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.

The Criminal Justice System is a Massive Failure. Here’s a Solution

Contrary to logic, intuition and common sense, the hard fact is that punishment does not reduce criminal offending.

 This may be a difficult one for some to swallow, especially since the past 45 years and more than 1 trillion dollars have been spent on punishment as the centerpiece of American criminal justice policy. We essentially bet the farm on punishing more and more criminal offenders more and more severely. Unfortunately, we lost the farm.

 We missed one very important observation.  The simple fact is that while punishment works for the most part on those of us who are law abiding, criminal offenders are not us. They lack many of the opportunities, alternatives and options we have.  Punishment doesn’t change many of the problems, deficits and impairment that characterize the offender population. 

 A number of factors came into play to keep punishment as the primary tool of criminal justice.  Front and center are the political benefits of keeping the train headed in the same direction and gaining momentum. Politicians routinely claimed it worked, often accompanied by the rallying cries of “lock em up and throw away the key” and “do the crime, do the time.”

 But the evidence of how big of a policy failure it actually is is overwhelming. We have the largest prison population in the world and the vast majority of criminal offenders, well north of 60 percent, reoffend within three years of being released from prison.

 Fortunately, today we have the tools to remarkably reduce crime, recidivism, victimization and cost, if we are smart.

 Criminal justice policy going forward should be based on the simple premise of accurately distinguishing between those offenders we should rightfully fear, and those who just make us mad. 

 For those we rightfully fear – violent offenders, truly habitual offenders, and those who have no interest in behavioral change, there is prison. Those are the offenders who need to be removed from society.

 But for those who do not fall into the “truly fear” category, we need a different path.

 The evidence is clear that the key is diversion from incarceration, accompanied by accurate screening and assessment to determine what problems need to be addressed, and providing the necessary resources to effectively change behavior. All of this needs to be done in an environment of supervision, compliance, and accountability, accompanied by appropriate sanctioning for non-compliance.  Sounds simple, but the devil is truly in the details. 

 We need to build sufficient diversion and treatment capacity, change sentencing laws to provide for much greater diversion, bring the necessary clinical expertise to the table, make judicial and prosecutorial decision making much more collaborative, and change how we think about crime and punishment. For example, drug courts are very effective at reducing substance abuse and recidivism. And they are much more cost efficient compared to punishment alone.  However, while there are approximately 3,000 drug courts in the U.S., the capacity of these courts is sufficient to address only about 10 percent of the need.

 Large percentages of criminal offenders have substance abuse problems, are mentally ill, or have neurocognitive impairments and deficits. Unemployment, poor education and occasionally homelessness also plague offenders.  Current policies do little to change any of these problems.  Comprehensive, systematic change to the criminal justice system is required if we want to enhance public safety and reduce cost.

 Every presidential candidate, both republican and democratic, has chimed in on criminal justice reform, but none seem to grasp the big picture. The American criminal justice system is a massive failure, which requires a comprehensive solution. We have an opportunity today to get smart about crime and criminal justice policy. We have an effective path forward, which is based on scientific evidence. What we appear to lack is the willingness to embrace the solution with the enthusiasm and resources with which we embraced tough on crime 45 years ago. 

In America’s Justice System, the Crime is the Punishment

Common sense tells us that criminal offending stems from bad decisions or poor judgment. While perhaps convenient, that logic has resulted in one of the largest policy failures in American history — a failed experiment that has cost U.S. taxpayers north of $900 billion over the past 40 years, has resulted in millions of avoidable criminal victimizations and has created a justice system with a revolving door. This needs to change, but change requires a fundamental shift in our thinking and philosophy about crime and punishment.

The stories are all too commonplace. Sharanda Jones, a 32-year-old mother of a 9-year-old, had no prior arrests yet was sentenced in Texas to life in prison for conspiracy to distribute crack cocaine. Her conviction was based on testimony of her co-defendants who gave her up for reduced sentences.

Marissa Alexander of Jacksonville, Florida, testified that her abusive husband attempted to strangle her when he discovered a text message that she had sent to her ex-husband. She tried to leave but had forgotten her car keys. She re-entered the residence to get her keys with a gun she had taken from the garage. When her husband attacked her again, she fired a warning shot into the ceiling. She received 20 years for aggravated assault.

These sentences, far from being out of the ordinary, are a reflection of America’s 40-year punishment binge. Texas and the rest of the nation have bet the farm on being tough on crime. We lost.

Crime control, the centerpiece of American criminal justice policy for the past four decades, is premised on a simple, intuitive, logical concept — the way to reduce crime and recidivism is through harsh punishment. Punishment, and its threat, shape our behavior and socialize us into being productive members of society. However, policymakers and elected officials who relished the rhetoric of “tough on crime” failed to appreciate that criminal offenders are different from most of us. Therein lies the fallacy. Many offenders come from different backgrounds, different circumstances and have a variety of problems, deficits and impairments that we label criminogenic needs or circumstances. The majority — 80 percent — are addicted or abuse drugs and alcohol. Between 35 to 50 percent are mentally ill. Significant numbers suffer from a variety of neurodevelopmental and neurocognitive disorders and deficits. Most come from disadvantage, disorder and poverty, conditions that can have profound effects on mental health and neurocognitive functioning. Educational deficits and unemployment add to the mix of limited opportunity.

I am not making apologies for criminal offending, and I am not attempting to provide excuses or mitigate offenders’ culpability or responsibility. Rather, the goal is to get smarter about crime and justice. What is it about punishment that changes drug addiction? Some may mistake abstinence from drugs while incarcerated for addiction treatment. It is not. How does incarceration enhance the employability of an ex-offender or treat major depression or borderline personality disorder? How can correctional control undo the neurocognitive disorders that stem from growing up in poverty and lethality? The answer is that punishment does not address any of these problems, and in many cases incarceration aggravates those conditions that cause people to enter the justice system in the first place.

The path forward acknowledges that we need incarceration to incapacitate dangerous, violent and habitual offenders. Our best bet is to isolate those who commit the worst crimes, those who chronically reoffend and those we determine cannot be rehabilitated.  For the rest, we must put our resources into behavior change through rehabilitation by treating the primary criminogenic problems and deficits that bring them into the justice system and keep them coming back. For example, drug courts that focus on accountability and behavioral change for individuals with drug and alcohol problems, and mental health courts that treat individuals with mental illness and provide proactive case management have been shown to be effective in addressing common criminogenic problems while keeping individuals out of prison. Sanction courts such as the HOPE court in Hawaii are innovative, effective means of enhancing compliance and facilitating behavior change for individuals on probation.

Today, we have the tools to cost-effectively reduce recidivism by 30 to 35 percent. Short of implementing those tools, we will continue to throw good money after bad and unnecessarily expose millions of citizens to criminal victimization.