bill, which prompt a number of follow-up questions:
1. Do you recognize that treating prisoners better --- i.e., having fewer prisons that are "shockingly cramped, cold, ugly and Spartan" --- would require a significant increase in taxpayer resources spent on existing (and new) prisons?
2. Do you acknowledge that one way we might have the extra taxpayer resources needed to treat existing prisoners better would be to (a) send fewer people to prison in the future and/or let some in now leave early (even just a 10% reduction on both fronts would make a big difference), and/or (b) legalize and tax marijuana and then allocate saved resources and new tax revenues to that end?
3. Do you realize that much of the sentencing reform (and marijuana reform) movement that you like to criticize have these goals and means in mind?
1. Yes.
2. Sure, that's one way. Another way would be to cut back on Medicaid. Another way would be to cut back on scientific research. Etc. We could also legalize and tax prostitution (down to, say, the age of 14), and legalize and tax heroin, meth and Ecstasy, et. al. Everything is a choice among alternatives, yup.
But instead of doing that, the country has chosen to spend its money getting safer, and has wildly succeeded. I agree with that choice and hope it continues.
P.S. One other mistake is treating government spending as a zero sum game. But anyone who's watched government budgets over that last few decades knows better. The question is not whether the government will spend; it will. The question is how much the increases will be, and for what projects.
The administration in power spends on the priorities it wants to. This is true now, it was true in the past, and it will continue to be true. DOJ spending is not going down no matter what becomes of sentencing "reform." Betcha!
3. No, I don't. I think the real engine of the sentencing "reform" movement has next to nothing to do with fiscal restraint, which is a recently discovered make-weight designed to hookwink conservatives who aren't paying attention.
The movement instead takes root in ideology -- an ideology that sees criminals as victims rather than victimizers; America as a racist cauldron; law enforcement as the enemy; the culture as a nauseating mix of punitive, cowboy Wahooism; and more and more.
Some of the evidence for this lies in the attitude of backers of Prop 47 -- California's most recent version of sentencing "reform." In the face of very widespread reports of increases in crime in Prop 47's wake, its backers could care less, even in those rare (but not non-existent) instances in which they will acknowledge Prop 47's role at all.
Thanks for the direct responses, to which I have a few follow-ups:
1. Why do you think there are so few resources now spent on making prisons better in the U.S.? Does it trouble you at all that U.S. prisons have more in common with prisons in more repressive regimes than in other western ones? Dare I suggest that the tough-on-crime crowd's anti-offender rhetoric drives these realities far more than the soft-on-crime crowd's humanity rhetoric?
2. I concur that we could take monies from lots of other government programming to pay for much nicer prisons. I suspect folks on the left, who generally favor more spending generally but less on the military, would readily advocate taking moving monies from the penagon to prisons. But I am unaware of any advocacy on the right to spend more on prisons, so I think you should see that the efforts to repurpose monies already spent on criminal justice is an effort to find common ground on where savings can be had.
3. As with immigration reform or health care reform or education reform, Bill, criminal justice reform has lots of different people interested in lots of different parts of the system driven by lots of different ideologies. I think you might find a lot more reform to support if you were not so troubled by the ideology of some of the more extreme advocates of reform.