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January 5, 2012

"Four ways to relieve overcrowded prisons"

I just came across this opinion piece by Arjun Sethi published last week by the Christian Science Monitor.  Here are excerpts of a piece that merits a full read:

Necessity can spur novelty.  Even political novelty.  As the need for fiscal austerity grows, an unlikely alliance has emerged between policymakers and public advocates who have long sought criminal justice reform.  These policymakers are realizing what advocates have reiterated for years: The nation’s addiction to incarceration as a curb on crime must end. The evidence is staggering....

Prison overcrowding is ubiquitous and shows few signs of abating: Between 1970 and 2005, the nation’s inmate population grew by 700 percent.  Besides impeding access to health care, overcrowding also creates unsafe and unsanitary conditions, diverts prison resources away from education and social development, and forces low- and high-risk offenders to mingle, increasing the likelihood of recidivism....

The solution?

First, revamp habitual-offender laws, now in effect in more than 20 states, which regularly yield perverse sentences....

Second, implement misdemeanor reform by decriminalizing offenses such as feeding the homeless, dog-leash violations, and occupying multiple seats on the subway. Such reform is vital: between 1972 and 2006, misdemeanor prosecutions rose from 5 million to 10.5 million....

Third, limit the use of pre-trial detention....

Fourth, impose nonprison penalties on those arrested for technical parole and probation violations like missing a meeting or court appearance.  This would dramatically ameliorate overcrowding and excessive case loads given that over a third of all prison admissions are for such types of violations.  Texas is leading the charge here, and through such measures has significantly reduced its inmate population.

January 5, 2012 at 04:09 PM | Permalink


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The second suggestion actually made me laugh out loud. Whatever its other merits may be, the idea that dog leash laws, etc., have contributed to "prison overcrowding" is beyond preposterous. Do they even give nominal fines for that stuff anymore?

The third and fourth suggestions, by contrast, are merely misguided.

But not wanting to be wholly negative about things, I have a fifth suggestion: Those thinking about committing a crime reconsider and BEHAVE THEMSELVES. I know this suggestion has the big drawback of presuming that individual citizens, as opposed to The Big Bad System, might conceivably take some responsibility and contribute to a solution, but, hey, that's how things are here in Neanderthalville.

Posted by: Bill Otis | Jan 5, 2012 7:47:55 PM

There was an article in the Dec 17 2011 Wall Street Journal about the Federal Police Force that is now enforcing an ever increasing number of criminal laws. Government agencies are now the law enforcemet that write and enforce the law. It is now a criminal offense to violate any part of the law including the regulations. The Code of Federal Regulations now takes up 27 feet of shelf space.

Criminal cases investigated by regulatory agencies last year resulted in 10,122 convictions, this is in addition to the investigations and prosecutions. These are "crimes" for behavior that was not criminal years ago.

The EPA hired two criminal investigators in 1977. It now has 265. In all samller agencies there are 3812 criminal investigators. These Federal Agents and Investigators carry weapons and and frequently employ swat team tactics when they execute raids on the subject of investigation. In many instances the regulatory law is so obtuse that it cannot be interpreted in any definitive way.

Now this is just a little article about the Federal Code. This is compounded on the state and local level.

I do believe that this trajectory of criminalization has lead to disdain for the the law - those who make it and those who enforce it. That does not mean that citizens do not love their country. "Love my country - question it's government"

Posted by: beth | Jan 5, 2012 10:08:45 PM

beth --

I agree with you that federal regulation of every last thing has gone overboard. But, having had 18 years' experience in a large US Attorney's Office, I can tell you that if people behave honestly, rein in their greed, and stay clear of get-rich-quick schemes in whatever guise they may present themselves, their chances of running into trouble with federal criminal law are asymptotic to zero.

I do not recall participating in a single prosecution in which the defendant didn't know or have very good reason to know that his behavior was both wrong and illegal.

Posted by: Bill Otis | Jan 5, 2012 10:29:28 PM

Well, that's good to hear, but perhaps that is no longer the case. I think that there is a greater and greater divergence between wrong and illegal. Perhaps all laws should have a sun set provision. The constant cascading of legal code is depressing.

Posted by: beth | Jan 5, 2012 10:58:12 PM

The two most effective measures would be to rein in sentences for non-violent offenses and to decriminalize drugs, particularly marijuana. That alone would reduce the prison population substantially.

I also wonder what would happen to the prison population if we actually started giving the Fourth Amendment some meaning. If police could not get away with just making up a reason to pull people over, if judges would stop rubber stamping search warrant applications, if courts would be a little more skeptical about the idiotic claims of exigent circumstances to excuse warrantless searches--in other words, if our legal system actually respected the rights of individuals to be secure in their homes and property, the government would be deprived of many of the opportunities that police create to arrest people. If arrests go down, then prosecutions go down, and consequently the prison population goes down. It is unlikely to have a noticeable effect on violent offenses or property offenses, because the rampant use of Fourth Amendment run-arounds tends to favor contraband investigations more than other types of crimes. Perhaps it's a bit pie-in-the-sky to speculate about, but no more so than hoping people will just stop committing crimes.

Posted by: C.E. | Jan 5, 2012 11:43:21 PM

C.E. --

You say that arrests would go down, thus prosecutions would go down, hence the prison population would go down.

The one thing you don't claim, and understandably so, is that CRIME would go down. But some of us think the incidence of crime actually matters.

P.S. I'm glad to hear that forbidding searches (which is the real agenda here) would be "unlikely to have a noticeable effect on violent offenses or property offenses." Unfortunately, that is incorrect for two reasons. First, search warrants are common in both types of investigations; and second, the issuance of search warrants does not have anything to do with creating crime. Search warrants are sought AFTER the crime.

P.P.S. Do you favor the legalization of meth, LSD, heroin, cocaine and Ecstasy along with the legalization of dope? Some of them? All of them?

Posted by: Bill Otis | Jan 6, 2012 6:56:37 AM

...because he takes a general point that does have a relation to imprisonment (sentences for misdemeanors) and illustrates it with examples calculated to seem absurd but with no real relation to imprisonment (dog leash violations and subway seat citations).

There certainly are a substantial number of people in jail for misdemeanors. But most of those are for misdemeanor assaults, theft, and drug possession. Does the author believe that assaults and thefts should never result in incarceration, no matter how many offenses the defendant has? If so, then he should address those examples rather than the statistically negligible example of dog-leash violations.

Similarly, the author simultaneously argues for nonincarceration alternatives (presumably including probation), and says jail time should not be imposed for "technical violations.". Technical violation is a term of art including every sort of violation except conviction of a new crime -- so including absconding from supervision, missing drug tests, failure to appear in court, failure to seek employment, and so on. Now, I always thought that the whole point of probation (as well as parole and supervised release) was to give authorities enough supervision over offenders so they could confirm new crimes are not being committed and provide structured incentives for anti-crime lifestyle factors (such as legitimate employment, and lack of drug use) for those whose record shows they are not so good at making those choices without assistance -- all of which serves the laudable goal of allowing some offenders out of jail earlier than society could otherwise tolerate. But how can that happen if offenders know they can continue making bad choices (smoke oxo, lie around the house relying on mysterious non-work sources of income, etc) without consequences? The author has no answer, and refuses even to acknowledge the issue -- another sign of dishonesty.

Posted by: You can tell the writer is dishonest | Jan 6, 2012 11:38:44 AM

The second suggestion actually made me laugh out loud. Whatever its other merits may be, the idea that dog leash laws, etc., have contributed to "prison overcrowding" is beyond preposterous. Do they even give nominal fines for that stuff anymore?

Allowing a dog to run without a leash at night is a Class C Misdemeanor in North Carolina, punishable by up to 30 days in jail. NC St. 67-12. In Alabama having a dog in a "wildlife management area" without a leash is a misdemeanor. AL St. 9-11-306. The statute doesn't say what degree misdemeanor, but the lowest misdemeanor in Alabama is punishable by 3 months in jail. In Virginia municipalities can pass leash laws under VA Code Ann 3.1-796.95. Violating such a law is a Class 4 misdemeanor. Va. Code Ann. § 3.1-796.128, VA ST § 3.1-796.128. Not punishable by incarceration, but enough to give someone a criminal record.

That is what I found with a couple minute internet search. Do research next time Bill.

Posted by: Paul | Jan 6, 2012 1:22:29 PM

Paul --

You do the research, buddy -- the relevant research. The question is not whether they are PUNISHABLE by imprisonment, but whether they are PUNISHED by imprisonment, much less punished by imprisonment to the extent that any rational person could say that convictions under those statutes make any significant contribution to "prison overcrowding," which is what the author hilariously claimed.

Posted by: Bill Otis | Jan 6, 2012 1:34:54 PM

Anyone detained contributes to this problem. In most towns the police are the highest paid public employees and also because of strong unions have expensive benefits and retirement. It is important to start somewhere. Every government agency and every government employee believes that their department is not contributing to the budget deficit. We need a more objective eye in this evaluation.

Posted by: beth | Jan 6, 2012 1:51:34 PM

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