The cost of your conviction

This attitude that I’ve written about before: the attitude of us vs. them, which is enshrined in the ‘tough on crime’ policies of the 80s and 90s, has consequences. Real life consequences that affect you and me, the “us”, as much as they affect the “them”. There’s a financial cost to society that goes unnoticed: the high cost of incarceration, the cost of having non-productive members of society and the cost of destroyed lives. We bear the burden of all of these.

The New York Times has this lengthy piece on the consequences that long-term incarceration strategies have on families. From driving family members to welfare, to neglect in childcare:

“I thought I was going to lose my mind,” he said. “I felt so bad leaving my wife alone with our daughters. When they were young, they’d ask on the phone where I was, and I’d tell them I was away at camp.”

His wife went on welfare and turned to relatives to care for their daughters while she visited him at prisons in Tennessee, Texas, Arizona and New Mexico.  “I wanted to work, but I couldn’t have a job and go visit him,” Ms. Hamilton said. “When he was in New Mexico, it would take me three days to get there on the bus. I’d go out there and stay for a month in a trailer near the prison.”

In Washington, she and her daughters moved from relative to relative, not always together. During one homeless spell, Ms. Hamilton slept by herself for a month in her car. She eventually found a federally subsidized apartment of her own, and once the children were in school she took part-time jobs. But the scrimping never stopped. “We had a lot of Oodles of Noodles,” she recalled.

to increasing rates of sexually transmitted diseases and teen pregnancy:

Epidemiologists have found that when the incarceration rate rises in a county, there tends to be a subsequent increase in the rates of sexually transmitted diseases and teenage pregnancy, possibly because women have less power to require their partners to practice protected sex or remain monogamous.

When researchers try to explain why AIDS is much more prevalent among blacks than whites, they point to the consequences of incarceration, which disrupts steady relationships and can lead to high-risk sexual behavior.

to juvenile delinquency and a new generation of troubled youth:

Some families, of course, benefit after an abusive parent or spouse is locked up. But Christopher Wildeman, a Yale sociologist, has found that children are generally more likely to suffer academically and socially after the incarceration of a parent. Boys left fatherless become more physically aggressive. Spouses of prisoners become more prone to depression and other mental and physical problems.

to the most obvious: institutional obstacles to rehabilitation and reintegration into society. Employers are rather reluctant to employ anyone with a criminal record and with hundreds of thousands of Americans currently on the streets with convictions, the drain on our collective resources is immediate and significant.

A stint behind bars tends to worsen job prospects that weren’t good to begin with. “People who go to prison would have very low wages even without incarceration,” said Dr. Western, the Harvard sociologist and author of “Punishment and Inequality in America.”“They have very little education, on average, and they live in communities with poor job opportunities, and so on. For all this, the balance of the social science evidence shows that prison makes things worse.”

Dr. Western and Becky Pettit, a sociologist at the University of Washington, estimate, after controlling for various socioeconomic factors, that incarceration typically reduces annual earnings by 40 percent for the typical male former prisoner.

Speaking of the costs of a conviction, Doug Berman asks if SCOTUS’ decision [PDF] on the retroactivity of Padilla v. Kentucky (it’s not retroactive) may be of broader use to criminal defendants (it is). Padilla, for those not in the know, held that it was ineffective assistance of counsel for a lawyer to fail to advise his client of the collateral consequences of a criminal conviction. In that case, the consequence was deportation. Prof. Berman points to Justice Sotomayor’s writing “Padilla’s holding [is that] the failure to advise about a non-criminal consequence could violate the Sixth Amendment” as evidence that maybe Padilla can be expanded to apply to other consequences. My response, as I indicated when Padilla was decided, is: duh.

Immigration isn’t the only consequence: there is sex offender registration that ruins lives, loss of housing, inability to vote, inability to receive certain benefits. The list goes on. These cases, creating additional duties on the part of defense counsel, exist not because we are obligated to advise our clients about everything, no matter how outlandish, but rather because these negative consequences are all too real and all too severe. And people should have the benefit of that knowledge before making any decision that will irrevocably change their lives.

Finally, yesterday, NPR’ ‘On Point’ program had almost an hour dedicated to the very question of the efficacy of the high costs of incarceration and whether we were getting just return for our “investment”. I can already tell you the answer is no. I’ve linked to the entire segment below; it’s well worth a listen.

Look. As the NYT article acknowledges and as I’ve said a million times before, no one is claiming that crimes should not be punished. They absolutely should be. The question always has been whether the punishment – all of the punishment, which is greater than just the incarceration – is commensurate to the crime. Is the benefit to society justified by draconian sentences and a lack of rehabilitation and reintegration?

The answer, obviously, is no. So the next time you start screaming bloody murder and demand that the hammer of justice be smashed into someone’s skull, take a minute to pause and think: how much is really necessary to accomplish what we want to and is there a better way to serve society? You will inevitably come to the conclusion that “tough on crime” has a cost that we should not be willing to pay.

4 thoughts on “The cost of your conviction

  1. Trace Rabern

    Great post, Gid. I agree that the dismantling of the old “collateral consequences” exclusion is a big deal out of an otherwise disappointing opinion.

    Here in NM, we’ve gotten the appellate courts to treat poor/non-existent advice as to sex offender registration the way Padilla treated poor/non-existent advice on immigration consequences. That is to say, if defense counsel did not fully and accurately counsel about the sex offender registration consequences of a given plea, a defendant has a basis to argue for withdrawal of it. (It should be noted that NM recognized IAC in immigration consequences advice a couple years before Padilla in a case called Paradez.) That case is State v. Jovan Edwards,which can be found here:

    1. Gideon Post author

      Sadly, our court has gone in an entirely different direction, holding that even if you plead to something that doesn’t require registration and if the court specifically tells you do no not have to register, probation can still make you register and it’s not illegal and your only choice is to withdraw your plea, not get the benefit that you bargained for.

  2. Pingback: The discomfort of principles | a public defender

  3. Pingback: Man. Black. Guilty. | a public defender

Leave a Reply