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.