THIS IS A BOOK ABOUT a remarkable policy failure, perhaps the greatest in American history. Over the past forty-plus years, elected officials and policymakers throughout the United States have failed the public, taxpayers, crime victims, the criminal justice system, the mentally ill, the drug-addicted, criminal offenders, their families, and their communities. They have also compromised public safety and contributed to millions of preventable criminal victimizations. It is a failure that has resulted in state expenditures on corrections of over a trillion dollars since 1980. That failure is called “crime control,” a theory of public safety premised on greater severity of punishment for criminal offenders and defined by tough rhetoric like “lock ’em up and throw away the key” and “do the crime, do the time.” It is a policy that has resulted in the United States having the highest incarceration rates in the world. It is a policy that has led to over 7 million individuals under correctional control, a number larger than the combined populations of Los Angeles and Chicago.
It is a failure that was prosecuted by the careful leveraging of fear (e.g., the Willie Horton TV ads of the 1988 presidential campaign that artfully combined violence, race, and partisan politics) by political self-interest and by an apparent disregard for what the evidence suggested in regard to the effectiveness of the primary policies and initiatives in place to address public safety. This failure has been compounded by neglect of basic public institutions such as education, the mental health system, healthcare, and social problems such as drug and alcohol abuse, poverty, unemployment, homelessness, and community disorganization, among others. The consequences of this neglect are higher crime and victimization rates, which in turn place more offenders in a revolving-door criminal justice system. To be clear, criminal offenders make serious mistakes. They engage in crimes that cause harm—sometimes devastating harm. The failure of the justice system and other public institutions is not excusing crime and criminal offending. What is necessary is to recognize and appreciate that there is shared responsibility for crime. It is time that the United States as a civil society accepts that failure and that shared responsibility—and moves forward to correct it.
So this is also a book about opportunity. Rather than just focusing on the negative, I will discuss a viable, evidence-based, cost-efficient path forward. The research indicates that not only are the alternatives proposed herein more effective (unlike punishment, they actually can change behavior), they are also considerably less expensive.
The scientific community has, over the past twenty-five years or so, accumulated substantial knowledge regarding the criminogenic circumstances of criminal offenders. A considerable amount is known about what situations, conditions, impairments, and deficits are related to criminal offenders and recidivism. Substance abuse, poverty, compromised mental health, cognitive and intellectual deficits, neurodevelopmental impairments, trauma, poor education, lack of employable skills, and many other factors comprise the list of dynamic (changeable) criminogenic factors.
Today, more than 20 percent of America’s children grow up in poverty. The United States is thirty-fourth out of thirty-five developed nations in relative child poverty (UNICEF). The United States ranks above only Romania and is well below all of Europe, Canada, Australia, New Zealand, and Japan. The Annie E. Casey Foundation compiles data on child well-being on a variety of dimensions. The 2013 Data Book: State Trends in Child Well-Being ranks states on dozens of measures of child welfare. The bottom ten states are New Mexico, Mississippi, Nevada, Arizona, Louisiana, South Carolina, Alabama, Georgia, Texas, and California. Of those ten, eight have incarceration rates above the average incarceration for all states combined. Put differently, of the twenty states with incarceration rates above the national average, all but four are below the median ranking on child welfare. Eleven of the states with above-average incarceration rates are in the lower one-third in terms of child welfare. This is neither scientific nor dispositive; it is suggestive of a relation between the use of incarceration and how well the United States cares for its disadvantaged.
The science is rapidly accumulating regarding the effects of poverty or low socioeconomic status on neurocognitive functioning. Children who grow up in impoverished environments tend to have greater exposure to environmental toxins, experience greater chronic stress, have detrimental exposure to inferior cognitive skills, and experience and observe impaired social and emotional relationships. As a consequence, children who grow up in these environments have significantly poorer brain development and more impaired cognitive development than children who grow up in non-poor environments. The consequences include lower IQ and “executive function” (the broad term for cognitive processes that manage other cognitive processes such as planning, organizing, strategizing, paying attention, and working memory), self-control, and impulse regulation, poorer language skills, and an impaired ability to focus attention and ignore distraction. There are real cognitive skill deficits associated with growing up and living in poverty. The environment of poverty often induces trauma. Today the consequences of trauma are better understood, as well as how trauma can lead to PTSD and how it affects cognitive functioning. The Substance Abuse and Mental Health Services Administration (SAMHSA) has taken the lead in promoting the identification of trauma and providing trauma-informed care in a variety of settings. Moreover, these deficits and disorders can and often do persist into adulthood. One of the stark realities is that there is nothing about crime control policy, especially the enhanced severity of punishment, that can correct or overcome these types of neurocognitive and developmental deficits.
However, this is a new era, a new era in which there are vast amounts of actionable, policy-focused research and evaluation on a wide array of interventions that target behavioral change. There is a relatively comprehensive inventory of evidence-based practices that have been validated by dozens of meta-analyses. These evidence-based practices have a demonstrated record of significant behavioral change and recidivism reduction. There are a variety of examples of innovation and problem solving in the justice system, programs in local jurisdictions that sprung up out of recognition that business as usual was not working. The United States now has the opportunity to reverse a failed policy and get smart about crime and public safety.
Where we go from here depends on whether and in what ways these initiatives are translated into policy, programs, and procedures. It is based upon an appreciation that as more and more is understood about criminal behavior it is also understood that changing that behavior is a complex undertaking. It requires resources and expertise that historically have not had much involvement in the American justice system. It is the recognition that criminal justice as traditionally defined cannot accomplish public safety. Absent the elimination of poverty, mental illness, inadequate public education, physical health problems, homelessness, and so on, the American justice system will continue to be placed in the position of dealing with the failures of these institutions. The evidence makes it clear that the task requires a collective effort to address the complexities of criminal offending. That is what smart policy looks like—being smart about what is needed to accomplish public safety, being innovative and creative about where and how to obtain the proper resources and expertise, and understanding going forward that the key is collaboration with a wide variety of players. At the end of the day, this will involve a substantially different way of approaching the business of criminal justice. It will be an approach that is designed to understand and identify the complexity of reasons why criminal offenders are criminal offenders (the diagnosis phase); address the relevant, primary criminogenic deficits and conditions (the treatment phase); and provide the ongoing supports necessary to retain the treatment effects (the continuing care phase). As much as we may not like to put the U.S. criminal justice system in this position, it is the only approach that will cost-effectively enhance public safety, reduce victimization, and reduce recidivism short of eliminating the structural conditions and institutional failures that play a large role in crime in this country.
Much of what I discuss here cannot be easily legislated at the state or federal level. Granted, statutory changes will be required and funding will need to be redirected. However, justice policy going forward should not rely primarily on top-down mechanisms. In 2003 Oregon passed legislation requiring that 75 percent of the Department of Correction’s program funding should be used to support evidence-based programs. This is an important initiative, but such legislation does not necessarily address the extent and fidelity of the adoption of evidence-based practices, nor does it necessarily create a culture of innovation. State support is important; however, much of the substance of these changes requires local adoption and implementation. They also require significant changes in ways of thinking about crime and justice, public safety, and behavioral change, as well as substantial cultural change where they are implemented. Moreover, policy makers and elected officials will need to set aside the traditional political consequences of criminal justice policy (few public officials lost elections by being tough on crime) and adopt a smart, prudent focus on advancing public safety and avoiding needlessly placing victims at risk of preventable crimes.
Effective and appropriate implementation requires changing how criminal justice is funded. The current model is one in which the state pays for incarceration in prison, whereas the burden of paying for diversion (problem-solving courts, probation) and community-based rehabilitation is generally placed on local jurisdictions or is a combination of state and local funding. Financially, there is an incentive to send offenders to prison (no local cost) compared to community-based treatment. That must change. And there are innovative approaches available for states to evaluate and adapt. For example, California and several other states employ performance incentive funding to reduce recidivism and redirect funding to local jurisdictions. California counties that reduce the recidivism of probationers are provided a portion of the funds averted by not incarcerating them. The lower the probation recidivism rate, the more the county receives from the state for avoided incarceration costs.
The likely resistance to developing and paying for costly evidence-based diagnostic and treatment programs and facilities for those who break the law must be overcome. The sentiment is understandable—break the law, get help. What makes sense about that? The answers are money and public safety. If such interventions are not implemented, we will simply continue to pay the financial and the social costs of a criminal justice system that fails to change behavior and perpetuates unacceptably high levels of recidivism and victimization.
For those who follow U.S. criminal justice policy, the story is all too familiar. Between 1960 and 1992, violent crimes in the United States increased by 570 percent. National Crime Victimization data indicate substantial increases in violent victimization between 1973 (the inaugural year of the victimization survey) and 1992. The nation responded with a massive investment in law enforcement, the toughening of sentencing laws, a focus on possession and distribution of illegal drugs, and a massive, unprecedented expansion of incarceration and correctional control. The Bureau of Justice Statistics reports that between 1982 and 2006 (the most recent statistics), state and local criminal justice spending (including law enforcement, prosecution, courts, and corrections) increased from $32 billion to $186 billion, a 480 percent increase. Today, the United States has a prevalence rate of mentally ill prison and jail inmates nearly three times that of the general population, and an ageing inmate population (the percent of inmates age sixty-four and over is increasing at a rate ninety-four times that of the general population). Today, 10 percent of all children in the United States have a parent that is in prison, in jail, on probation, or on parole. Seven percent of minority children have a parent in prison. U.S. criminal justice is a very large, extraordinarily expensive system that produces a three-year rearrest rate for inmates released from prison of between 55 percent and 65 percent, and a reincarceration rate between 45 percent and 50 percent.
We, as a nation, have been participating in one of the most ambitious public policy experiments, in terms of scope, cost, and impact, that the United States has ever witnessed. Forty years ago, the United States had an incarceration rate (number of individuals in prison per 100,000 U.S. population) that mimicked those of most other nations in the world. The same could be said of our overall rate of correctional control, which includes prison, jail, probation, and parole. Today, the United States has the highest rate of incarceration (prison and jail) and correctional control in the world. How we got here, what we have accomplished, and, most importantly, where we should go from here are the topics of these pages.
Today, we find ourselves at a criminal justice crossroads. Crime is at the lowest level in decades. Many aspects or components of U.S. criminal justice are or recently have been at all-time record highs: criminal justice expenditures, prison and jail populations, community control populations (probation and parole), and incarceration rates. Some policy makers and elected officials exclaim that the substantial crime reductions experienced over the past few decades are a direct result of the massive expansion of criminal justice. More careful observers know that the story is a lot more complex and that there are many reasons for the crime reduction, only one of which is the impact of criminal justice policies and activities. The simple interpretation—that our past success with crime reduction is nearly exclusively a result of correctional policies—keeps us generally locked onto that path.
The harsh reality is that we are now encountering the fiscal challenges of crime control and are realizing we cannot afford it, especially when we consider that the public safety accomplishments of crime control are modest at best. The recession of 2008 triggered significant changes in state and local spending, including criminal justice spending. Reports by the National Association of State Budget Officers, the National League of Cities, and the Office of Community Oriented Policing Services indicate significant declines in criminal justice spending on law enforcement, prosecution, and corrections. News reports occasionally document the shuttering of prisons as the fiscal realities of the recession confront the high cost of crime control. It does not matter whether we begin heading down a path of smarter criminal justice policy because of a consensus that crime control does not work or because of the fiscal realities of crime control. The goal is to be willing for whatever reasons to redesign criminal justice policy according to the evidence, revamp practices and procedures, reorient funding, and implement significant statutory changes. The evidence is pretty clear that going down that road will reduce crime and recidivism, reduce victimizations, enhance public safety, and save money.
On August 12, 2013, Eric Holder, the Attorney General of the United States, spoke at the annual American Bar Association’s meeting of the House of Delegates. The topic was sentencing reform in the federal justice system. As I will discuss later in this book, in the late 1980s, Congress set in motion the massive and punitive restructuring of sentencing for individuals convicted of federal crimes. So were born the Federal Sentencing Guidelines, probably the most severe sentencing laws in the nation. The federal guidelines have lead to substantial increases in admissions to federal prison, for much longer sentences. Part of this was accomplished by a wide variety of mandatory sentences (as the name implies, situations in which the judge has no choice but to do as the guidelines indicate). Also key to advancing punishment at the federal level was the elimination of parole, requiring federal inmates to in effect serve the entire sentence imposed.
Enough background for now. In General Holder’s own words to the Bar Association:
As it stands, our system is in too many respects broken. The course we are on is far from sustainable … with an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter, and rehabilitate—not merely to warehouse and forget.
Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.
Even though this country comprises just 5 percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners. … And roughly 40 percent of former federal prisoners—and more than 60 percent of former state prisoners—are rearrested or have their supervision revoked within three years after their release, at great cost to U.S. taxpayers
This is why I have today mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders. … By reserving the most severe penalties for serious, high-level, or violent drug traffickers, we can better promote public safety, deterrence, and rehabilitation—while making our expenditures smarter and more productive.
Finally, my colleagues and I are taking steps to identify and share best practices for enhancing the use of diversion programs—such as drug treatment and community service initiatives—that can serve as effective alternatives to incarceration.
The point is that the changes implemented by the Attorney General and the discussions that will continue with Congress further help to clarify that we are at an important juncture in the history of U.S. criminal justice policy. What the Attorney General proposes for the federal government today and what may follow in the near term from these initiatives is heading down the road of smarter, more effective, and more cost-effective justice policy. And the fact that the U.S. Attorney General is on board and is carrying the banner of justice reform is highly symbolic for the rest of the nation. Having said that, the fact that General Holder resigned in the fall of 2014 may mean that these efforts are derailed or at least demoted, depending on the priorities of his successor.
We begin with a relatively brief overview of U.S. criminal justice policy—where we have been and why, and where we are today. This overview is necessary in order to place current policy in context, and is brief because there are many excellent, comprehensive discussions of how we got to where we are today (Beckett 1997; Beckett and Sasson 2004; Western 2006).
We then turn to a discussion of what the past forty years of unprecedented expansion of correctional control, especially incarceration, have accomplished. We have fundamentally reengineered criminal justice into a system with a nearly singular focus on control and punishment. The obvious question is: What have we achieved? We will consider the wisdom of continuing to punish offenders well after the justice system is through with them (for example, by prohibiting access to licensing and employment in a wide variety of occupations). We will ask questions like: What do we expect (not want, but expect) offenders to do once they are discharged from correctional control, no better, and often worse than when they arrived? What are the odds for convicted felons gaining legitimate employment? What do we expect when the parole system is largely a sorting mechanism for identifying violators, rather than a safety net for enhancing successful reentry and reintegration into the community? How do we expect released offenders to find sustainable housing if they lack resources and have a felony conviction? What do we expect when the clear majority of prison and jail inmates are addicted to controlled substances and alcohol, but very few receive any treatment while in the justice system and after release? The same issues apply to offenders with other mental health problems. The prevalence of mental illness in the U.S. criminal justice system is extraordinary, unprecedented, and shameful, largely a consequence of the failure of public mental health treatment and the willingness of the justice system to serve as the “asylum of last resort.” But when mentally ill offenders are released from custody with little treatment, what do we expect? What do we expect when they are released with two weeks’ worth of medication, when it usually takes two to three months to get an appointment with a psychiatrist in the community? These questions are not excuses for bad behavior. Criminal offenders do bad things. The point is, how smart is it to continue down a path for which the desired outcomes are rarely achieved? How smart is it to continue to assume that punishment will change behavior? How can punishment find housing or employment, or address addiction and mental illness?
Most discussions of U.S. criminal justice policy typically focus only on criticisms of where we have been, how and why we got here, and what is wrong with it. In 2011, James Austin criticized criminologists for the failure to provide a path forward for reforming the justice system and reducing incarceration. “Criminologists seem content to study and lament the origins of mass incarceration but not to orchestrate its demise” (Austin 2011: 632).
This book is different than many in that most of what we discuss is how and where we go from here. The process of creating today’s criminal justice system required substantial changes at all levels of government and included reframing how we think about crime and punishment; dramatic revisions of penal codes and sentencing statutes; massive redirection of public expenditures for law enforcement, courts, and corrections; construction of prisons and jails; and much more. Moving forward in the appropriate direction will require considering all of that again.
It is difficult to find many informed observers who will admit that the current justice system is effective and a prudent investment of public resources. Thus it should come as no surprise that we are going to recommend a different direction here. Just as getting to where we are today required substantial changes in a variety of areas, turning the current system around will not be a simple matter. Thus our discussion of a path forward will focus attention on most of the key components of the justice system, highlighting the fact that an effective and cost-effective future for U.S. criminal justice is multidimensional.
We will address the primary areas in need of reform or change, including: sentencing and the roles of prosecutors and judges in that process; diversion from traditional criminal adjudication and punishment; how probation should operate; how prisons should be used; how to address the problems associated with prison release and community reentry; and how to deal with the drug problem. Law enforcement does not receive much attention here not because it is unimportant, but because the vast majority of the necessary reform and reinvention involves what happens after someone is arrested.
These reforms will also require significant changes to how we think about crime and punishment and how we engage solutions. Much of what is effective in reducing crime and recidivism is tangible—structural, statutory, and financial. Equally important are two less tangible components—a cultural shift in which all individuals and agencies involved in this enterprise accept responsibility for reducing recidivism, and the practice of routinely embracing a problem-solving posture in doing the business of criminal justice.
The decisions and conclusions reached in this book are based on valid, reliable evidence provided by the scientific community regarding what is effective and what is ineffective in terms of criminal justice policy and practice. We are, in 2014, in a very fortunate position of having a couple of decades of scientific research that has focused precisely on the questions of what does and what does not work in terms of enhancing public safety. We are finally in a position to go beyond what sounds reasonable and effective (for example, boot camps, Scared Straight, DARE, the deterrent effect of punishment severity) to what scientific research demonstrates is effective.
One of the primary challenges in developing policy recommendations involves the complexity of the U.S. justice system. There are in effect fifty-two different, largely autonomous justice systems and jurisdictions—fifty states, the District of Columbia, and the federal system. Within the fifty state jurisdictions are over 3,100 counties or county equivalents with differing concerns, problems, financial means, and challenges with regard to crime, and varying approaches to public safety.
Most jurisdictions share the difficulty of significant fiscal constraints. This book is written at an opportune moment for implementing meaningful changes to U.S. justice policy, due to constrained state and local revenue streams. Fiscal conditions in part appear to be motivating legislatures to rethink the costs of “tough on crime” policies. This has led to a variety of initiatives such as accelerated early release of prison inmates (for example, in California), to modification of mandatory sentencing laws (for example, New York’s mitigation of the Rockefeller drug laws), to ramping up diversion resources (for example, Texas has foregone more prison expansion in favor of increased funding for probation). These changes appear to be consistent with justice reform, however they are a far cry from the systemic, nationwide shift in policy, statutes, funding, and thinking about crime and punishment of the extent and scale necessary to effectively reduce recidivism and victimization. After all, the Pew Charitable Trusts report released in November 2014 shows that most states anticipate increases in their prison populations over the next four years.
When the U.S. criminal justice system underwent the unprecedented changes that resulted in a nearly unilateral focus on punishment, there was essentially no scientific evidence supporting such a path. It was based largely on common sense and intuition. And there was little push back, because to oppose it was to oppose conventional wisdom. Today, we are in a much different position of having the evidence to support an effective, smart, and cost-effective strategy. What will catch the attention of policy makers and the public is not so much what the science indicates. Framing the path forward in terms of smart policy and cost-effective policy should help provide much needed traction.
I will provide what the scientific evidence indicates is best practice or evidence-based policy reform. I will then take that discussion a fair amount beyond what is typical of presentations of evidence-based practices. It appears that public opinion is generally supportive of this type of initiative and that the fiscal climate has forced states to start thinking about the cost of criminal justice. What is left is mustering the political support to facilitate real change in order to substantially reduce recidivism, crime, and victimization, as well as the cost of doing so.