CRIME CONTROL EMERGED IN THE United States in an era of unprecedented turmoil and disorder. Historically high crime rates, massive and frequent race riots, and protests over the war in Vietnam provided much of the provocation for a profound shift in the U.S criminal justice system. That sea change in crime policy included the construction of the world’s largest prison system, extensive changes to criminal laws and sentencing statutes, and the redirection of extraordinary amounts of public funds. For nearly four decades, tough on crime has been the centerpiece of U.S. criminal justice policy and has played a prominent role in U.S. politics. It has been the one size that we have tried to fit all. It is based on a very simple premise that is embedded in the Protestant ethic and Judeo–Christian theology: punishment is the appropriate response to wrongdoing. The appeal of punishment is intuitive and understandable. Its political importance is clearly evident at all levels of government—few have lost elections by being tough on crime. It has been the rally for elected officials, policymakers, law enforcement, prosecutors, judges, and corrections officials. Tough on crime is how we have thought about crime and justice and how we have largely done the business of criminal justice. And punishment’s inability to effectively reduce crime and recidivism is undeniable.
At the outset, I stated that while this is in part a book about a policy failure of remarkable scale and scope, it is mainly an effort to forge a new path forward, a path informed by evidence, not intuition. The title of the book is intended to convey the opportunity that is currently available to engage real change. That opportunity is a product of three significant factors: (1) compelling scientific evidence indicating that punishment does not work and is a poor return on investment; (2) a wealth of scientific evidence demonstrating the effectiveness of a wide variety of interventions, programs, and policies that successfully change behavior, reduce recidivism and victimization, and save money; and (3) a nationwide recession that caused state, local, and federal elected officials and policymakers to pause and take a hard look at the cost of crime control and initiate discussion of alternatives. We find ourselves at a crossroads today, an opportunity to move in a direction of informed policy and practice, rather than basing how we deal with crime on instinct, anger, or gut feelings.
It is irresponsible to continue down the current path of crime control policies. It is irresponsible to put individuals and communities in jeopardy of avoidably being victimized. It is irresponsible in terms of offenders as it is a waste of human capital. And it is fiscally irresponsible. Twenty-five years ago, we could have legitimately pleaded ignorance because we did not have the scientific evidence available today regarding effective alternatives to punishment. In 2015, we have the tools to be smart on crime, save tremendous amounts of money (both in the short term and long term), and enhance public safety.
CHALLENGES GOING FORWARD
My personal experiences developing and evaluating justice programs, as well as observing, interacting and consulting with judges, prosecutors, court administrators, justice planning officials, law enforcement officials, prison and jail administrators, probation administrators and officers, and defense attorneys, has provided me with considerable insight regarding some of the more compelling barriers and challenges to implementing change. The obvious candidates are lack of innovation, vision, and leadership, failure to properly fund and resource a program or policy, failure to access appropriate research regarding program design, implementation and operation, lack of implementation and operational fidelity, failure to evaluate, and political and cultural barriers. I have discussed many of these more obvious difficulties in the preceding chapters. This section details some of my observations about these and other less obvious roadblocks or barriers to successful implementation and performance.
Nearly fifteen years ago, I attended a community-oriented policing conference sponsored by the office of Community Oriented Policing Services (COPS), a division of the U.S. Department of Justice. The conference hall was filled with about 500 to 600 mainly senior officials from local police departments from all over the United States. The conference began with the moderator asking two questions. First: How many of your departments practice community policing? Every hand in the room was raised. Second question: Who can tell us what community policing is? Three hands went up. I have seen versions of this play out in a variety of situations. Putting a label on a program or a practice is a far cry from actually doing it and doing it well. Simply stating that a department or agency uses some evidence-based practice is not the same as actually understanding what it is and implementing and operating it correctly throughout the organization.
Change is usually hard. It can be threatening, and often impacts roles and responsibilities and ruptures traditional balances of power within an organization. It can impact workloads and require a reorientation of priorities and resources in an agency. Change is typically top-down, originating with senior management, but the day-to-day implementation is up to middle management and line staff. Therein lies one of the more significant barriers to proper implementation and operation. If middle management and/or line staff do not understand and buy in to the relationship between some new initiative (for example, a more balanced accountability and behavior change model) and the goals of the agency (for example, recidivism reduction or public safety), the initiative is in jeopardy. If the dots are not connected, there will likely be pushback. Yes, staff can take direction, but the extent to which they actually embrace their roles and responsibilities depends on many things, including understanding the bigger picture, cultural barriers, personal biases, and so on. How well management actually sells an initiative (versus simply ordering it) is important.
Motivational interviewing (MI) is a relatively recent “go to” approach for encouraging or motivating individuals to engage in criminal justice programming. While probation administrators state that their officers are using MI on a routine basis, when I ask the officers about MI, many brush it off as the “flavor of the month” or state that they really have no idea what it is. Some roll their eyes and say, “it sounds like hug-a-thug to me.”
The point is that there is quite a divide between saying it is so and actually understanding and embracing a practice or innovation. Implementation on paper is different than implementation in the field. Probably one of the biggest barriers to effective, comprehensive, faithful implementation of a new innovation is the failure of the senior administration: to properly communicate the rationale and necessity for the policy; to properly motivate middle management and line staff; and to provide incentives for excellence. Simply ordering it is insufficient and is often a recipe for failure.
Even if the rationale for a new policy or a new initiative is explained well and makes sense, the goals are established, and the roles and responsibilities are clarified, there can be a reluctance on the part of line staff and middle management to engage in the change process. Part of this is just inertia against change. Change requires effort. Not everyone is willing to do what is necessary to fully and successfully implement the change. Some are just not motivated to engage in change at the level required to be successful. Yes, they can go through the motions when that is required, but that obviously is not the same.
One of the primary concerns of middle management and line staff is workload. New initiatives often add to current roles and responsibilities, which in turn adds to workload. This is a significant source of staff pushback. In addition to administrators realigning roles, responsibilities, and workload to the demands imposed by the new initiative, it may be useful to focus on the longer-term gain of reduced workload. If the initiative results in reduced recidivism, then workloads should decline over time.
One of the more common barriers to successful implementation and outcomes is the failure to hire the right people for the right positions. Often the scenario is one of simply not understanding the proper roles and responsibilities for a given position and/or trying to fit current staff into new or modified positions. Training clearly helps, but often a philosophical alignment is required, and along with it, the right attitude and the proper level of motivation. I have seen this in all levels of program staffing, from the line staff going through the motions, to administrators and judges just not getting it. I have seen more than one problem-solving court judge who did not understand and did not embrace the principles of the court or the principles of therapeutic jurisprudence. Research and common sense tell us that the role of the judge in problem-solving courts is fundamental to success. If the judge just doesn’t get it, the mission is clearly jeopardized.
Then there is turf control. Innovation requires collaboration with others within an agency as well as across agencies and organizations. Turf control can play out in a variety of ways within organizations. Individuals may try to preserve their influence or authority in a variety of unproductive ways, like being excessively “nitpicky” or obstructing or stonewalling others.
I have often seen turf control like this play out in terms of lack of information sharing. A good example of this was the repeated refusal of the administrator of a problem-solving court to provide the advisory board with basic statistical information regarding the operation of the court. The administrator’s excuse was that everybody at the court was too busy to provide the information. The backstory was that the court was not functioning properly, and the administrator knew it and did not want that to get out.
Failure to evaluate processes and outcomes leaves administrators in the dark about what is really happening day to day (Are goals being accomplished? What needs to be modified or changed?). Evaluation is typically tied to federal program funding, but is much more problematic in other settings. Even where process and outcome evaluations are conducted, it is not necessarily the case that program managers will use the information to improve those processes and outcomes. Knowing the value of evaluation, properly implementing it (proper design and data collection, use of qualified, experienced external evaluators), and knowing how to use the results and actually implementing corrective actions where necessary are critical to program effectiveness and cost-efficiency. During my years conducting program evaluations, I have often encountered the concern that individuals think I am evaluating them. That can create a situation in which, for example, the individuals being interviewed are not as forthcoming as is necessary for a productive evaluation. I have found that can be mitigated by clarifying the purpose of the evaluation and assuring confidentiality.
Early adopters of innovation can be at a disadvantage because evaluation research is generally more limited. The early drug courts were launched well before we knew much about effectiveness, process efficiencies, and implementation barriers and strategies. In 2015, after some twenty-five years of research, we are in a position to design and implement the most effective drug court model, not to mention many other types of programs and processes. Thus, the situation today is considerably different in terms of the nuts and bolts of behavioral change processes and programming. Those engaged in program development have many well-tested principles, evidence-based practices, and prototypes from which to model new programs.
However, the thousands of existing programs that were developed over the years require not only evaluation, but may also significantly benefit from some renovation or refinement. Aligning current programming with the current evidence base is required if the goal is maximum impact and cost-effectiveness. Once again, we are back to a familiar point: just having a program is not the same as maximizing the impact and minimizing the cost. This is an ongoing process and it seems too often that we settle for less than need be.
EVIDENCE-DRIVEN POLICYMAKING
There is another significant challenge in addition to lack of funding, innovation, leadership, fidelity, cultural barriers, and the more subtle impediments discussed previously. It is the current status of the policy-making process and the divide between producers and consumers of knowledge.
The basis for the recommendations made in this book is the availability of valid, actionable, scientific research, evidence that demonstrates the viability and effectiveness of a variety of policies, procedures, principles, and strategies for effectively and cost-efficiently reducing crime and recidivism. The current evidence base is the starting point. Much more research is required to further clarify, elaborate, modify, expand, and qualify what we currently know, and to explore new strategies and innovations. Obtaining that research can be challenging.
There are a variety of research institutions, both private and public, that have played a critical role in generating the evidence base. These include the Washington State Public Policy Institute, the RAND Corporation, the Urban Institute, the Justice Center at the Council on State Governments, the Center for Court Innovation, the Vera Institute, and the Pew Center on the States, among others. What these organizations produce has played a fundamental role in advancing scientific knowledge about crime and justice. But much social science research comes from research universities. Part of the challenge lies in the culture and reward structures of those institutions. Applied or policy research is not nearly as valued in university settings as is basic research, which is often published in relatively obscure journals that are intended for other academics, not practitioners and policymakers. Academic research is written for other academics in a language and format that is not often accessible to policymakers and practitioners. Time is not as valued in university environments, thus the production of knowledge is not often driven by the need for timely answers. The questions that much academic research addresses are generally not driven by broader policy interests or needs, but by the interests of the individual or what will advance their academic careers. Borgenschneider and Corbett (2010), in their influential book Evidence-Based Policymaking, make the points quite well (2010: 13):
The very institutions through which knowledge is generated and power is exercised often operate in ways that are counterproductive to evidence-based policymaking. … Those who operate within the academic community know what they have to do in order to thrive and advance. They must cater to their peers who more or less do basic research within narrow specializations. Working too closely with the real world bears considerable professional risk.
Borgenschneider and Corbett’s research included determining what makes research useful to policymakers. The characteristics of useful research include that it is actionable, definitive, generalizable, objective, relevant, timely, of high quality, and presented in an accessible, understandable manner. Unfortunately, much of the social science research on crime and justice does not conform to many of these criteria.
Working with policymakers and practitioners requires at a minimum understanding the context and environment in which policy decisions are made; the needs, interests, and constraints imposed on policymakers and practitioners; knowing how to communicate with policymakers and practitioners; and being aware of and sensitive to the requirements for translating research evidence into policy and practice. Academic researchers doing basic research do not typically cross these boundaries. Borgenschneider and Corbett conclude that movement in that direction, where academics and policymakers come to better understand and collaborate with each other, can be facilitated by understanding and changing the culture in which much scientific research is produced.
But it doesn’t end with researchers providing the evidence. Instead, the collaboration should extend to design and implementation. Helping policymakers and practitioners translate research results into program and policy components is just as important as providing answers regarding what works and what doesn’t.
A CAVEAT REGARDING RESEARCH EVIDENCE
On balance, the evidence is clear that alternatives to crime control’s punitive policies are more effective. However, it is important to note that the quality of the scientific research evidence varies.
While meta-analyses of evidence-based practices and programs typically screen for reliability and validity of the research, there is variation in the quality of the evidence. Some of the evidence is relatively extensive and strong (for example, drug courts), but many other practices and programs have not received the same level of scientifically valid evaluation (for example, problem-solving prosecution). That reality requires that we adjust our expectations regarding how well particular practices and programs may work. Indeed, even in the presence of the most compelling research evidence, variation in performance is inevitable.
A good example is recent evidence provided by Wright, Sheldon, and Zhang (2012) regarding institutionally blessed evidence-based practices for substance abuse and correctional interventions. Wright et al. conducted an extensive review of the research in the National Registry of Evidence-Based Programs and Practices (NREPP), which is managed by the Substance Abuse and Mental Health Services Administration (SAMHSA). Among the concerns regarding the scientific validity and reliability of the research are the use of small samples, evaluations conducted by the program developers, and a general lack of independent verification of the reported treatment effects. SAMHSA is a quite credible agency. The fact that SAMHSA at least implicitly blesses the programs and practices that are on the NREPP is potentially troubling. As Wright, Sheldon, and Zhang (2012: 955) conclude: “If the NREPP is to fulfill its intended function, a tighter vetting process is needed for programs to be registered so that community agencies and treatment practitioners can consult with confidence.”
It is important to note that we need not wait until a program or practice has been examined and vetted to the extent that drug courts have been before we can move forward. Instead, as jurisdictions implement practices, programs, and policies, evaluation research shall continue to accumulate. This is an ongoing process—as we learn more, we can then adjust our implementation and operational strategies and our expectations as we move forward.
BALANCE, BALANCE, BALANCE
Crime control took justice policy and justice funding dramatically out of balance. Much of what the proposed path forward involves is getting crime policy to the middle, where there is a more effective mix of incarceration/control for those who need it and diversion and intervention for the rest.
The research is pretty clear: prison does not effectively reduce recidivism, and in fact, there is mounting evidence that prison is criminogenic, serving to actually increase recidivism (Cullen, Jonson, and Nagin 2011). Thus, the guidance on prison use going forward is to limit incarceration to individuals for whom we have neither the expectation nor the desire to rehabilitate. Instead, the primary purpose of prisons should be incapacitation, either because of the inherent dangerousness of an individual, the characteristics of the particular crime they committed (for example, the level of violence used), and/or a clinical decision that a particular offender cannot be rehabilitated.
There are three aspects of incarceration to consider here: the number of admissions to prison (sentences of incarceration), the length of the sentence imposed, and time served. Because incarceration does not reduce recidivism, a sentence of incarceration should not be imposed lightly. The longer-term consequences should be a significant element in the decision. If incarceration is determined to be the appropriate sentence, it should be clear that the only likely public safety benefit will be incapacitation, and that the effect is small and the broader impact on public safety is clouded by the replacement or substitution effect.
Research indicates the effectiveness of drug diversion. Ramping up drug court capacity to anywhere near the need (estimated at 1.5 million) will result in significant increases in diversion from incarceration. An increase in drug offender diversion of 30 percent (what seems like a fairly conservative number) will reduce drug admissions to prison by over 56,000 per year (all else equal). This estimate is based on total drug offense admissions to prison of 187,200 in 2011 and a number of assumptions, but reflects the likely potential such a policy has.
In 2012, the U.S. Department of Justice reported that the total number of prisoners in state and federal prisons totaled 1,571,013. The state share of that total was 1,353,198. There were 609,800 new admissions to U.S. prisons that year. Twenty-five percent (152,700) of these admissions were parole violators. Felony probation revocations accounted for another 180,000. Over 50 percent of all prison admissions in 2012 were for violations of community supervision.
One very effective way to control prison populations and reduce recidivism is to employ graduated or intermediate sanctions that rely on swift and certain consequences for violations of conditions of supervision and engage behavioral change interventions. The logic is pretty simple. For example, if a parolee or probationer violates the prohibition against drug use, placement in a drug treatment program for those with a clinically determined substance abuse disorder rather than revocation can be an appropriate, effective, cost-saving strategy. For others, a swiftly imposed, brief jail sentence may be all that is necessary for compliance. The next violation may lead to a longer sentence. The point is that typical cases should work through a series of graduated sanctions and interventions, and not just automatically send a problem case to prison. Revocation is a failure of everyone involved and should be a last resort, unless it is clear someone is a significant public safety risk and revocation is the only option. The response to a violation should involve changing behavior, not typically just punishment, tighter supervision or imposing additional condition of supervision. Tighter control may be appropriate, but that alone may not be sufficient to change behavior or enhance compliance. Assuming that is all that is needed is naïve and counter to what the research clearly tells us.
Research indicates that implementation of evidence-based practices and graduated sanctions, often in the form of Justice Reinvestment Initiatives, can significantly reduce probation and parole revocation rates, and in turn reduce prison admissions. The impacts understandably vary depending on what practices states have implemented, how well they have implemented them, and how many individuals are affected. For example, the Travis County (Austin) Texas Adult Probation department reports a 20 percent decline in probation revocations due to the implementation of evidence-based practices and intermediate sanctions. The HOPE Court in Hawaii reports a 50 percent reduction in revocations as a result of swift and certain sanctioning. In Arkansas, probation revocations declined by 15 percent under their Justice Reinvestment Initiative. If we use a percentage reduction between the Arkansas and Travis County numbers and the HOPE Court estimate, say 30 percent, that amounts to a reduction of 60,000 prison admission each year. Assuming an average annual incarceration cost of $25,500 per inmate, this reduction in probation revocations saves $1.53 billion annually just in avoided incarceration costs (it does not reflect all of the other costs avoided due to reductions in recidivism). These estimates are very rough, but may be in the ballpark of reasonable expectation.
Similar initiatives involving the implementation of best practices for parole supervision have had substantial effects in reducing revocation rates. Again, the impacts vary significantly by state: Texas has reduced parole revocation by 25 percent; Michigan has reduced revocation rates by 38 percent; Missouri by 21 percent; and Arkansas by 30 percent. Using a conservative estimate of a 30 percent reduction in parole revocation translates into 61,700 avoided prison admissions. The cost savings amount to $1.573 billion annually just in avoided incarceration costs. A performance incentive funding model would then redirect a portion of the cost savings to enhance community supervision. It is clear that community supervision of the kind envisioned here is expensive. The levels of effort and expertise involved in transitioning community supervision to where the research indicates it needs to be will require appropriate funding.
The Pew Center on the States complied time served data from the states and reported that between 1990 and 2009, length of sentence served increased by 36 percent. This is largely due to mandatory sentences and truth in sentencing laws. This 36 percent increase in time served translates into an additional nine months in prison on average per offender at an annual cost of $10 billion (Pew Center on the States 2012). The distribution of increases in time served was similar across types of crime: time served for drug crimes increased by 36 percent; for property crimes, it increased by 24 percent; and for violent crimes, 37 percent. There are a number of challenges in assessing the crime impact of reduced time served. However, recent, more sophisticated approaches have begun to unravel the consequences of reduced time served and have found that based on the use of valid risk assessments, it is possible to identify individuals who can be released sooner without significant public safety consequences (Pew Center on the States 2012). The Pew research indicates that between 14 percent and 24 percent of release cohorts of nonviolent offenders in Florida, Maryland, and Michigan could have been safely released significantly sooner, and saved $176 million annually. Mississippi recently relaxed its tough truth in sentencing law for nonviolent offenders, allowing parole consideration after serving just 25 percent of the sentence. This policy, based on the use of validated risk assessments for decision making, led to remarkably low recidivism, significantly reduced the prison population, and saved the state $200 million (Clear and Schrantz 2011). There are valid tools and strategies available to implement an informed process for reducing time served for selected inmates without significantly compromising public safety.
A number of states are beginning to address the time served issue with changes to laws and policies. These include: raising the threshold dollar amount on certain property crimes so that more low-level property crimes are no longer classified as felonies; rolling back mandatory minimum sentences; revising drug offense classifications so that the punishment is more proportional to the seriousness of the crimes; and changing eligibility laws for parole consideration. Moreover, states must reduce the use of unconditional release from prison, known as discharge. In 2011, 29 percent (203,000) of all inmates released were unconditional releases (discharged). The reason for an unconditional release is the full discharge of the sentence, meaning the inmate served the entire sentence, which means that there is no legal way to supervise that individual after release. There are obvious concerns with inmates released this way, such as no opportunity for risk management and no assistance in easing the transition into the free world. While requiring inmates to serve the full term imposed may sound tough on crime, it ironically can be a significant threat to public safety.
As diversion from incarceration increases, as community-based programming uses evidence-based practices, the principles of effective correctional intervention, and the other considerations I discussed in these pages, and as the justice system shifts from control and punishment to a more balanced approach of incapacitation and evidence-based behavioral change, recidivism will decline. In a perfect world, recidivism could decline 30 percent. In a realistic world, it is maybe closer to 20 to 25 percent. In either case, the impact on incarceration will be remarkable and cumulative. There were 455,000 admissions to prisons in 2011 that were new court commitments (not parole revocations). How many of those admissions could be avoided due to appropriate, effective interventions? Assume that 70 percent of those admitted to prison had at least one prior conviction, thus subject to, by definition, recidivism reduction through correctional intervention. If we can reduce recidivism by a minimal 20 percent, that translates into nearly 64,000 avoided incarcerations each year. This is just a quick and dirty estimate, but it gives us some picture of what can be accomplished through implementing what research indicates are smart, effective, and fiscally prudent policies.
What can we expect in terms of public safety consequences of downsizing prison populations? First, viewing the totality of the evidence indicates that the incapacitation effect of incarceration is limited and the link between the size of the prison population and public safety is rather weak (Clear and Schrantz 2011). Moreover, incarceration primarily affects the timing of reoffending rather than the overall volume—those who are going to recidivate simply do it sooner if they are released from prison sooner. This in turn indicates that a reduction in the current prison population by accelerated release could result in a short-term increase in crime, and once the prison population stabilizes at a new level, crime will fluctuate independently of the size of the prison population. With the extent to which we are able to address the weaknesses in parole supervision, that short-term increase in crime could be reduced.
The five strategies of (1) reducing and/or eliminating mandatory sentences and mandatory minimums; (2) revision or elimination of truth in sentencing laws; (3) increased diversion of selected drug offenders to treatment, and diversion of property offenders and some low-level violent offenders to indicated and appropriate interventions; (4) reductions in revocations of probationers and parolees through the use of effective evidence-based interventions; and (5) recidivism reductions due to the general implementation of research-based practices, can dramatically assist in reducing the prison populations. In turn, this can result in reducing spending on incarceration, providing performance incentive funding for more effective diversion, treatment, and rehabilitation, avoiding unnecessary criminal victimizations, saving untold social costs associated with crime, and increasing the productivity of once-written-off criminal offenders. As Clear and Schrantz (2011) convincingly argue, no single strategy will significantly reduce prison populations. Instead, taken together, enhancing treatment resources (especially in community settings), accelerating parole releases, substantially upgrading probation and diversion programs, strengthening community-based incentives, changing sentencing laws (especially diverting low-level drug offenders and nonviolent offenders from incarceration), and aggressively focusing on recidivism reduction through evidence-based practices can have substantial, sustainable reductions of prison populations without significant, longer-term increases in crime. The evidence in support of this conclusion is found in the experiences of New York, Michigan, and New Jersey in implementing in limited ways all of these initiatives, with notable reductions in prison populations.
Three major private corrections corporations, GEO (formerly Wackenhut), Corrections Corporation of America, and Management and Training Corp., provide prison management and operations in a number of states. The advocacy group In The Public Interest discovered through an open records request that over two-thirds of the contracts that these companies have with states require quotas of inmates in the institutions they operate. Most of the quota stipulations require that the facilities are at least 90 percent full (In The Public Interest 2013). If the quotas are not met, the state still has to pay the operators for the quota amount. These arrangements make sense from the perspective of the vendor, but are a substantial incentive for states to keep prison beds filled. Clearly, this arrangement is inappropriate, as it significantly limits the ability of states with these contracts to implement strategies that lead to reductions in prison populations. Such contracts should be nullified.
Downsizing prisons clearly requires a very serious effort at reforming diversion and community-based supervision. Probation must become effectively balanced with appropriate provision for surveillance, accountability, and control on the one hand and very concerted, evidence-based behavioral change interventions on the other. In addition, compliance and accountability of offenders in community-based diversion and supervision programs may be enhanced by a swift and certain sanction component, in the form of a HOPE Court model.
As reliance on incarceration is reduced and larger numbers of individuals are diverted to community-based programming, funding for probation and other forms of diversion should shift to a performance incentive model, redirecting resources from incarceration to community-based corrections. That redirection of funds should be dictated by successful recidivism reduction efforts at local probation agencies and diversion programs. The point is to reward success and to incentivize others to improve in terms of recidivism and other outcome metrics.
It is reasonable to expect that the impacts of these initiatives will increase over time. As more and more jurisdictions get on board, as we get better at implementation, as research continues to inform policy and practice, as programs are scaled up to appropriate levels, the public safety and cost benefits should increase significantly over what is indicated here. It is also reasonable to expect cumulative effects over time as these research-based practices are implemented, adapted, added to, evaluated, improved, and expanded. As policy and program development and implementation remain faithful to the evidence-based models, there is good reason to expect substantial, longer-term cumulative benefits, both in terms of reduced crime and recidivism, as well as lower criminal justice costs and lower social costs.
Once the prison population is reduced to acceptable levels and is composed of primarily violent offenders, chronic, habitual offenders and offenders for whom there has been an informed finding that rehabilitation will not work, sentence lengths and time served should reflect the largely incapacitation function incarceration will play. But we also need to assure that incapacitated inmates are not kept beyond the point of minimal risk.
CRIME IS LOCAL
While laws, policies, procedures, and significant amounts of justice funding originate at the state level, crime occurs in communities and in neighborhoods. Much of the response to crime is local as well: law enforcement, jails, prosecutors, the defense bar, the courts, probation, and other diversion programming. At the end of the day, the solutions to crime, recidivism, and victimization are local as well. What we do and how well we do it has less to do with state legislatures and governors and much more to do with local efforts and initiatives.
Counties in the United States serve as the primary venue or geography for arrest, prosecution, sentencing, and much of corrections. There are 3,143 counties or county equivalents in the United States, and while they are subject to the same laws and due process considerations, each has its own problems and priorities, policies and procedures, leadership, culture, politics, beliefs and attitudes, demographics, economies, and funding capacities. Thus, there is plenty of room for variation in how these local governments and communities respond to crime. Counties differ in terms of innovation, resources, abilities, and capacities for implementing diversion and rehabilitative programs, and thus variation in whether and how well various types of justice initiatives are developed, implemented, operated, and funded. In turn, there is significant variation in the outcomes of the local administration of criminal justice. Thus, there will be local successes and local failures as we proceed down this new path.
The point is that while state governments exercise a great amount of influence over local justice administration, we must be able to achieve a balance between state policy development, regulation, and funding on the one hand, and local autonomy on the other. It has been my experience in working with state and local governments in developing policies and programs that there is often a loss of innovation, fidelity, and quality when policies are developed at the state level of government and then dictated to local jurisdictions. Such processes result in policies that are too standardized, too rigidly regulated, and too generic. It often becomes one size fits all, without allowance for local differences, local constraints, and local needs. This is not to say that innovation is reserved for local communities to the exclusion of state or federal government. Instead, when policies, innovations, or programs originate at the state or federal level, there needs to be an appreciation for the need for flexibility, adaption, and tailoring to the circumstances of local jurisdictions.
State regulation and funding should facilitate local implementation, modification, and innovation, while requiring local adherence to standards of fidelity, quality, capacity, and outcomes. There needs to be a priority set for evaluation (both process and outcome evaluations), cost-benefit analysis, and the deliberate and routine use of the evaluation results for identifying what is working, what is not, and how to change and improve.
BIPARTISAN REFORM EFFORTS
In the 1980s, Democrats and Republicans alike embraced sentencing reform, the movement away from indeterminate sentencing to determinate sentencing. While both sides of the political aisle agreed on the remedy of sentencing reform, they did so for different reasons. Once again, criminal justice makes strange bedfellows. In 2014, we may be able to edge closer to bipartisan alignment on criminal justice policy under a similar scenario. Right on Crime is a conservative justice policy organization with signatories that include Jeb Bush, Newt Gingrich, Grover Norquist, Edwin Meese, William Bennett, Asa Hutchinson, David Keene, Erick Erickson, and Ralph Reed, among many others. Their Conservative Case for Reform: Fighting Crime, Prioritizing Victims, and Protecting Taxpayers has identified a multifocused set of recommendations for criminal justice policy reform aimed at reducing recidivism:
Reducing recidivism should be a central focus of conservative efforts to reform criminal justice. Conservatives understand that reforming offenders is both a moral imperative and a requirement for public safety. Breaking the cycle of crime and turning lawbreakers into law-abiding citizens is a conservative priority because it advances public safety, the rule of law, and minimizes the number of future victims.
Key elements to Right on Crime’s proposal include utilization of evidence-based practices, eliminating many mandatory minimum sentences for nonviolent offenders, expanding custodial supervision such as probation and parole for nonviolent offenders, providing substance abuse and mental health treatment for those in need, expanding geriatric release of inmates, and using validated risk assessment instruments to determine who should be released. Parole supervision can be enhanced by the use of GPS for parolees, technology to monitor alcohol use, intermediate sanctions for parole violators (to reduce revocation to prison), and the elimination of civil liability for employers who hire ex-offenders. Right on Crime also calls for the expansion of diversion courts, the expansion of swift and certain sanctioning under a HOPE Court model, drug and mental health treatment for offenders on probation, the use of evidence-based risk assessment for decision making regarding who should be sentenced to probation, and implementation of performance-based funding for probation. While Right on Crime’s goals include the reduction of crime, recidivism, and victimization, a primary motive appears to be the excessive cost of the justice system. They have changed the rhetoric a bit by saying that “conservatives are known for being tough on crime, but we must also be tough on criminal justice spending.”
On September 18, 2013, Senator Rand Paul, a Tea Party Republican, publically decried the differential impact of mandatory drug laws on minorities. In a public hearing before the Senate Judiciary Committee, Paul criticized mandatory minimum drug laws, and Paul and Patrick Leahy, the democratic chair of the Senate Judiciary Committee, co-authored the Justice Safety Valve Act of 2013, which allows judges in federal sentencing to selectively override mandatory minimum sentences. The Obama administration, through Attorney General Eric Holder, has announced their intention to revise lengthy mandatory sentences for federal drug defendants. In early March of 2014, U.S. Attorney General Eric Holder and conservative Republican (and libertarian) Rand Paul agreed to work together to reduce mandatory minimum sentences for nonviolent federal drug offenders. This is a component of the Attorney General’s Smart on Crime initiative that was launched in August of 2013. This is important momentum at the federal level in terms of initiating changes to longstanding sentencing policies.
The result of conservative calls for justice reform is an opportunity to join forces with liberal reformers to develop and implement strategies that recalibrate the U.S. justice system to a more balanced portfolio of incarceration and control for serious, violent offenders, and accountability and behavioral change through intervention for lower-risk, generally nonviolent offenders.
Cost is also a concern for liberals, as is implementing effective policies and practices that reduce recidivism, crime, and victimization. The American Civil Liberties Union, a noted liberal organization, has advocated for criminal justice reform consistently over the years. The ACLU’s recommendations for reform are similar to those of other liberal organizations such as the Open Society Institute, Americans for Progress, and the Sentencing Project. Recommendations include eliminating mandatory and mandatory minimum sentences, reducing penalties for drug offenses, decriminalizing drug possession, and use of nonprison sanctions for violations of probation and parole conditions.
Increasingly there are examples of bipartisan efforts to develop and implement limited criminal justice reforms. Georgia instituted a bipartisan commission to pass justice reform and save the state money. In 2012, the governor of Georgia signed legislation that reduces penalties for drug law violations, expands drug courts, expands the use of accountability (swift and certain sanctions) courts, and provides for alternatives to incarceration for nonviolent offenders. Other states are beginning to implement limited justice reform under bipartisan support. The ACLU profiled states’ bipartisan initiatives in the report Promising Beginnings: Bipartisan Criminal Justice Reform in Key States. Their analysis included Alabama, Connecticut, Indiana, Kansas, Louisiana, Mississippi, Nebraska, Ohio, South Carolina, Texas, Vermont, and Virginia. While cost was the primary motivator for the initiation of discussions about reform, the preliminary results appear to be smart policies that reduce prison populations and generally focus on diversion from incarceration, enhanced drug and mental health treatment, policies that increase parole releases, and graduated sanctions for parole and probation violations in lieu of incarceration (ACLU 2012). Michigan and New York have also implemented reforms that have significantly reduced their prison populations. New York’s bipartisan efforts reduced its prison population by 20 percent by changes to the Rockefeller drug laws, expansion of alternatives to incarceration, enhancements to treatment and drug courts, and policies to expedite parole release. Michigan’s bipartisan efforts resulted in a 12 percent reduction of its prison population by eliminating most of its mandatory minimum drug sentences and developing policies and programs such as housing, employment, and treatment to enhance successful reentry from prison.
At the same time, it is important to note that a recent survey (November 2014) of state prison officials reveals projections of increases in state prison populations at least over the next four years. The survey by the Pew Charitable Trusts indicates an average 3 percent increase in the number of prisoners by 2018.
A CULTURAL CHANGE
Crime control has permeated the culture of U.S. criminal justice. It has been the central focus of how we think about crime. It is time to turn that around. It is time for a fundamental change in the culture of crime and justice.
While we may place blame on someone who smoked for forty years and developed lung cancer, would we at the same time deny them health care for treating their cancer? How about someone who is obese and develops heart problems or diabetes? We may think that they are responsible for their situation, but it is doubtful that we would have a policy that would deny them medical care. It seems that we need to try to get to the same place with many criminal offenders—they make bad choices, they do bad things. There are real victims who have suffered real loss. These offenders are, for the most part, blameworthy and culpable for their crimes. At the same time, there likely are a variety of criminogenic deficits, impairments, and problems that are related to their offending. We should not look at these problems and impairment as a means to mitigate culpability. These should be seen not as excuses, but as opportunities for intervention or targets for behavioral change. It makes little sense sitting where we sit today to take the hard line and blame offenders en masse for their crimes and deny them all but punishment. That is counterproductive and it compromises public safety.
So we need to take the emotion out of the calculus. We need to curb our strong need to blame others and to seek wholesale revenge. We need to think differently about the problem of crime and its solutions. We need to take a more pragmatic view, a public health view, of much of the crime we have treated in the past as simply bad behavior in need of punishment. The goal here is not to be soft on crime. In many ways, behavioral change is harder than doing a stretch upstate or being placed on probation. Many offenders are changeable. We have effective tools for changing behavior. We need to appreciate that we benefit when we are able to change an offender’s behavior. We win in terms of fewer victimizations, lower recidivism, lower crime, more effective use of resources, and lower criminal justice costs both in the short term and in the long term.
We need to get beyond symbolism. Diversion and rehabilitation should not be window dressing. They should be the primary business of corrections. Diversion courts are a great idea. The evidence indicates that they effectively address the problems for which they are designed. However, having the capacity for just 5 percent of the need is more symbolism than substance. Effective programming designed to enhance success on community supervision should be the rule, not the add on that it seems to be in many jurisdictions. Where we go from here cannot be piecemeal. It is not just fine-tuning. It is a reengineering of the justice system, a reengineering of how prosecutors see their roles and responsibilities, how judges make key sentencing decisions, how corrections agents view the goals of that enterprise and how to achieve them, and how legislatures and local governments shape the priorities, procedures, statutes, and funding that make a wholesale revamping possible. That reengineering also needs to change the justice system from a series of handoffs (police to prosecutors, prosecutors to judges, judges to corrections). It will require everyone involved in the administration of criminal justice to accept responsibility for recidivism, not pass that responsibility down the line. It will require digging deep, avoiding just going through the motions, and engaging a real commitment to change.
The Center for Court Innovation conducted a survey in 2013 of the perceptions of innovation in the criminal justice system (Labriola, Gold, and Kohn 2013). The survey included court administrators, community corrections officials, law enforcement administrators, and prosecutors. Taken together, only about one-third of the respondents believe that the field of criminal justice can be described as innovative. Just over one-half believe that their agency is innovative. Moving toward true innovation and change will require the right individuals at the federal, state, and especially the local level to provide strong, dynamic, innovative leadership. It will also require thoughtful, innovative, courageous legislators, governors, and city and county elected officials and policymakers who “get it” and can be less concerned with the politics of justice policy and more concerned with moving the justice system to where it needs to be in order to accomplish public safety, reduce recidivism and victimization, and do so cost-effectively.