What might real criminal justice look like?

We have seen that criminal conviction, with or without lengthy incarceration, results in many cases in increasing, not decreasing, the likelihood that a person will be arrested and charged again. Of course incarceration makes it even worse. We have also seen why harsher punishments are not generally effective deterrents to most forms of crime. Given the profound racial disparities and socio-economic disparities in arrest, charging, conviction and sentencing, the "criminal justice" system as it now operates serves largely to amplify and more deeply entrench inequality and disadvantage.

At the same time, it is those very neighborhoods where disadvantage is concentrated that face the most severe impacts from the kinds of highly visible crime that make the nightly news, which only serves to further degrade the quality of life and opportunities for people who live there. People in those neighborhoods are often the most vociferous in demanding enhanced police protection. How do we break this vicious circle?

 

There are many projects underway right now to try to do that. Principles to keep in mind are, first of all, effective deterrence does not depend on the severity of punishment, but on the swiftness and likelihood of accountability.  That's a much better word than punishment because it takes the idea of vengeance out of the goal. Granted, often victims and victims' loved ones do want vengeance for the most egregious crimes, but remember that we agreed in the beginning that we aren't talking about rape of children or rape murders or other most egregious offenses. We would have to consider those separately.

 

So what do we mean by accountability? First of all, the person who committed the crime has to get the message, in no uncertain terms, that the conduct is unacceptable. Brief incarceration may help to get that message across in some cases, but longer term incarceration is mostly counterproductive. In appropriate circumstances, losing the right to drive or own a firearm, for some substantial term, may be called for. (Note however that outside of urban environments that are well-served by mass transit, losing the right to drive can also mean losing the ability to work, or go to school.) A restraining order, to keep the person away from people she or he has harmed can make the victims feel safer, and vindicated, assuming they are enforced, and also serve to drive home the message to the offender that they have done wrong.

 

Restitution and/or community service serve two purposes: they create responsibility that, again, signals to the offender the wrongness of their actions, but they also create the possibility of atonement and forgiveness. In fact they can increase the person's self-esteem and even lead to a habit of volunteering, or a profession. At the same time, we need to meet the needs and try to fix the problems that created a high risk of criminal offending in the first place. 

 

This is where much of the public balks. Why should criminals get mental health and substance abuse treatment, tutoring and specialized classes so they can get a GED or a trade, employability service and job placement, transportation vouchers, help finding housing . . . . when I don't get any of those things, at least not affordably. Those are very good questions, and I think you already know my answer. 

 

Anyway, although models vary somewhat, the basic concept is called diversion, and/or alternative sentencing. The judge delays the trial date (a euphemism -- very few cases go to trial, contra Law and Order, most result in a plea) and imposes some conditions the person needs to meet. These may indeed include restitution or community service, along with conditions such as mental health evaluation and following treatment recommendations; SUD evaluation and following treatment recommendations; random drug/alcohol testing; anger management classes, and a restraining order or curfew. Although these are often conditions of bail, most people get little or no help finding and accessing services.

 

The ideal program, therefore, puts everything under one roof. This includes intake assessment and individual service planning (called the “Life Skills Development Plan” in one program I'm familiar with); mental health and life skills counseling; medical assessment and referral, or ideally, primary care in the same setting, integrated with behavioral health care; SUD counseling and referral if indicated; housing assistance; financial counseling; employability and employment. Also, very important, case management: someone to make sure the person gets the services they need, and also arranges for community service, restitution, drug and alcohol testing, and keeps in touch with the courts. 

 

At the end of the process, if the person completes all of the requirements, and has not been re-arrested, they will see their charges dismissed and -- very important! -- their record expunged. That relieves them of all the disabilities that come with a criminal record. That doesn't mean the record is invisible to the court if the person is charged with a new crime, but it is invisible to potential employers, schools and landlords. 

 

Certainly there are additional considerations in some cases. People in recovery from SUD, for example, often want to be peer counselors, or work in health care settings. Due consideration is required for their own safety. Furthermore there is a complicated discussion to be had about SUD treatment more broadly, what works and what is required for it to work.  Obviously we aren't talking about child abusers being able to work in child care or elementary schools, although there is a very complicated discussion to be had about the public labeling of sex offenders. I'm not about to go into all that right now but I might in the future. 

 

Anyway, all of this may be a hard sell politically, especially right now, but what I'm doing for a living right now is trying to prove that it works. There's already growing evidence for it but we need to nail it down. Maybe we'll never get Republican legislators to vote for it but the solution to that is to vote them out of office. I'm happy to take any questions.