Let’s Rethink Law & Order—Completely

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As a Republic, we spend a large share of our resources on trying to catch and punish people who misbehave. At city, county, state, and national levels, we’ve evolved a haphazard conglomeration of “correctional” operations—courts, jails, holding facilities, juvenile detention centers, and prisons. No one seems to know what or how they correct.

Let’s Face the Facts & Figments

Recent to this writing, the total number of people behind bars in the US—the incarcerated population—stands at 2.3 million, or about 0.7 percent of the population. With 3.6 million offenders out on probation and 840,000 on parole, the “correctional population” numbers about 6.6 million, or about 2 percent.

The US, with 5 percent of the world’s population, now holds almost 25 percent of the world’s prisoners—the highest incarceration rate in the world. We lock up 5 to 10 times as many people as other modern democracies.

On any given day, about 750,000 people sit in local jails around the country and about 13 million pass through the jails in a typical year. By analogy to hotel rooms, a typical jail cell “turns over” about 17 times per year.

The largest jail in the US, operated by Los Angeles County, holds almost 18,000 people. Louisiana State Penitentiary, the largest maximum security prison in the country and known as the Alcatraz of the South, houses 5,000 inmates. It has a reputation for chronic violence and inmate abuse.

Something, it seems, has gone wrong. Either Americans misbehave more often and more seriously than their counterparts in other countries, or our criminal justice system doesn’t make sense. We seem to over-punish and over-incarcerate, compared to other modern societies.

“Three Strikes”: Did We Get Tough on Crime or Just Get Confused?

We haven’t always had the distinction of imprisoning more people than any other country. During the 60-year period from 1920 through 1980, our incarcerated population grew at just about the same rate as the general population, holding steady at about 0.25 percent, even as the overall population doubled.

Starting in about 1980, things went crazy. A combination of rising crime rates, populist trends at the political level, and changing ideologies among law enforcement and corrections officials, triggered an unprecedented tough-on-crime phase.

The American public had become increasingly concerned about drug abuse, particularly very dangerous drugs like crack cocaine. The “War on Drugs,” launched during the Reagan administration and publicized energetically by First Lady Nancy Reagan, promised to drive down drug abuse, addiction, and drug-related crimes. It didn’t.

The drug problem, plus demands by political figures for more severe penalties for all crimes; longer sentences; mandatory sentencing requirements; and the closure of public treatment facilities for the mentally ill caused a huge rise in the number of candidates for prison.

During the years from 1980 through 2016, as the US general population grew by about 40 percent, the prison population quadrupled. The “lock ‘em up” mentality took over in a big way. The American Psychological Association estimated that closing mental health treatment facilities pushed as many as 40,000 to 70,000 people with disorders into prisons instead of clinics.

California’s legislators raised the stakes even higher in 1994, with the state’s notorious “three strikes” sentencing law, aimed at keeping repeat-offending felons behind bars. The law required judges to sentence offenders with prior felony convictions—“one-strikers”—to a period of incarceration equal to twice the usual sentence. Two-strikers, with two previous felony convictions, faced a mandatory prison term of at least 25 years to life for a third-strike offense.

Over the next decade, about 30 other states and the federal government passed their own versions of three-strike laws.

By 2011, California’s three strikes law had created a capacity crisis in that state’s prisons. The legislature had continually refused to vote enough funds to build new prisons or expand existing ones, while the tide of new inmates kept on growing. The prisons became jammed, overcrowded to as much as twice their intended capacity. Reports began to hit the news: inmates living in filthy conditions, 3 or 4 to a cell; shortages of bunks; inadequate food; dangerously inadequate medical care; inmate violence; and abuse by staff.

Lawsuits against the state, charging intolerable and life-threatening conditions in the prisons, brought the issue to a crisis. A special three-judge federal court ordered the state to reduce its prison population substantially. The state appealed to the US Supreme Court and lost. Under the court order, corrections officials resorted to measures like freeing inmates approaching their release dates, increasing good-behavior time allowances, and shifting them to local jails.
After seeing the huge tide of inmates, the costs of the prison-building boom, rising operating costs, and catastrophic overcrowding, California voters passed a measure in 2012 that restricted the use of the 25-to-life sentence to cases involving very serious or violent felonies. Many other states, experiencing California’s same political drama—or knowing they soon would—began moving in the same direction. Federal and state courts now give judges more discretion, especially on the third strike option.

The Start of a Rethink

As of this writing, prison overcrowding remains a serious issue for at least half of the 50 states. As prison building becomes ever more expensive and less popular and the costs of incarcerating inmates continues to rise, more and more political leaders now question the logic of our penal system.

In particular, the three-strikes policy clogged the prisons with non-violent offenders, serving life sentences for crimes like drug possession or dealing, theft, or fraud. Some experts argue that the policy will accumulate a geriatric prison population for decades into the future with ever rising costs—particularly medical treatments—for elderly inmates. People who study those things estimate the annual cost of keeping a young, healthy, fit male in prison at about $30,000, while elderly prisoners can cost nearly twice that amount.

Further, they argue, older inmates present a much lower risk of violence or continued crime, whether incarcerated or not. Young males between the ages of 15 and 24 commit the vast majority of crimes. Males over 60 account for about one percent of all serious crimes.

Some experts advocate releasing well-behaved, non-violent inmates after age 60, arguing that they should bear the costs of their own retirement and medical care in their later years. That option might not sit well with Old Testament law-and-order advocates, but it does have a certain pragmatic appeal.

Sin, Suffer, and Repent: Why Do We Imprison People?

It might seem obvious, but it deserves saying: We’ve built our entire approach to law and order on the concept of vengeance. Society, we believe, has a natural right to retaliate—to exact revenge, to inflict suffering—on those who violate its norms.

Nowhere does this preoccupation with vengeance become more emotionalized, more stressful, more contentious—and more confusing—than when the question of capital punishment arises: the death penalty.

A broader question: if we imprison someone for a victimless crime such as evading taxes or setting a fire in a national park, how does society benefit from his or her suffering? What debt has he or she actually paid?

Let’s Substitute Restitution for Retribution

The principle of restitution, or restorative justice, makes a lot more sense for our concept of law and order but we typically haven’t given it more than occasional lip service. Let’s start by requiring all offenders to pay their debts back to the victim, either directly by court-ordered restitution, or more generally by having to provide their labor to a pool used to make victims whole to the greatest extent possible.

Can we trade in our outdated medieval preoccupation with vengeance—punishment, suffering, humiliation, and estrangement from society—for a more enlightened approach based on restitution, atonement, and re-integration?

We already have a good start on a national policy for restitution. All 50 states, plus the federal government, have victim compensation programs. The 1984 Victims of Crime Act created a national Office of Victim Services and set up a Crime Victims Fund. Special assessments imposed on offenders convicted of certain crimes go into this national pool, along with various specific fines and penalties, plus money from forfeited bail bonds. The operation redistributes billions of dollars back to the states to compensate victims for financial loss, property damage, medical expenses, loss of wages, pain and suffering.We can use restitution much more extensively by making it an essential part of every sentence, regardless of the offense.

Now, let’s take some of these unconventional ideas and build a system with them.

Let’s Redraw the Blueprint

We need an entirely new architecture for the Law and Order component of our Republic, based on four key principles:

  • Uniform national standards and practices.

  • Matching penalties to the offender.

  • Restitution.

  • Rehabilitation and re-entry into society.

In our new concept and system we’ll still need high-security incarceration facilities, but far fewer of them. By separating violent and dangerous offenders from non-violent ones, we can reduce the costs of incarceration. Most of our opportunities and our need for rethinking come with this strategy of separation.

We’ll still take away or restrict a non-violent offender’s right to move about freely, for three reasons:

  • To require a formal experience of penance associated with the offense and suited to the offender’s circumstances.

  • To put the offender into a developmental environment that can help him or her reform and return to society as a normal citizen.

  • To make use of his or her labor and productive energy to generate funds for victim compensation and restitution.

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