OP-ED: Reforming criminal justice
”Our criminal justice system treats you better if you are rich and guilty than if you are poor and innocent.”
- Bryan Stevenson
Fear of criminals and being soft on crime has been a Republican go-to election issue since the race-baiting “Willie Horton” H.W. Bush commercials during the 1988 presidential campaign. Famously, Republican Bush attacked Democrat Michael Dukakis for permitting convicted murders to receive weekend furloughs from prison.
The campaign use of the criminal justice system again reappeared in the most recent Senate race between Democrat John Fetterman and Republican Mehmet Oz. Lt. Gov. Fetterman served as chairman of Pennsylvania’s Board of Pardons and called for prison reform. Oz repeatedly claimed, in attack ads and statements to the press, that his opponent wanted to release criminals from prison making Pennsylvania less safe.
It is interesting how contradictory Republican positions have been when it comes to proposing legislation on criminal justice or in taking actions while in office. During the 2016 presidential primaries, many Republican candidates advanced positions on criminal justice. Their conservative proposals were designed to save taxpayers from paying for expensive prison systems by limiting prison time.
Former president Donald Trump weighed in with prison reform, signing into law the 2018 First Step Act. This legislation reduced penalties for crack cocaine offenses and afforded prisoners more opportunities to obtain an earlier release by participating in programs designed to reduce recidivism.
At the end of his term, Trump pardoned a woman sentenced to life after her conviction for cocaine trafficking. (The president’s friend, Kim Kardashian, championed her cause.) In addition, Trump pardoned numerous close allies who committed crimes in support of his presidency.
Politics aside, criminal justice in America suffers from major systemic problems that require the attention of both political parties. The truth is that it was a concerted bipartisan effort that built our out-of-control prison industrial complex in the first place. For several decades, both political parties championed long sentences for minor drug offenses. The overbuilding of prisons in rural areas became a common pork barrel project. How the damage might be repaired is the subject of this commentary.
There is a general consensus that America imprisons too many people for far too long when compared to the rest of the world or even our own history. There are now more people serving life sentences than the total number of prisoners held in U.S. prisons in the early 1970s. Black people represent 35% of those in state prison for drug possession, even though Blacks make up only 13% of the population and use drugs in the same numbers as other racial groups.
High unemployment and government assistance rates, loss of tax revenues and decreased job mobility among former prisoners result in a loss of $87 billion to our annual GNP. The total cost of the American criminal justice system is nearly $1.2 trillion each year. Children of parents who are incarcerated are more likely to live in poverty and suffer from mental health issues. As an example of the cost to society, states spend more on those sentenced to 10 or more years in prison than they do on K-12 students over 13 school years.
What is to be done? Experts agree that there are four possible justifications for putting people in prison. First, is “punishment,” the price for ignoring society’s rules. Second is “incapacitation” or removing from society those who would do us harm. Third is “deterrence,” making would-be criminals think twice before breaking the law. To address these three goals reformers are now examining what the lawbreakers deserve. They ask the question what is a proper criminal sentence. Many believe that mandatory sentencing laws often do not fit the crime and are out of proportion to the criminal offense.
The fourth justification for jailing individuals, “rehabilitation,” has drawn the most attention of criminal justice advocates. Correctional institutions have done a poor job of “correcting” their populations. The Federal Bureau of Justice Statistics establishes that following release, two-thirds of prisoners are rearrested. While in-prison programs need improvement with updated social science models to reorient those with criminal intent, many believe that preemptive childhood programs are the true answer. This would include heavy investment in education, housing, health care and jobs.
To combat criminal justice abuses, there is a vocal, progressive contingent that has called for the abolition of much of the criminal justice system. However, most Americans are not in favor of emptying the prisons or defunding the police. In fact, minorities living in urban areas have often called for more police as gun violence escalates.
There is still much that can be accomplished. The criminal justice system can double-down on rehabilitation efforts. Jail sentences for petty crimes and small-scale drug dealing can be eliminated and replaced with diversionary programs like special drug and mental health courts. Solitary confinement can be eliminated as a punishment tool. The present system of cash bail, which insures that many low-income defendants will languish in jail before having their day in court, can be reformed. Public safety involving the mentally ill can be shifted from the police to qualified mental health professionals. Violence intervention programs to deal with urban gangs can receive more adequate funding.
President Biden has proposed numerous criminal justice reforms. These programs have little chance of gaining traction in the upcoming divided Congress. It will be left to state and local governments to enact improvements that will make a difference.
Gary Stout is a Washington attorney.