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January 25, 2007

Advocating imprisonment as a last resort

The New York Times has this potent editorial that laments our nation's heavy reliance on incarceration and presents Congress with a to-do list for needed reform.  Here's how it begins and ends:

The United States is paying a heavy price for the mandatory sentencing fad that swept the country 30 years ago.  After a tenfold increase in the nation's prison population — and a corrections price tag that exceeds $60 billion a year — the states have often been forced to choose between building new prisons or new schools.  Worse still, the country has created a growing felon caste, now more than 16 million strong, of felons and ex-felons, who are often driven back to prison by policies that make it impossible for them to find jobs, housing or education.

Congress could begin to address this problem by passing the Second Chance Act, which would offer support services for people who are leaving prison.  But it would take more than one new law to undo 30 years of damage....

The only real way to reduce the inmate population — and the felon class — is to ensure that imprisonment is a method of last resort.  That means abandoning the mandatory sentencing laws that have filled prisons to bursting with nonviolent offenders who are doomed to remain trapped at the very margins of society.

Making imprisonment a true last resort is a central theme that shapes much of my advocacy on this blog:

My personal crusade against over-reliance on imprisonment is based in part in my (naive?) belief that we are a country built upon, and committed to, principles of liberty and freedom.  I view broad state power to lock up citizens in small cages for long periods of time — a power likely never even imagined by the Framers — to run contrary to these principles of liberty and freedom.  In contrast, treating prison as a last resort would honor these principles.

The NYT editorial is powerful in part because it sets an agenda for the new Democratic Congress if it has any real interest in progressive reforms.  Notably, at the federal level, Democrats bear much responsibility for our modern over-reliance on imprisonment.  The Democrats controlled Congress in 1986 when the most significant federal mandatory minimum sentences were created.  Also, Democratic President Bill Clinton played a key role in rejecting the US Sentencing Commission's 1995 efforts to fix the crack/powder disparity.  Here's hoping the new Democratic Congress will find the courage to chart a new and sounder course.

January 25, 2007 at 07:34 AM | Permalink


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Our society should be very very very careful about releasing violent juveniles back into society.

Three examples:

1) Lionel Tate. Everyone sure got worked up over his fate, but then he decided to stick a gun in a pizza deliveryman's face (something which could have had very tragic results). Tate is behind bars for a very long time.

2) Duncan, the animal who has confessed to the Groene murders. He raped a boy at gunpoint while 16. He was released after a little more than 10 years. At least 7 people are dead because he was not locked up for good, as he should have been.

3) The juvenile offender in Washington DC who participated in the murder of the British man and the sexual assault of his companion. He got a scant five years. Besides the fact that the short sentence is an obscenity, anyone want to have this guy living next door to them once he gets out? Keep in mind, of course, someone will have to.

The issue is not just "oh my God, he's just a child"--it's also public safety, and a sense of justice. The 11 year old killer in Michigan just got released after about 10 years. His victim's family is not pleased. And I don't blame them. Anyone want that guy living near your children?

People who likely considered themselves enlightened got all worked up over the fate of poor Lionel Tate. A pizza delivery man got a gun stuck in his face due (in part) to that enlightenment.

Yes, it is harsh to send a child away for the rest of his life (although there is always the chance of clemency), but there are very harsh consequences to not being harsh to violent juvenile offenders.

Posted by: federalist | Jan 25, 2007 8:30:30 AM

With an indeterminate sentence the length of confinement is decided by the parole board. In Iowa the parole board has an immense case load and they have one of the smaller prison systems. The Iowa BOP has been using risk assessment tools for a long time but there can be nasty surprises. People have unrealistic expectations of the parole board and have been very critical of some of their decisions. The Iowa BOP has been reluctant to parole violent offenders for a very long time and the superposition of mandatory minimum sentences on a indeterminate sentencing system did make a difference but not as much as claimed.

There are numerous reasons for the long term growth in the population of State prisons and the NYT editorial notes a number of them. Too many people have this bogus notion that prison crowding can be fixed with a one-size-fits-all patch (namely doing in mandatory minimums). I agree that subject of excessive sentence lengths is an important issue but it might help put the matter in perspective if you knew how long it would take for half of the persons in prison on a particular day to be released. I was able to determine that time for the Iowa prison system and it turned out to be 18 months. Persons serving mandatory minimum sentences are prison much longer than that.

Posted by: John Neff | Jan 25, 2007 8:45:45 AM

federalist, do you also believe that our society "should be very very very careful about releasing drunk drivers back into society"? I greatly respect your concern for victims of violent crime, but how about the victims of drunk driving?

Of course, to paraphrase your comment, "it is harsh to send a drunk driver away for the rest of his life (although there is always the chance of clemency), but there are very harsh consequences to not being harsh to drunk driving offenders."

My sense is that drunk driving is a crime that is likely more deterrable than most juvenile crime, thus I have more faith that long sentences for drunk driving could increase public safety. And statistics suggest that, in terms of the health and safety of my children, I should be more concerned about drunk driving than about violent juveniles (or terrorists, for that matter). So should pizza delivery men.

And since your posting name evokes the Framers, I wonder about your views on this famous Ben Franklin quote: "Any people that would give up liberty for a little temporary safety deserves neither liberty nor safety."

Posted by: Doug B. | Jan 25, 2007 8:50:53 AM

Doug B.,

As for drunk drivers who kill or maim, I believe in very harsh punishments. Very harsh. I also think that drunk driving laws should gradate punishment based on the BAC.

As for Ben Franklin's quote, I think it a bit snarky. Society has the right to punish violent offenders, and I for one don't see a "let's be nice to the poor juvie killers" as a component of liberty.

Posted by: federalist | Jan 25, 2007 9:05:48 AM

The biggest problem we have in this is its consistent framing, as seen in Federalist's comment, as an "either-or" choice--either prison (and its own conspicuous failures strangely never get mentioned) or the subsequent outrages. The idea that, as studies have shown consistently, for most offenders there are alternatives that are not only more cost-effective but also deliver more long--term public safety is never part of this frame and, since the frame dominates our "debate," never part of proposals with real promise of success. Are there guys who should be locked away for long periods or even forever? Absolutely, both for their violence and/or persistence at crime. But our blanket devotion of resources toward the least cost-effective means of stopping crime for people who could be effectively dealt with in other ways, in fact, diverts resources from the more public safety efficient alternatives AND from law enforcement which could go after the truly heinous among us with more vigor. Knee-jerking against suggestions of rethinking what we're doing and cherry-picking cases that support the dominant frame when so many exist that don't just prevent us from the hard work of determining what sanctions best fit what offenders. Further, it diverts us from making sure we have the resources to provide them while leaving resources for the rest of criminal justice to get public safety done without having first to wait for victims to happen. We know how to do better across the board. Defense of the status quo was never wise and is now, as the editorial asserts and is becoming clear to more and more policymakers, indefensible.

Posted by: Mike Connelly | Jan 25, 2007 9:11:04 AM

Funny, though, Mike, that the get tough on crime policies of the '90s helped cause a precipitous drop in crime.

Posted by: federalist | Jan 25, 2007 9:44:53 AM

The NYT editorial is powerful in part because it sets an agenda for the new Democratic Congress if it has any real interest in progressive reforms.

Doug, the problem is that the reforms you're proposing play right into the hands of the Republicans. It gives them the chance to portray Dems as "soft on crime," and offends the independent voters whose votes the Dems need to stay in power. That's why you won't see, anytime soon, a big Democratic push to reduce our reliance on harsh prison sentences.

Posted by: Marc Shepherd | Jan 25, 2007 10:17:14 AM

Where does vehicular homicide result in a life sentence? The National Commission on Drunk Driving does not recommend long prison sentences for drunk driving. They think intense community supervision (frequent random UAs, ignition interlocks, and GPS electronic monitors) is more effective.

Posted by: John Neff | Jan 25, 2007 10:20:41 AM

Federalist, While I agree with you on keeping people in jail, I think that you are soft on crime.

In fact, I think there should be a presumption of incarceration of everyone in society. There are some dangerous people out there. We, as a society should stop trying to make people behave an just keep people in jail where they belong. Join with me, and we will not rest until every American is in jail where they can’t do wrong!

Also, your admission that drunk drivers that do not kill or maim should be released with just slaps on the wrist indicates that you are a liberal that is soft on crime. People who drink at all are a threat to society. They need to be locked up. People that drink and then drive without hurting, COULD HAVE hurt people and are a threat to society. But you want them to run free. Like bunnies.

Unless there is a zero-tolerance policy for all drinking and driving in interstate commerce, then you are putting innocent Americans at risk. From street predators. None of the "proportion to BAC" (which discriminates against smaller people.) Just put them in jail!

I also like your causal relationship between “crime policies” and “drops in crime.” Those people who say that economic prosperity, changes in birth rates (namely the baby-boomers getting too old to commit crimes), and changes in reporting obviously don’t know what “causation” means. To me, it is obvious. The more people in jail, the more causation there is with less crime. Because, as we all know, liberty interests cause crime.

Posted by: S.cotus | Jan 25, 2007 10:22:25 AM

Careful studies indicate that only 25%, give or take by several percentage points either way, of the crime drop was accomplished by incarceration, and those studies did nothing to indicate if more cost-effective methods would have accomplished the same or greater drops, as other studies have indicated repeatedly. New York had greater crime reductions with less use of incarceration than CA or TX, which overrelied on it, and Canada did nothing essentially and saw similar crime drops to our states, which either did prison, law enforcement, or nothing. And now violent crime is going up again in many places, even in states with high incarceration rates, maybe because the lost resources for cops and treatment leave us with offenders returning from that 90s toughness better trained and able mainly for crime. The possibility that crime is a result of cultural streams that ebb and flow from influences only marginally within the control of government policy is something that we rarely even consider, much less acknowledge, for obvious professional and ego-driven reasons. But, as a pretty conservative guy (true conservative, not what gets called that now), I think it's a much better explanation for what happened to crime in the 90s, with substantial evidence to back it in analyses of changing public attitudes toward all authority and institutions, than the idea that the states and nations that "got tough" on crime through incarceration saw crime drop. . . but so did the ones that didn't.

I do agree with your argument that the "sense of justice" is extremely important here, and something that sentencing reformers, with their emphasis on "rationality," both disregard and underemphasize. Without that sense, law itself becomes illegitimate and leads to broader breakdowns, such as when marijuana is equated with harder drugs or when drugs with as much or more power and consequence remain legal or, as Doug notes, drunk drivers who kill aren't punished the same as drunk folks in their homes who kill. The case of the kid in GA who got 10 years versus the pretty teacher who got 90 days for the same thing is another example.

Which is precisely my point. We need to do a far better job of relating crime to punishment, offender type to offender type, and payoff in crime reduction and public safety than we do so people can tell we're taking this seriously and getting better results and can have more faith in what we do. The blanket framing of these issues--prison for every "bad guy"--doesn't do justice (sorry) to our enterprise. And neither do incomplete or misleading anecdotes or statistics. We have the data and the people now to produce much more precise fit and greater public safety. But those systems are having trouble getting going because of the lack of resources and the insistence that challenge of the status quo must somehow mean that the challengers want more crime to happen when what they propose will bring less crime. We can do much better for victims and our communities than we're doing, and it's unjust that we narrow ourselves into doing less than that.

Posted by: Mike Connelly | Jan 25, 2007 10:51:17 AM

Federalist always relies on the most egregious cases. Most people agree that those felons ought to be locked up for a long time — perhaps forever.

But the same system that locked them up, also gave a 10-year prison sentence to Genarlow Wilson for receiving a consensual blow-job from a high-school classmate.

Posted by: Marc Shepherd | Jan 25, 2007 10:55:54 AM

I think drunk drivers who kill people should be executed, if not the first time they kill then definitely the first time they kill after having been caught driving drunk in the past. People who drive drunk know what they're doing, and they usually don't have the so-called mitigating life history (one-parent household, abused as a child, impoverished, etc.) that many other violent criminals have. More than many other scenarios of crime, they're squarely presented with a choice, and they're too selfish to stop drinking or too lazy to call a cab. I imagine (though I don't know) that the rate of recidivism for DUI offenses is higher than other crimes.

My guess is that DUI isn't punished harshly because middle class people and lawmakers are more able to see themselves or their friends/relatives as potential DUI perpetrators than as potential drug dealers or murderers. Lionel Tate is an animal to the average legislator, but a DUI perpetrator is a fellow human being who made a mistake.

I find the sympathy for DUI offenders galling, and I can think of no better example of people who are not treated harshly enough by our criminal justice system.

Posted by: anonymous | Jan 25, 2007 10:59:25 AM

you know, i think prof. berman was onto something with his ben franklin quote.

and if i can paraphrase another long-dead-dude, i think the difference between federalist and some of the other commentaters is that for federalist, it's better to have ten genarlow wilsons than to risk one lionel tate, whereas for folks like me, it's better to risk ten lionel tate's than to have one genarlow wilson.

of course some arrestees will commit more crimes after their release. everyone knows that. but people like me think that across the board, long term, madatory prison terms won't really solve that problem, but will create even worse problems, i.e. genarlow wilson.

i'd rather risk encountering lionel tate than be part of a society that encourages things like the wilson situation.

Posted by: wheeler | Jan 25, 2007 11:40:00 AM

Anonymous, I agree. We should never use imprisonment when execution will do! I think that you are soft on crime, however, when you suggest that people caught drinking and driving should not be imprisoned and then executed. Besides, if we get the death penalty working well, we will begin to see economies of scale and soon it will be cheaper to execute people then to put them in jail. We could probably “streamline” things by requiring trials within two weeks of arrest, and replace appellate panels with single-judge appellate courts. There is precedent for this. In immigration. What is good for foreigners is good for Americans.

But what about the enablers of drinking and driving. Shouldn’t they be punished. What about the restauranteurs, barkeepers, family members, and everyone else involved be punished for the real or potential harm that they inflict on the country ?

Posted by: S.cotus | Jan 25, 2007 11:43:23 AM

The punishment should be proportional to the severity of the offense. For many years sociologists have had diverse groups of people rank offenses in order of increasing severity with remarkably consistent results. Those studies were used to establish the penalties by offense class when that system was adopted. Since then the various legislatures have made arbitrary changes to the penalties often in response to public outrage over some well publicized cases. We now have penalty system that is arbitrary and unfair.

Posted by: John Neff | Jan 25, 2007 12:33:17 PM

I believe that a far more productive way to carry on this discussion is to recognize and acknowledge that the State has several different sentencing objectives, all of which are legitimate. Public policies should be set separately for each. Sentencing systems should be structured so that they respond to all of them, depending on the circumstances. The most restrictive response should control at any one given point in time. The less restrictive responses can be nested within the more restrictive. In this way, all of the State’s objectives can be accommodated. The argument is not which policy to pursue, but what policy should apply to each.

Posted by: Tom McGee | Jan 25, 2007 1:08:46 PM

There is no difference in the conduct or mens rea between a DUI that results in a death and DUI that does not. Yet, for some strange reason, most of you propose to give one category a free pass.

Posted by: S.cotus | Jan 25, 2007 1:32:14 PM

Ok so everyone has the potential to carry out criminal activity and that must be prevented by incapacitation (supervision, incarceration or execution). So if we use universal preventive incapacitation do we bring in people from Mexico, Asia and South America to do the supervision, incarceration or carry out the executions? How will all of this be paid for?

Posted by: John Neff | Jan 25, 2007 1:47:07 PM

John, I don’t think when it comes to safety and the safety of the children that we should consider the economics of it. Even if this means destroying the economy. We never have done so in the past until, as DB points out, things get really bad, and after people are sentenced. There is no need to do so in the future. I am sure that the Federalist agrees.

If he doesn't agree, I hope he can give us a list of crimes he considers to be not worth putting people in jail for, and explaining how they differ from crimes that it is worth people putting people in jail from. However, I will likely think that this list makes him soft on crime.

Posted by: S.cotus | Jan 25, 2007 2:04:32 PM

There is no difference in the conduct or mens rea between a DUI that results in a death and DUI that does not. Yet, for some strange reason, most of you propose to give one category a free pass.

There are many examples in the criminal law where the penalties are more serious for what actually happened than for what could have happened. The most obvious difference is attempted murder and murder.

When it comes to driving, why stop at DUI? A perfectly sober motorist who is caught going 90mph will pay a fine and get points on his record. If the same motorist strikes and kills a pedestrian, the penalties are far more severe. The mens rea is identical in both cases.

Posted by: Marc Shepherd | Jan 25, 2007 3:05:07 PM

Heck, why stop at any crime? Anyone convicted of any crime - from misdemeanor to felony - should be sentenced to life in prison. Each state will have a parole board, although of course no one should ever be paroled because there's a risk they may commit more crimes once they're released. Commit a crime while in prison and you're executed - no ifs, ands, or buts.

Under this system, we can stop worrying about repeat offenders altogether. Nirvana!

Posted by: Anon | Jan 25, 2007 4:07:12 PM

Whether results should matter where conduct/mens rea are the same is actually the subject of debate among criminal law scholars. The Model Penal Code--iirc--punishes attempts equally with successful crimes (e.g. no difference in punishment for murder vs. attempted murder). I'd be over my head trying to summarize the positions, but I thought I'd throw this out there.

The S.Cotus absurdist schtick was funny the first time, but this blog is rapidly descending into the xoxohth cesspool with these sorts of things.

Posted by: | Jan 25, 2007 4:20:38 PM

In regards to the reply at 4:20:38, of course it is absurdist, and it was meant to demonstrate the debates that have manifest themselves within the context of the MPC. It isn’t meant to be “funny” in the sense that, say, a play might be funny, but to use humor to demonstrate a point. This is what we do for a living.

Mr. Shepherd, Of course there are many such examples. However, from what I glean from the above conversations, is that people are arguing that we should not differentiate between conduct that causes a harm and conduct that could cause a harm. This is what above posters have rather explicitly suggested.

Posted by: S.cotus | Jan 25, 2007 5:00:04 PM

I agree that we overuse imprisonment. It is expensive and often counterproductive.

While imprisonment as a last resort would be nice, at this point, simply more rigorously enforcing the principle that more serious offenses should receive greater sentences than less serious offenses would be progress.

I don't agree that this argument has much support from the intent of the founders. Executions were non-homicide felonies were common when the United States was founded. Punishments like whipping and putting someone in the stocks were metted out frequently for petty offenses that would only draw a fine today. Widespread use of imprisonment was a compassionate move to prevent this practice.

Posted by: ohwilleke | Jan 25, 2007 6:41:33 PM

Before independence capital punishment was common and except for Pennsylvania (perhaps a few other northern colonies) prison was not used. After independence the only capital crime was treason (first degree murder was added later) and prison was used extensively. Prison was an alternative to the harsh criminal justice system used in the British colonies.

Community based supervision is an alternative to prison for some types of offenders (but there is always the possibility of the nasty surprise). Risk assessment instruments are not perfect and members of the public who consider themselves to have high risk/vulnerability to crime demand perfection. I would like very much to attend a closing ceremony for a prison that is no longer needed but I don't see that happening in the current climate.

Posted by: John Neff | Jan 25, 2007 7:17:52 PM

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