It’s time to wake up (updated)

It’s a different world today than it was in the ’80s, ’90s and even the early whats. The economy may or may not be recovering, but one thing is for sure: budget deficits are spiraling out of control. Crime may be down, but the workload of the criminal justice system is up. In particular, the burden on public defender systems is one that has rarely been seen before.

Whether this is a product of reduced funding, of lengthy sentences coming home to roost, of a zero-tolerance “tough on crime” policy enacted years ago or of the sheer overcriminalization of our society is an open question (my guess: a mix of them all). When a small state like CT has 1663 crimes defined in its statutes (and that’s in 2006; several more have been added since) and when books are written warning us that we commit three felonies a day, it’s time for someone to sit up and take notice. And by someone I mean those with the power to change the direction we’ve gone in: legislators and voters. So you, all of you.

The repercussions of too many people in the justice system are beginning to reverberate throughout the country: Georgia is on its 4th lawsuit to force indigent defense spending; Michigan is being sued by three defendants who claim that the lack of funding forced their public defenders to pressure them into entering pleas of guilty; the Missouri Supreme Court recently allowed public defenders the nuclear option of shutting down their doors and refusing cases if caseloads got unmanageable; the costs in Ohio are rising quick; the Fresno public defender’s office got permission to lay off 6 attorneys before the end of the year to balance their budget; and contract attorneys in Nebraska have been receiving a $100 flat fee instead of $50 per hour for all misdemeanor cases.

Should I even go near the financial black hole that is the death penalty?  How, in times where basic rights of defendants may be in jeopardy – ordinary run of the mill defendants, mind you – can we even consider sustaining the machinery of death?

This will not end anytime soon and even if there is an alleviation of the financial crisis, the impact on the criminal justice system will be temporary. More crimes will be committed, more knee-jerk reactions will be induced and harsher sentences will be given out. The burden continues to build until there is a fundamental change in the way we think about the numbers, the crimes and the system.

A report from 2000, that I’ve mentioned before, seems to have gotten it right. Too bad no one is listening. I’ll reprint the salient points:

Prison overcrowding has a cyclical pattern in Connecticut — reaching a crisis point about every 10 years. The committee report showed most of the causes of prison overcrowding occurred outside the administration and jurisdiction of the Department of Correction and these complex issues and problems cannot be addressed by a single state agency. Specifically, the program review committee identified five main causes of prison overcrowding. They are:

  • Despite the decrease in arrest and crime rates, the number of offenders in prison or jail continued to increase due to the “war on drugs”, increased funding for police, increased role of victims and victim advocacy groups in the court process, added bed capacity in the correctional system, recidivism and technical violations of probation and parole, harsher penalties for certain types of crimes, and narrowed eligibility for community release and alternative sanction options.
  • Convicted inmates were remaining incarcerated for a greater portion of their court-imposed prison sentences as a result of the shift from an indeterminate to a determinate sentencing structure, elimination of “good time”, creation of time-served standards for parole eligibility, and the enactment of several “truth in sentencing” initiatives.
  • The aggressive “tough on crime” approach supported by the legislature and adopted by the executive and judicial branches allows the criminal justice system to narrow its use of discretion and take a more conservative and less controversial approach to punishment.
  • A lack of prison beds, especially high security and pre-trial beds, forced DOC to operate at capacity.
  • Poor planning and a lack of an accurate population projection and offender needs analysis contributed to the cycle of overcrowding and hampered DOC’s efforts to adequately plan for new or expanded facilities.

In reviewing options available to manage and control growth of the inmate population, the committee found Connecticut cannot build its way out of a prison overcrowding crisis. However, prison expansion is one model to address prison overcrowding. This strategy has been Connecticut’s primary response to prison overcrowding over the past 20 years. It is the simplest but least effective and most expensive approach. Services in this model are concentrated primarily on the small percent (25 percent) of the offender population in prison.

And yet here we are: more crimes, longer sentences and an almost unmanageable burden. We’re still fighting the absurd war on drugs and on parolees and probationers. While our prison population has seen somewhat of a slight decline from the record numbers of last year, it would be a tremendous mistake to consider that an improvement. The record numbers were the result of the Governor’s ban on parole. But don’t let that obscure the fact that even prior to the ban, the population numbers were already at the breaking point.

And it’s not going to get any better. Per the OPM‘s most recent projections, the population is expected to increase from its current numbers to around 18, 942. [Here are the Dec 2009 monthly indicators.] The most recent breakdown of inmates by crimes is this one from 2007. And here’s the most recent recidivism study [there’s a wealth of information in there if you’re interested].

So how is this to be done? Over the years, I’ve made many suggestions: legalize marijuana, get realistic about prison sentences, divert all non-violent offenders into treatment and community based rehab, address the problem at its root, etc.

[Update: This NYT editorial makes the case for smart reforms, pointing to a slew of legislation pending in NJ to make the prison system more rehabilitation centric. Among some of the proposals is one akin to the ban the box idea implemented in New Haven earlier this year.]

But it’s all a futile exercise. It’s never going to happen unless there’s a fundamental shift in the thinking. That shift may well be driven by the financial engine. So how about taking a different tact. How about we keep detailed statistics: how many people end up going to jail for a violation of probation for drug problems instead of to a treatment facility? Let’s keep a record of that for 3 years and calculate the cost of sending that person to jail. How about defendants sentenced to 7 years in jail where 5 years would have been just as good. Keep a track of the costs there. How many inmates were denied entry into programs for lack of beds and so instead were forced to take a prison sentence? Let’s keep track of that.

At the end of 3 years, let’s add it all up and look at the staggering cost of our penal system. Let’s put it into real numbers and compare it to the budget shortfall. Extrapolate that over the last 20 years and I bet we will see that these “tough on crime” policies have come at a significant, tangible cost to us.

4 thoughts on “It’s time to wake up (updated)

  1. Dr. SunWolf

    Ah, the Seductive Power of numbers–you’ve nailed the problem, Gideon.

    As a former public defender who dared to enter full-time graduate school after decades of trials, I quickly learned how academics loves statistics–but, more importantly, surviving 3 graduate courses in advanced statistics, how malleable all statistical tests are. Yee gads, the right “formula” can give you nearly any answer you hoped for.

    So, yes, let’s give them new statistics. Now, as a legitimate [?] social scientist, I say let’s give them EXPERIMENTS! Let’s randomly assign for a year crimes-against-property defendants to 1 of 3 conditions: (a) jail time, (b) intense probation, or (c) job training and a live-able wage job. Who repeats?

    1. Bill Thompson

      What? You’re suggesting an evidence based approach to our system of retribution and rehabilitation? Our county probation department has just recently implemented a new risk assessment approach to better utilize the precious resources of our criminal justice system. Part of the underlying study suggests that recidivism rates are potentially 20% higher for defendants having contact with the waiting rooms of probation departments. As a result, the new system recognizes individuals for whom reporting probation supervision is actually a detriment to their efforts to live a clean life. (Sorry I threw that percentage in there, I just couldn’t help myself.) The beauty of these economically strapped times is that it forces the system to become more efficient. In my experience, this tends to foster reforms which include diversion and alternative disposition programs.

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