Musings from the Bunker 7/13/20
As we all prepare for another productive week, here’s a little bit of my reasoning for some meaningful change to our criminal justice system. Before reacting, read all the way through…
PUNISHMENT THAT FITS THE CRIME
Last week I indicated that an unwillingness to forgive people for single acts or statements that offend is a poison that eats at our civil discourse and our ability to communicate with each other. Similarly, I believe an inability to forgive and allow someone to apologize and reform after having committed criminal acts is rupturing our society.
It is said that punishment is intended to cover several purposes:
1. The specific deterrence of the individual (that person can’t commit the crime again)
2. General deterrence of others (by seeing the punishment others will be prevented from committing a similar act)
3. Retribution (people “deserve” to be punished—see, e.g., Stanley Milgram’s experiments…)
4. Societal statements of an underlying morality that somehow “purifies” society (i.e., telegraphing society’s purity by punishing those who have transgressed)
It is well established that any punishment whose cruelty exceeds the cruelty of the crime is immoral. Yet our criminal justice system removes people from society for prolonged periods of time that only sometimes are related to the gravity of the crime. What else can explain the “three strikes rule,” significant jail time for drug-related crimes, or the sheer length of mandatory sentencing? Our society seems hell-bent on retribution. How else can one explain the cruelty of increasing sentencing based upon judges listening to litanies from victims or their families?
There isn’t enough space to discuss the many flaws in our criminal justice system, I’ll just touch on a few flaws that further conviction and incarceration for as long as possible, with little logic behind them:
• Our focus on “law and order,” rather than “to protect and to serve” makes police officers feel they are there not to be part of a community and trying to serve that community. Instead, they are being told to protect “us” from “them.” There are police officers whom I have met, working in Watts, who are making a difference in reducing crime and dealing with the helping young people traumatized by violence. Until more police officers are seen as part of the community, rather than policing the community, I fear we are on difficult footing making our cities safer and the underserved and mentally challenged better understood and served.
• We have a public prosecutors’ system that rewards prosecutors for wins and for extracting the greatest sentence. Often extenuating circumstances, legitimate alibis, and scientific exoneration are not even part of the program. Plea bargaining with defendants who cannot receive adequate defense exposes everyone—but particularly the poor—to accept a sentence even when it would be in their best interest not to do so. If the national system of criminal prosecution doesn’t scare you yet, read Emily Bazelon’s book, Charged.
• Until legislators stop trying to throw red meat at their constituents, in an increasingly hostile, mean-spirited “law and order” mantra, it’s tough to see this trend to greater sentencing reversing.
• Even if one is worried about recidivism, what is accomplished by housing 40 and 50-something people in horrible conditions, when we know that by that age, crimes generally aren’t committed.
• The idea that victims’ relatives should be allowed to speak to the judge at sentencing is absurd. It’s not about “victims’ rights.” The victims should be compensated by society for their loss (or in civil court for some form of restitution). There is no place for “piling on” because relatives tell tearful stories.
• Prosecutors should not be permitted to speak against parole at parole hearings. The hearings themselves are not about punishment, but are about whether the person is sufficiently rehabilitated (which has nothing to do with the original crime). Here’s a link to a story about the silliness of parole hearings, written by my absolute favorite journalist: https://thecrimereport.org/2018/10/25/parole-hearings-should-be-off-limits-to-prosecutors-paper/
We are in a moment when rethinking our objectives in criminal justice is in order. Perhaps the human condition has evolved such that we no longer crave the retributive punishment that satisfies a pretty awful human attribute. Perhaps the societal statement we should be making is that we care about the crime but we care also about the person—we need to refocus on rehabilitation and job training. We need our justice system to be one of fairness and moving forward—not merely a system of long-term incarceration. Some of this is fueled, of course, by the prison guards’ unions and the corporate jail system, both areas worthy of rethinking.
Finally, let’s acknowledge that many crimes are not crimes at all; they are illnesses. People who are addicts are not in full control of themselves. We should treat them as ill, not as criminals, and should fashion rehabilitation accordingly.
A WILD IDEA
We throw around prison sentencing guidelines and prison terms as if they’re monopoly money. They really don’t mean anything until one pauses to think about them. Should a particular crime bear a three year prison term? Or five? Or twenty? Or life? These are extraordinarily long periods of time.
It would seem to me that the denial of someone’s liberty for any time is a meaningful punishment. None of us would want to spend a month in prison, much less a year. It would seem that even a few years is more than enough to separate convicted criminals from society. Plus some who go have gone to prison unfairly or through the failure of the system. Shorter terms at least ensure that mistakes have less impact.
It seems prison is about three things. The first is to deter other crimes. The second is to satisfy ourselves that the person will not commit a similar crime in the future. The third is that the person can reenter society and be productive. We spend far too little time on understanding these last two.
So here’s my proposal. It is a work in process that is not fully baked and no doubt will offend some, but here it is:
1. All crimes that do not involve murder, rape (or the attempt of either), or use of a deadly weapon in the commission of a felony, have a three year term. That’s it. At the end of three years, it is incumbent upon some third party arbiter to make the case that either the person is not rehabilitated or it is reasonable to assume they will commit another similar violent crime again. If not, away they go. Because we are not housing and feeding people for a prolonged time, the saved money can go towards job training and rehabilitation.
2. All crimes that involve the use and sale of drugs, for the first offense, carry a maximum one year term. Same deal as above. However, the users (who have not been involved in trafficking or sales) should be in a drug rehabilitation program. All of these people, upon release, would be subject to periodic review and continued treatment.
3. So here’s the one that likely will freak people out. All violent crimes would also have a maximum term. I say five years; you may think longer. But here’s the reasoning. After removal from society, their odds of reentering society with their nefarious colleagues upon release is pretty low. In the case of crimes of passion, they certainly are unlikely to find themselves in a similar circumstance in the future. So, unless they are serial killers, serial rapists, pre-meditated murderers, truly depraved, or the state can demonstrate their immediate danger to society, let them out. And watch them carefully.
Let’s also remember that most violent crimes are committed by men in their 20s and 30s. I don’t have the statistics at my fingertips, but my recollection is that essentially no crime is committed by people over 50 years of age. Sure there are some, but the numbers are miniscule. Why does society cruelly let people rot and die in prison?
And while we’re at it, let them vote once they’re out and rehabilitated! And after some reasonable period (maybe a year) stop requiring them to identify them as criminals for the rest of their lives, limiting their job prospects. California voters will have the opportunity to vote on this in November.
WHAT I’M NOT ADDRESSING HERE
There are many issues that need to be dealt with “pre-sentencing,” which I’m not addressing here, to wit:
1. The cash bail system—but California residents will be able to vote on this in November. Why are the poor stuck in jail awaiting trial just because they can’t come up with the cash?
2. The right of the police to lie in order to elicit statements from suspects There are other aspects of police behavior that require reformation. One area is the police unions that defend all behaviors—regardless of how outrageous they may be. They perpetuate a culture gone awry.
3. The immense leverage prosecutors have to pursue cases and to plea bargain, even when they may know there isn’t a good reason to pursue a defendant
4. Police misconduct
5. Inadequate defense lawyers
6. Information withheld from the defense
7. I could go on, but this isn’t a treatise—merely a Musing!
I welcome some interchange on this “radical” idea.