Sessions Federal Marijuana Policy Just Plain Dumb

It should not come as a surprise.  We certainly have had enough hints that U.S. Attorney General Jeff Sessions was planning on repealing the Obama Administration’s 2013 hands-off policy regarding enforcement of federal marijuana laws in states where recreational use is legal (known as the Cole memo).  To date, that includes eight states and the District of Columbia. The most recent convert is California, which legalized recreational marijuana use on January 1, 2018.  The national news the next day was populated with story after story about new pot dispensaries across the state opening with long lines of eager buyers.

Sessions has a long history of concerns about marijuana, which include his 1996 support of a mandatory death penalty bill for a second conviction for marijuana trafficking (including marijuana dealing) when we was Attorney General of Alabama.  Since he became U.S. Attorney General, he has made no secret that he “is dubious about marijuana,” that "good people don't smoke marijuana," and that “it is a very real danger.”

It is not clear where Attorney General Sessions gets his information, but scientific evidence does not appear to be a high priority for the Trump Administration.  That is obvious from their approach to the opioid crisis, from Trump saying just don’t start using and you won’t have a problem, to Sessions saying we need to “create a culture that is hostile to drug abuse.”  So we either Just Say No or we ramp up the war on drugs.  How well have either of those approaches worked?

Prior to the announcement about repeal of the Cole Memo, the Attorney General’s key drug policy initiative has been to require U.S. Attorneys to charge the most serious offense in federal drug cases, with the goal being the maximization of punishment. It is obvious that the only response that the Trump Administration has to drug use is punishment.  It seems they have not seen the memo that reports that the recidivism (reoffending) rate of drug offenders is 77 percent.

I want to be very clear.  I am not a marijuana advocate. I don’t really have an opinion about whether someone should use marijuana recreationally just as I don’t have a position on recreational use of alcohol.  I would add however that there are potential harms associated with any substance use, harms that include abuse, dependence and addiction, and a variety of behavioral and physical health implications.

Opponents to marijuana legalization, including Sessions, claim that marijuana is a gateway drug, meaning it leads to the use of harder drugs like cocaine, crack and opioids including heroin.  The evidence they cite is that among users of harder drugs, the majority used marijuana at some point.  What they fail to appreciate is that the gateway argument also requires that among marijuana users, the majority of them use harder drugs.  That is not true according to the National Institute on Drug Abuse, a branch of the National Institutes of Health.

In 2015, there were 1.6 million people arrested on drug charges, and nearly one-half of those were for possession of marijuana.  The war on drugs is alive and well despite the fact that the vast majority of the experts and the majority of the public have concluded it is a dismal failure.  In fact, a recent poll from the Pew Research Center indicates that nearly three-quarters believe that the government should provide treatment for people who have drug problems rather than prosecuting people for drug use.  Moreover, between 55 percent and 65 percent believe marijuana should be legalized.  Of course, Sessions does have an explanation for why public opinion supports a different course of action for the drug problem -- “I do believe … that the public is not properly educated on some of the issues related to marijuana.”

Here is the bottom line.  The criminal justice response to drug use has failed.  The repeal of the Cole Memo is simply another page from that very tired old playbook that has no basis in fact.  Legalization takes the cartels out of the marijuana business (a good thing), provides revenue to states (a good thing), and keeps hundreds of thousands of individuals out of the criminal justice system (a good thing).

What is Sessions’ concern?  Is it the fact of marijuana and the fact that people use it, or is it that some users will eventually abuse it and thus develop substance use disorders?  Federal enforcement will help neither of these concerns. Drug abuse if a medical disorder that requires a public health response.

The Opioid Crisis is an Opportunity for Re-Calibrating Drug Policy

The opioid crisis is killing over 140 Americans every day. It is devastating communities, many in rural areas that have few resources for dealing with it.  Emergency department visits for opioid-related problems increased by over 100% between 2005 and 2014. The annual economic impact of opioid addiction and abuse alone is nearly $79 billion.

Opioid addiction and abuse is also affecting the economy.  Regina Mitchell, the co-owner of a steel fabricating business in Hubbard Ohio, an area hard hit by opioid addiction, is struggling to fill job vacancies in her factory.  She observed in a recent interview with the CBS affiliate WTVR “There are good paying jobs and the opportunity in our area.  We just can’t find people to show up and pass a drug test.”

On Tuesday August 8th President Trump was briefed on the opioid crisis by health officials and members of his administration.  After the briefing, he offered the following advice.  The “best way to prevent drug addiction and overdose is to prevent people from abusing drugs in the first place. If they don’t start, they won’t have a problem… So if we can keep them from going on — and maybe by talking to youth and telling them: ‘No good, really bad for you in every way.’ But if they don’t start, it will never be a problem.”

It is obvious that Trump has no understanding of addiction or abuse. First, his words are shockingly reminiscent of Nancy Reagan and “Just say no” and drug education programs like the DARE program.  The evidence is clear that “Just say no” and DARE were and are naïve and ineffective.

So, don’t start, but for those who do, the Trump Administration has a second prong to their approach, which is the criminal justice system and punishment.

Jeff Sessions, the Attorney General in the Trump Administration recently announced the requirement that federal prosecutors must charge drug offenders with the most severe offenses possible.  Sessions words in a speech on August 2nd send a pretty clear message. "In recent years some of the government officials in our country I think have mistakenly sent mixed messages about the harmfulness of drugs…" We cannot capitulate intellectually or morally unto this kind of rampant drug abuse. We must create a culture that's hostile to drug abuse."

For the past fifty years, we have been waging a war on drugs that has relied nearly exclusively on supply control and tough punishment. 

Despite the logic of limiting the availability of drugs and threatening and punishing those who are involved in the drug trade and using drugs, the report card for tough on drug crime is bleak.  We have invested over $1 trillion over the past forty-five years on the war on drugs.  There is essentially no evidence in support of the success of that effort and one would be hard pressed to find many with knowledge of the war on drugs who would claim it has worked. 

Why has it failed?

The medical community declared nearly seven decades ago that drug and alcohol addiction and dependence are medical disorders.  We can’t punish diabetes or cancer away.  Why do we think getting tough on addiction would work?

To complicate the landscape, approximately 40 percent of opioid dependent individuals have comorbid or co-occurring psychiatric disorders.  Common comorbid conditions include depression, anxiety and bipolar disorder.  Post-traumatic stress disorder and personality disorders are also present, though less frequently. Punishment is not only ineffective, it often exacerbates mental health disorders.

Punishment also does not deter those with substance use disorders. Today, the vast majority of individuals who enter the U.S. criminal justice system have a substance use disorder, meaning addiction, dependence or abuse.  The recidivism rate for those with such disorders is nearly 80 percent. The reason is simple – punishment does nothing to address drug abuse, dependence or addiction.

It’s time to stop disregarding the scientific and clinical evidence. It’s time to get realistic about how we should address the drug problem.  The evidence is unequivocal – we cannot effectively control supply.  There is simply too much money to be made.  We should recalibrate drug policy by dramatically ramping up evidence-based strategies of demand reduction.  The only way to reduce the incidence of substance use disorders is effective treatment.  Ideally, that should occur outside the confines of the justice system with community-based treatment.  Those who end up in the justice system should be diverted to treatment, not simply locked up. 

Drug abuse is a public health problem.  It is time we treat it that way.

Criminal Justice Reform Is More Than Just Reforming the Criminal Justice System

The U.S. has been on a punishment binge for the past fifty years. We have the largest prison system and the highest rate of incarceration in the world.  The invoice for all of this is around $1 trillion per year for the criminal justice system and collateral social and economic costs.

The recent recession that devastated the economy and drastically diminished tax revenue stimulated states to take a hard look at how they spend money.  A common target of spending cuts has been incarceration, leading to slight reductions in the overall prison population across the country.

Reducing the prison population may be wise fiscal reform. It is however, not what I think of as criminal justice reform. 

Many of the problems with the criminal justice system are a result of one glaring fact – the recidivism or reoffending rate is over 65%. This leads to extraordinary court dockets and excessive and unmanageable caseloads for prosecutors, public defenders, and probation and parole officers.  It also accounts for crowded jails and prisons.

Our failure to reduce recidivism has resulted in a nearly perfect revolving door.  At the same time, we have unnecessarily and avoidably exposed all of us to the risk of criminal victimization and wasted enormous amounts of money.

Where do we go from here?

True, comprehensive criminal justice reform should be based on understanding what drives recidivism and in turn, determining how to effectively and cost efficiently reduce it.  Here is what we know.

Nearly one-half of individuals in the criminal justice system have a mental illness.  The vast majority have a substance use disorder, meaning addiction, dependence or abuse.  Sixty percent of prison inmates have had at least one traumatic brain injury, often resulting in cognitive impairments like poor impulse control, decision making, planning, attention, goal directed action, self monitoring and complex cognition.  In addition, many criminal offenders have educational deficits and employment and housing problems among others.

These are not excuses or apologies for crime.  They simply are the realities.  Another reality is that offenders with a mental illness or substance use disorder have an 80% recidivism rate. We cannot punish mental illness out of someone and there is nothing about prison or jail that fixes addiction or cognitive dysfunction. 

The good news is that there is overwhelming clinical evidence that many of the disorders, deficits and impairments that offenders have can be treated, mitigated and managed, in turn substantially reducing recidivism and saving tremendous amounts of money. 

The state of our criminal justice system is, in part, the result of the failure the public health. The unfortunate fact is that the criminal justice system has become the dumping ground or repository for many disordered offenders, the vast majority of whom do not have the resources to obtain treatment. As a result of offender indigence and inadequate public health funding, many end up in the criminal justice system simply because there is nowhere else for them to go.  There is simply no way to think of that as an acceptable or sustainable outcome.

Despite the Republican opposition to it, the Affordable Care Act or Obamacare has gone a long way in expanding both public and private funding for treatment for mental illness, substance abuse and neurocognitive disorders. That has extremely important outcomes for public safety.  All of that is at substantial risk of going away. 

Today, Medicaid provides the majority of mental health treatment in this country.  Medicaid is also a substantial funder of all substance abuse treatment. 

One of the key provisions of the House version of repeal and replace is a substantial rollback of Medicaid expansion.  The Senate version includes massive cuts to Medicaid.

Changing health care law does not occur in a silo.  There are realities of repeal and replace that go well beyond the political advantages many who support such changes may enjoy.  All of these members of Congress represent states that will experience the important negative consequences for crime, recidivism, victimization, and the cost of criminal justice.  When have we had enough?  When do we demand an end to the revolving door and massive fiscal waste?

Krajicek/Kelly Q&A/From Retribution to Public Safety

By David J. Krajicek

Texas criminologist William R. Kelly comes out swinging in his latest book, a sharp analysis and corrective focused on the nation’s macho and cockeyed prison compulsion.

“One would have to look far and wide to find a greater public policy failure than the American criminal justice system,” he writes to begin Chapter One of From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice (Rowman & Littlefield).

“The truly unfortunate reality is that despite our nearly universal embrace of ramping up the severity of punishment, it does not work,” Kelly tells The Crime Report. “There is nothing about punishment that changes the underlying conditions, disorders and deficits that the majority of criminal offenders bring into the justice system. Jail not only does not cure mental illness, it often exacerbates it.”

He says the justice system has become “the dumping ground for the failure of a variety of other public institutions.” Arrestees with mental illness, substance use disorders, neurocognitive impairments, intellectual deficits, financial, education and employment problems, homelessness, and other problems churn through the system and into prison, where the underlying issues that led to a lawless life are ignored.

The “disruptive innovation” of Kelly’s book title would include independent panels of clinical experts who would screen and assess the needs of offenders, and make recommendations to prosecutors regarding diversion.  The point is to make better decisions about who to prosecute and punish and who to divert to treatment with the aim of dramatically increasing the number diverted.

Kelly is a University of Texas-Austin sociology professor. In a Q&A with TCR Contributing Editor David J. Krajicek, he argues for more sophistication and less blunt-force politics in criminal justice decisions—beginning with more carrot and less stick for many offenders.

The Crime Report: What is the impact of the country’s justice policy failures?

William R. Kelly: The short financial and statistical answer is that over the past 45 years, we have spent $1 trillion on the war on crime, $1 trillion on the war on drugs and have accomplished a recidivism rate of 65 percent. Nearly all of this effort has focused on trying to punish crime out of people, based on naïve conceptions of criminality such as “hanging around with the wrong people” and “making bad decisions.” The evidence is quite clear that crime has much more complex origins and correlates.

What we have accomplished is a nearly perfect recidivism machine, placing all of us at the unnecessary and avoidable risk of criminal victimization, and wasting extraordinary amounts of money.

TCR: You refer to “the culture of American criminal justice.” What are its key characteristics and how do you change it?

Kelly: It is squarely based on the “tough on crime” mantra. This has dictated the decisions of legislators, prosecutors, judges, and corrections officials. The focus over the past 45 years has been driven by retribution and misguided assumptions that punishment deters reoffending. The question that has been routinely asked is how much punishment does this offender deserve. A more productive question for many offenders is how do we reduce the likelihood a particular offender will reoffend…

We need to provide clear incentives to motivate changing how we think about crime and punishment.  Cost-benefit analyses conclusively show that behavioral change through clinical intervention like mental health and substance use disorder treatment is much more effective and cost efficient. The financial advantages should motivate legislators and local government officials.  Reducing recidivism should be an incentive for prosecutors, judges, public defenders, and probation and parole officers, who will benefit from reductions in caseloads.  Then there is the greater good of enhanced public safety, something we incorrectly assume the justice system already does.

TCR: You say the facile American view of crime and punishment got us here. Have voters grown more sophisticated, or are reform-minded pols still at risk of being Willie Hortoned?

Kelly: Public opinion data demonstrate that much of the public has a more nuanced view of crime and punishment than many legislators, prosecutors and judges. The public believes that the purpose of corrections is to rehabilitate offenders and therefore reduce recidivism. Many have moved beyond “lock ‘em up and throw away the key.”

Unfortunately, many policymakers, elected officials and some segments of the public still seem to be holding on to the idea that criminals are just bad people deserving maximum punishment. I’m sorry to say that Willie Horton is alive and well…There appears to be a real reluctance to really embrace meaningful, comprehensive criminal justice reform.

TCR: You write, “We have arrived at the nadir of politics and policy.” Did you write that before or after Donald Trump’s election?

Kelly: I wrote that before Trump was elected when I incorrectly believed that we had already reached bottom. Who would have thought that anyone with any sense of history and even a superficial exposure to the evidence would run as the law and order candidate and resurrect the war on drugs?

TCR: How do you demonstrate that “tough” and “dumb” are synonyms when it comes to criminal justice?

Kelly: You focus on the enormous financial waste that the justice policy has produced. While there will be endless debates about what’s right or just and who deserves what, it is pretty hard to ignore the bottom line. A recent study estimates that the criminal justice and collateral social costs of tough on crime is $1 trillion per year. And it’s hard to reconcile 65 percent recidivism.

TCR:  Who’s to blame for the state of “correctional malpractice” you say we are in?

Kelly: First and foremost, elected officials who have blindly championed tough on crime to their political benefit, but to the detriment of public safety and the prudent use of tax dollars. State legislators and Congress have provided the mechanisms for tough on crime--mandatory sentences, restrictive parole release laws, and an ever-expanding criminal code that seems to make criminal justice the go-to system for just about every social ill. 

But the culpability of elected officials goes well beyond that. The vast majority of offenders in the criminal justice system have a substance use disorder, 40 percent are mentally ill, and 60 percent have had a least one traumatic brain injury often leading to neurocognitive dysfunction…The decision to not properly fund public health, schools and social welfare agencies have created problems that by default are managed by the criminal justice system.  

Criminal justice reform means much more than merely reforming the criminal justice system. It requires massive changes to and investment in a variety of collateral institutions.

TCR: Your book articulates and recommends a scientific approach to justice reform. Yet science is out of favor in Washington and many state houses right now. Is there a scientific path forward?

Kelly: Yes there is, but I am afraid that we need to disguise it for some, by minimizing the science and emphasizing the public safety benefits and cost savings.

TCR: You note an overlooked data point: the country has 21 million people with substance abuse disorder, the world’s third-highest rate. What explains this particular American exceptionalism?

Kelly: It is largely a result of the lack of public substance abuse resources, including inadequate treatment capacity and insurance coverage. Much of it can be attributed to the failure of the war on drugs and the belief that we can either punish or threaten substance abuse disorders out of people. Criminalizing substance abuse rather than treating it as a public health problem has led to the failure to provide adequate funding for treatment.

Unfortunately, the picture is bleaker. The majority of substance abuse and mental health treatment in the U.S. is paid for by Medicaid. Current versions of repeal and replace the Affordable Care Act call for substantial cuts to Medicaid. That does not bode well for a problem that is crippling the country, the economy, communities, families, and the criminal justice system.

TCR: You write that we have used an absurdly simplistic approach (lock ‘em up) for a boundlessly complex problem. Explain briefly the research on comorbidity among inmates.

Kelly: The vast majority of offenders in the criminal justice system have clearly identifiable disorders, deficits and impairments. Many have more than one disorder, known as comorbidity or co-occurring disorders. For example, the majority of offenders with a mental illness also have a substance use disorder. Neurocognitive problems are often co-morbid with mental health and substance abuse. It does not require a clinician to appreciate that “lockin’ ‘em up” does nothing to alleviate these conditions and in fact typically exacerbates them.

When we do attempt to address these problems--diversion to a drug court or a mental health court--our focus is on just one crime-related condition. Our correctional treatment and rehabilitation efforts typically ignore comorbidity. 

TCR: What do the rest of us in a presumably civilized society owe these damaged people?

Kelly: I don’t think it’s so much what we owe them, but what do we owe ourselves--lower crime and recidivism, lower risk of being victims of crime, and lower cost of criminal justice. We have the tools to accomplish these things, but making it a political priority has been elusive.

TCR: You compare the U.S. system to those of Germany and Holland; it doesn’t stack up well.  You cite one lesson we can learn from those countries: “If you treat inmates like humans, they will act like humans.” How is it possible that we don’t know that already?

Kelly: In order to justify our draconian and dysfunctional reliance on punishment, we need to think of criminals as “not like us” in fundamental ways, as deserving retribution and harsh punishment. Punishment is what we have been told is the only thing “these people” will understand. Our Western allies have better outcomes for those they incarcerate because they focus on preparing offenders to be released and live crime-free, productive lives. Our approach often is to de-humanize prison inmates and emphasize punishment over rehabilitation. We do little to facilitate successful reentry into society.

Psychological research confirmed a long time ago that, in most cases, incentives work much better than punishment for changing behavior. This is another example of the disjuncture between scientific evidence and criminal justice policy.

TCR: Your key recommendation is an “unprecedented expansion” of diversion away from court toward intervention and treatment. Describe the panel review process you suggest.

Kelly: Traditional criminal prosecution, conviction and punishment are entirely appropriate for many offenders. For example, violent offenders and chronic, habitual offenders probably need to be separated from society through incarceration in the interest of public safety. For many others, such as non-violent offenders and many drug offenders, we have a much better chance of reducing recidivism by diverting them and mitigating the factors that are associated with their criminality.  One of the key issues here is making good decisions about who to divert and who to prosecute.

We developed the concept of independent panels of clinical experts to facilitate better decision-making, both in terms of who should be diverted and what treatment or intervention will decrease the probability of recidivism. Offenders often have complex clinical needs that require the special expertise of psychiatrists, psychologists and clinical social workers who can assess and diagnose, determine the risk of reoffending, and make recommendations to prosecutors.

The goal is to divert appropriate individuals away from traditional prosecution to situations where their risk can be supervised and managed and where they can receive adequate treatment and intervention.

TCR: And this the “disruptive innovation” of your book title?

Kelly: The panels are part of it. Implementing this concept will require a substantial shift in how prosecutors do their jobs, as well as how we think about crime and punishment. In effect, this requires changing the criminal justice culture.

We also argue that all levels of government need to address major deficiencies in public health, a fundamental consideration in assuring adequate capacity and expertise for intervention and treatment. The bigger picture is that criminal justice reform requires disruptive innovation of collateral institutions, such as public health.

TCR: And how might it be greeted by prosecutors, who hold all the power right now?

Kelly: This will not be easy. However, reasonable incentives for prosecutors should be recidivism reduction, in turn reducing caseloads. The primary reasons that prosecutors’ caseloads are so large and unmanageable is because of the failure to reduce recidivism. 

TCR: You say these changes will force us to redefine success in our justice system. How so?

Kelly: Success should be measured by recidivism rates, something directly related to performance of criminal justice. As it stands now, there really is no accountability. Everyone involved in criminal justice--legislators, police, prosecutors, defense attorneys, judges and corrections officials--should all be held responsible for recidivism reduction. That would also be a disruptive change.

TCR: Tell me about the process of partnering with Robert Pitman and William Streusand in this book.

Kelly: I wrote the book, but both Pitman and Streusand played very important roles in devising solutions. For example, Pitman, a former U.S. Attorney who is now a federal judge, brought his knowledge and expertise to the task of developing statutory and procedural details for how the expert panels would fit into the roles and responsibilities of prosecutors, defense counsel and judges. The input of Streusand, a psychiatrist, was crucial in the development of the clinical protocol for the expert panels and assessing offender dysfunction, as well as the discussions about fixing public health.

TCR: You were going through a serious health crisis while writing this book, as you point out in the introduction. I hope you are doing well. I wonder if that diversion somehow informed the book’s content.

Kelly: Thank you. I am in complete remission and feel very blessed. To be honest, I could not have worked out any better. I was diagnosed in early March of 2016, when I had a rough draft of one chapter written. I was so fortunate that I had this project to distract me from the reality of being pretty sick and going through some difficult chemo. It was also fortuitous that I had two collaborators who are very good friends and played important roles in my recovery.

I’m not sure that being sick informed the content but I suspect it influenced the tone. If I sound impatient at times in the book, it is probably a result of being confronted with the reality that life is short.

David J. Krajicek (@djkrajicek), a contributing editor with The Crime Report, has been writing about criminal justice since the 1970s

President Trump and Criminal Justice Reform

The election of Donald Trump raises many, many questions regarding what his administration will prioritize and try to accomplish.  We have been given bits and pieces of Trump’s positions on a variety of issues but little in terms of explicit policy statements.  Criminal justice is one of the issues that Trump has spoken of on the campaign trail. What he has said does not bode well for criminal justice reform.

Trump has branded himself as the law and order candidate (July 2016) and the tough on crime candidate. In November 2015 on MSNBC he said  "I'm tough on crime. I mean I’m a believer in tough on crime, I really am. … You look at what's going on in the inner cities right now, it's unbelievable. … It's like the Wild West." In another interview on MSNBC in August of 2016, Trump stated “we have to get a lot tougher [on crime}.”

Trump has criticized the Obama administration’s release of approximately 600 low-level drug offenders from federal prison.  Not letting the facts get in his way, Trump declared “Obama is even releasing violent criminals from the jails, including drug dealers, and those with gun crimes. And they're being let go by the thousands. By the thousands. … Obama pushed for changes to sentencing laws that released thousands of dangerous, drug-trafficking felons and gang members who prey on civilians.”

Trump has held tough on crime beliefs for at least 16 years.  His 2000 book The America We Deserve presents a variety of Trump opinions about crime.  For example, he stated that crime is not a result of poverty or childhood maltreatment.  Rather, he portrays such explanations as soft on crime.  His prescription for public safety is being tough.  “Tough crime policies are the most important form of national defense…Aggressive anticrime policies are the best social program (http://www.vox.com/2016/5/25/11737264/donald-trump-criminal-justice-republican-president). Trump is an avid advocate of imprisonment, showing no concern for current levels of incarceration and clear distain for recent, ever-so-modest reform efforts.

There is legislation in Congress proposing modest changes to federal sentencing, which has enjoyed some bi-partisan support.  But it has languished there for over two years and the prospects of it being resurrected under President Trump are bleak.

While the evidence is overwhelmingly in support of reducing punitive policies and implementing comprehensive, evidence-based clinical intervention and rehabilitation programs, that may not phase a Trump administration. Trump does not appear to be particularly tied to scientific evidence.  For example, he believes climate change is a hoax.

The law and order, tough on crime President-elect says we need to stay the course of tough sentencing, mass incarceration and retribution.

The early speculation is that Rudy Giuliani is Trump’s first choice for Attorney General.  Not only can the Justice Department set the crime policy agenda, history shows us that they play a substantial role in facilitating that agenda at the state level.  There is little doubt that Giuliani will advance tough on crime initiatives.

What does all of this portend for criminal justice reform?  There have been some state level rollbacks of tough on crime policies, especially in terms of sentencing laws and prison populations. Fiscal pressures may keep some states headed in that direction, but to reiterate, this is very modest change.

The bigger picture of criminal justice reform is much more extensive and comprehensive than what has transpired or been considered to date.  For example, the recidivism rate of mentally ill prisoners is 80 percent.  That screams revolving door and should serve as a clue about diverting to clinical treatment many of the 40% of prison inmates who are mentally disordered.  So too for the vast majority who have a substance use disorder, as well as those with neurocognitive and intellectual impairment and deficits. 

One very important unknown in all of this is the political impact Trump will have on reform.  My fear is that a federal tough on crime agenda will increase the political risk associated with current reform efforts, in turn keeping any surviving reform efforts piecemeal and modest .  It is worse news for extensive, comprehensive criminal justice reform. Among other things, reform requires effective leadership.  I just do not see that coming from a Trump White House.

Sentencing Reform: A Page From the Old Playbook?

It has been a busy month so far for federal criminal justice reform. On October 1, the Senate unveiled the Sentencing Reform and Corrections Act of 2015. On October 8, the House Sentencing Reform Act was introduced.

The bills share much in common and have been portrayed as “comprehensive,” “extensive,” “landmark legislation,” a “game-changer,” and “the most important federal criminal justice overhaul in a generation.” But there are many questions about the mechanics of this legislation, as well as questions about the longer-term consequences—such as their impact on federal incarceration levels, racial disparities in sentencing and, importantly, recidivism.

There are also serious questions about whether they will ever see the light of day, given that Congress seems hopelessly mired in partisan politics.The bills’ provisions include the following: 

• reducing some mandatory minimum sentences for low level, non-violent drug offenders;* reducing the mandatory life without parole for a third drug or violent felony to 25 years:
• reducing the mandatory minimum 20 years for a second drug of violent felony to 15 years;
• closing the crack-powder cocaine disparity and making it retroactive;
• providing judges with more discretion in sentencing selected low-level drug cases:
• reducing the 15- and 25- year mandatory minimum sentences for certain gun crimes to 10 years and 15 years
• reducing the federal three-strikes law from life to 25 years;
• reducing time served for inmates who participate in prison programs; and
• creating some new mandatory minimum sentences. 
• While this legislation seems to be a step in the right direction, there is a bigger picture here that I believe it misses.

Granted, the majority of federal prison inmates are drug offenders, so a focus on reducing sentences for some low level, non-violent drug offenders is a good thing. We saw some of that last  week with the announcement of the early release of 6,000 non-violent drug offenders, who received what many consider exceedingly harsh penalties under the federal sentencing guidelines. Closing the crack-powder disparity should have been done years ago, and the evidence is clear that three-strikes laws are ineffective, as is much mandatory sentencing.

Giving judges the opportunity to mitigate sentences in selected low-level drug cases is a plus, as is motivating selected offenders to participate in programing while in prison.

My concern is not that this legislation doesn’t go far enough in what it proposes, although I believe that is the case. Rather, my concern is what it doesn’t propose.

The fact is: It’s based nearly exclusively on the old playbook.

It is the same tired story of trying to punish the crime out of offenders. Granted that punishment has been reduced in some cases. Nevertheless, a punishment-centered approach to crime and recidivism reduction is what has resulted in recidivism rates north of 70 percent and has cost hundreds of billions of dollars.

Not an impressive return on investment.

This “comprehensive,” “landmark,” “game-changing” legislation says very little about addressing why offenders end up in prison in the first place.  Both bills are essentially silent about the factors that commonly underlie criminal offending.  There is little in this legislation that seriously addresses the causes of  recidivism.

The evidence for a broader approach to justice reform is compelling.

Criminal offending is commonly a function of a variety of genetic and environmental influences, such as substance abuse, mental illness, neurodevelopmental and neurocognitive deficits, as well as educational deficits, employment problems, and homelessness.

Yes, sometimes crime is just a bad decision or the result of hanging around with the wrong crowd. But for the most part, crime is more complex and challenging.  In turn, reducing crime and recidivism requires that we focus on mitigating those factors implicated in offending.  Failure to do so has resulted in what most today would conclude is a wasteful, ineffective justice system.

Let me be clear.  These deficits, impairments, and disorders are not excuses for crime. They are not get-out-of-jail-free cards. But they are the more common crime-related factors that, if left unchanged, dramatically increase the likelihood of reoffending and re-victimization.

The bills pay insufficient attention to  the fact that 80 percent of individuals in the criminal justice system are substance abusers, that 40 percent have a diagnosable mental illness, and 60 percent  in prison have at least one traumatic brain injury.

We cannot punish away mental illness. Incarceration does not reverse traumatic brain injury, lack of impulse control, or PTSD. Simply not using cocaine in prison is not addiction treatment.

There’s nothing in the Senate or House bills that improves the rehabilitative efforts for offenders on probation, or enhances diversion programs like drug courts. The SAFE Justice Act, an alternative House bill, includes many of the sentencing changes discussed above. It also includes some provisions for recidivism reduction, but the scale of those provisions is unclear.

In short, federal criminal justice policy has been, and seemingly will continue to be, drastically out of balance, focusing nearly exclusively on punishment. Unfortunately, punishment does not change the underlying reasons many offenders are involved in crime, and that is the primary reason we have out-of-control recidivism and a failed criminal justice system.

We need incarceration, but on a much reduced scale. Since punishment does not change behavior, prison should be reserved for the truly dangerous, chronic, habitual offenders, and rehabilitation failures, those we need to separate from society. Prison should be for those we realistically fear, not those who simply make us mad.

Why is it important to discuss these limitations of federal reform efforts?

First, while there are some provisions for recidivism reduction in the legislation, it is unclear how extensive those efforts would be. Moreover, none of the bills make recidivism reduction a priority. This needlessly compromises public safety and wastes taxpayer money.

Second, while the federal system is actually quite small—federal prisons incarcerate only 12 percent of the total prison population in the U.S.—federal criminal justice reforms are quite visible and can provide a roadmap for others to consider.

Federal efforts can and do help set the agenda for the states. Unfortunately, the pending Senate Sentencing Reform and Corrections Act of 2015 and the House Sentencing Reform Act, which are garnering a considerable amount of attention and praise, set the wrong agenda.

The Way We Sentence Criminals Needs to Change and This is How We Do It

Should prison sentences be based on crimes that haven’t been committed yet? That’s the question several recent news articles have been posing. One such article highlighted how in Pennsylvania, judges could soon consider a new dimension when it comes to sentencing: the future. The article describes how judges may start using statistical assessments of the probability of recidivism in the sentencing process. 

The idea of basing a criminal sentence on the likelihood of future criminality is nothing new.  That practice is known as selective incapacitation, which is an attempt to identify those most likely to reoffend and give them longer prison sentences.  That is typically what judges do when they consider an offender’s prior crimes, which are an important, though imperfect, predictor of future crime.

Rather than focusing on the narrower question of should judges use risk assessments to determine punishment, I believe we should ask a broader question – what information, including but not limited to risk assessment, should be used in the sentencing process, and who should be involved in determining the sentence?

Criminal sentencing in the U.S., whether based on statistical probabilities or judicial discretion, has essentially been a harm-based system of punishment, with unremitting emphasis on severity, proportionality (the punishment fits the crime), and risk.  The punishment-focused system that we created over the past 50 years is how we got to the point of spending hundreds of billions of dollars to achieve an 80 percent recidivism rate. 

That is not an impressive return on investment.

We should reserve incarceration for those we truly fear — violent offenders, and those for whom we have little hope for rehabilitation such as chronic habitual offenders. And while risk should be a consideration for some offenders, it is inappropriate as a wholesale policy of sentencing.  Rather, the evidence-based path to an effective criminal justice system, one that actually reduces crime, recidivism, victimization and cost is one that balances risk-based sentences of incapacitation and need-based diversion.

We have put a substantial amount of effort in determining how bad offenders are. We have put relatively little effort in understanding why criminals do what they do.

Here is what we do know.  Eighty percent of offenders have substance abuse problems and 40 percent are mentally ill.  About 60 percent of prison inmates have had at least one traumatic brain injury, which is implicated in a variety of neurocognitive disabilities such as impulse control, aggression, learning impairments, problems understanding and processing information, and compromised executive functioning, such as lack of ability to plan, organize and problem solve. Without knowing what characteristics particular offenders bring into the justice system, we cannot implement interventions that the evidence indicates can substantially alter these problems and in turn, reduce the likelihood of reoffending.

Effective sentencing should be collaborative, involving a variety of relevant experts in assessment and sentencing decisions. Judges are lawyers, trained in criminal jurisprudence, charged with assuring due process. They are not trained in the complexities of human behavior, therefore they should not be the sole voice in sentencing decisions. 

Judges should collaborate with experts from a variety of disciplines as appropriate – psychologists, addiction specialists, neuroscientists, psychiatrists, vocational, occupational and educational specialists – to problem solve and develop a supervision and intervention plan.

A reasonable comparison is what occurs in drug courts. Drug courts are effective at reducing substance abuse and recidivism. The judge oversees a process that involves a team of experts engaging in problem solving, setting expectations, compiling assessment information, developing and implementing an intervention and supervision management plan, and dealing with noncompliance and reoffending. And they are much more cost efficient than punishment alone.

An over-emphasis on risk keeps us on a path of punishment, incapacitation and failure in the business of reducing reoffending. The research indicates that an effective criminal justice system is one that involves assessing risk, but also the situational, physical, behavioral, cognitive, and psychiatric problems of offenders.  In turn, the goal is the mitigation of those problems, deficits and impairments. It’s time to change the way we sentence offenders. 

Crime Is Not The Problem

The July 31, 2015 AP headline reports “Baltimore killings soar to level unseen in 43 years.” The story documents that there have been nearly 200 homicides in Baltimore so far this year, compared to 119 by the end of July 2014.  Predictably, there has been much concern expressed by local leaders. Part of the response included Baltimore Mayor Stephanie Rawlings-Blake firing the Police Commissioner Anthony Batts on July 8. The mayor stated “Too many continue to die on our streets. Families are tired of dealing with this pain, and so am I. Recent events have placed an intense focus on our police leadership, distracting many from what needs to be our main focus: the fight against crime."  Baltimore is not alone in this trend of increasing urban violence in the U.S. -- Milwaukee, New Orleans, St. Louis, Chicago and Houston have seen murders spike this year.  Baltimore is also not alone in responding to this increase in violence as a “fight against crime”, which naturally places the responsibility for addressing it on the criminal justice system.  Local police, the front line in the fight against crime, are the primary agents tasked with fixing the problem.

Unfortunately, policy makers and local officials have failed to see the bigger picture.  The problem is that the violence in Baltimore and other cities across the U.S. is generally but a symptom.  Unfortunately, the current criminal justice system can fix neither the symptom nor the underlying disorder.

For the past 50 years, we have thought of crime as largely a matter of criminals making bad choices and hanging out with the wrong people.  A substantial element in this way of thinking about crime is that offenders act out of some kind of free will.  That assumption has guided our responses to crime – punish offenders severely so that they change their decision making, so that they make better choices.  While there is some truth to this, it tragically misses a vitally important reality. Offenders engage in crime for a variety of reasons and under a variety of circumstances and constraints.  Over 40% of criminal offenders who end up in the American criminal justice system have a diagnosable mental illness.  Eighty percent of offenders have a substance abuse problem, consisting of abuse, dependence or addiction.  Many suffer the neurodevelopmental consequences of growing up in poverty, exposure to violence, living in households characterized by abandonment and chaos, and physical brain trauma, among many others.  Moreover, large segments of the offender population have substantial educational and employment deficits, which severely limit opportunities and viable alternatives to crime.

I don’t cite this evidence about criminals and their characteristics to excuse bad behavior.  No matter the underlying causes, crime has profoundly negative consequences for victims, families, neighborhoods, and larger communities.  The point is to highlight the futility of continuing down our well tread path of punishment centered, tough on crime policies.  Punishment doesn’t work because it doesn’t do anything to change these underlying conditions, disorders and deficits that characterize the vast majority of criminal offenders.   The situation is really not that different from simply treating a fever with aspirin, rather than diagnosing the underlying causes of the fever and treating them.  Unfortunately, we don’t even have a sufficient aspirin equivalent in the criminal justice arsenal.

While there is clear and convincing political pressure on the mayor of Baltimore and public officials in many other large cities across the U.S to address the increase in crime, especially violent crime, the reality is there is little they can do under the current criminal justice regime to effectively reduce crime.

This is not just a failure of the American criminal justice system.  There are many others involved, including inadequate public mental health and substance abuse treatment, failed public education especially in the poorest areas in urban America, unrelenting poverty, absence of adequate neurocognitive and neurodevelopmental interventions, and lack of employment training and jobs.  For a variety of reasons, the justice system has been the default repository for the consequences of many of these institutional failures, and unfortunately, with recidivism rates north of 80%, we just seem to make the situation worse.

The good news is that we have the tools today to effectively change behavior.  The scientific evidence is quite clear that correctional intervention and treatment can dramatically reduce recidivism. If we continue to fail to adequately address the reasons people commit crime, why should we expect the situation to change? 

We also need to appreciate that we all share some of the responsibility for crime.  After all, we elect the public officials who make the decisions about criminal justice policy, mental health and substance abuse treatment, public education, job creation, and poverty.