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.