A culture of punitive populism in the United States stemming from transformative historical events, combined with societal, judicial and political forces of the 1960s and 1970s, resulted in a series of sentencing and policy changes that fast-tracked heightened criminal justice sanctions and created, what can best be described as, the American addiction to incarceration we see today. This addiction has depleted American social capital for an entire class of citizenry and we, as a people, are now obligated to right this wrong; insisting that all criminal justice responses focus on an evidence-based approach, structured nationally to achieve purposeful goals, not just reacting to political pressure from voters and the political calculations of legislators.
Transformative, is an overly simple word when examining such differing events as Hiroshima, the McCarthy era, Vietnam, and Watergate, and yet exploring them to see their impact on the appreciating levels of punitiveness and distrust in the American culture is the objective. As President Truman spoke in his first presidential address in 1945, he conveyed to the American people the idea that domestic security was no longer something that could be taken for granted, “In this shrinking world, it is futile to seek safety behind geographical barriers. Real security will be found only in law and in justice.” (Golway, 2011, p.24) We had unleashed an uncontrollable force when we used the atom bomb and the threat of nuclear annihilation was a wake-up call to the world that being safe was a naïve concept. This was the beginning of the change, being programmed that there can be no retreat from an enemy, an enemy that could strike in your home; transforming an American fear of not being able to protect oneself to an American attitude that seeks out and punishes an ‘enemy’. This attitude would continue to be made-over, purposefully formed as other corrosive forces weighed upon the nation.
As distance grew between the U.S. and World War II, communism became the poster child for all that was wrong in the world and was advanced as the face of the enemy for America. “Two of the cardinal assumptions of the McCarthy era – that the Communist Party constituted a real and immediate threat to the nation’s security and that the way to meet this threat was through repression.” (Griffith 1971 p.33) This was not the first and would not be the last time that a branch of government reacted to a threat by unmitigated repression and that repression was augmented by competing political powers. “The self-styled Democratic liberals could think of no answer to their detractors except to outdo them in the sponsorship of repression.” (Griffith 1971 p.33) When the exaggeration of an internal communist threat in the United States was proven to the American people to have been over-blown for political reasons, the seeds of distrust in our government were planted. An abuse of power, through manipulation of fear, had been conveyed into the living room of the common citizen and in Hubert Humphrey’s words emphasizing the ambivalence of such a move, “…it is not necessary for me to defend any possible abuse of that amendment at a later date.” (Griffith 1971 p.34) As he speaks so casually about repressing an American political party, creating precedent that would outlaw unpopular political thought, and having no responsibility for what other consequences may arise from that resolution, the American people were sown with another seed in which distrust of government grows and a skewed notion of incapacitating an enemy would grow beside it.
The final sources of distrust that locked the American people into the inability to believe in government, which we still see today, were Vietnam and Watergate.
“There are numerous indications that the distrust of the government has increased beyond the 1970 level. In a system as stable as that in the U.S., however, it is difficult to conceive of the trend in trust continuing to decline at the same rate that it has from 1964 to 1970. A slowing in the rate of decline would certainly have been expected to accompany a settlement of the Vietnam conflict. Indeed, between 1970 and 1972, the decline in political trust was arrested; some segments of the population were even displaying increased trust in the government by the fall of 1972. The Watergate revelations, seemingly unending political scandals in the Nixon administration, continuing inflation, an energy crisis, and a near-collapse in the president’s credibility have, however, rendered short-lived any hopes for renewed trust in the near future.” (Miller 1974 p.751)
The near future mentioned that might have brought back trust in government, never occurred, and the combination of all of these forces created a culture of punitive populism. Government’s failed domestic policies as well as political and societal turmoil found by everyday Americans when they turned on their televisions, opened their morning paper, or in some areas, stepped out their front doors, churned up a storm of disillusionment. The American culture was affixed with a fear and distrust of our fellow man, and those in power, well into the 21st century.
The civil unrest that erupted in this country with the Civil Rights movement, the Anti-War movement, and prison rioting, accumulated into a seemingly uncontrollable disorder that had no remedy in sight from a government who’s citizen’s had lost faith. These maladies combined with the preexisting sense of failed trust, finalized the perception that the American government had lost, and could not regain control. Both political parties had been stained with mistrust and the proof of their ineffectiveness was on the street. Politically, ‘law and order’ and ‘tough on crime’ were the only problem-solving policies the American people, yearning to punish someone for all this chaos, could get behind.
“At a popular level, law and order resonated both as a social ideal and political slogan because it combined an understandable concern over the rising number of traditional crimes . . . with implicit and explicit unease about civil rights, civil liberties, urban riots, antiwar protests, moral values, and drug use. Part of the appeal of law and order rhetoric is the way in which it simplifies social disorder into a story about bad guys, good guys, and the need for firm moral leadership by government.” (Kennedy 2009 p.491)
The objective of simplifying the civil unrest story and bringing back the mantra of moral leadership by government was sidetracked by the Supreme Court’s focus away from crime control and toward due process in regards to the treatment of those committing the crimes. “The message seemed to be that random violence is everywhere and you are no longer safe—not in your suburban home, commuter train, or automobile—and the police and the courts cannot or will not help you.” (Kennedy 2009 p.492) Specifically, in Holt v. Sarver, the Supreme Court was viewed, not only as soft on crime but siding with the criminal element, threatening full-scale intervention into state-run corrections. “Holt is seminal in its approach to remedying violations of the constitutional rights of prison inmates. Although prior cases have considered the constitutionality of the treatment of a particular inmate or the operation of a specific practice, Holt is the first case in which an entire prison system faces possible abolition on constitutional grounds.” (Harvard Law Review, 1970 p.459)
In this case and subsequent cases, the Supreme Court declared that the eighth amendment had been violated, and although “…justices tend to make decisions on the basis of what they believe to be the most authentic understanding of “the law” and the appropriate mission or role of the Court, not on the basis of their personal policy preferences alone…” (Clayton, 1999 p.234) the Warren and Burger Courts had a new policy, a ‘hands on’ approach to corrections. Such judicial interference of the ‘law and order’ agenda is nicely outlined by the following Supreme Court case. “But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974). This ideological shift of the Supreme Court away from the previous ‘hands off’ approach, had little power of persuasion and ultimately added to the disconnection the American people felt with their government.
By 1970, the roots of punitive populism had taken hold and would soon begin to smother the previous reformative sentiments of the American people. American’s did not feel safe in their homes, their government could give them no relief, and the Federal Courts priorities suggested that criminals’ needs were being placed above their own. This made political actors desperate for a solution, a solution that could be sold to the people, and would look new and innovative. That solution came in the form of a new branch in sociology, criminology. Political actors took advantage of the research that criminologists were producing and sought out the magic bullet, the instrument of change. They found the 1974 Martinson Report and in it, the answer they sought. “…the death knell of rehabilitation was seemingly sounded by Robert Martinson’s influential “nothing works” essay, which reported that few treatment programs reduced recidivism. This review of evaluation studies gave legitimacy to the anti-treatment sentiments of the day; it ostensibly ‘proved’ what everyone ‘already knew’: Rehabilitation did not work.” (Cullen 2000 p.109)
To give a bit of history on the subject, beginning in 1820, the rehabilitative strategy produced 150 years of ‘American Exceptionalism’ in regards to our institution of the penitentiary. Flogging and capital punishment both disappeared and America took pride in its rehabilitative prisons, while other nations were embarrassed by their punitive prison systems. (Braithwaite p.1732) Since the turn of the 20th century, the rehabilitation philosophy guided criminal justice policy, which then shifted significantly in the 1970s to a punishment-oriented philosophy introduced as legitimate by political actors. (Schneider 2006 p.458) As the rhetoric grew to the point that action was taken, policy changed into sentencing that declared the unredeemable nature of the criminal element. “Thus, individuals are viewed as playing out their predetermined criminal careers completely insensitive to changes in the costs and benefits of criminal activity. In particular, the only mechanism by which prosecution and sentencing policies influence the crime rate is incapacitation.” (Cook 1985 p.205)
From that point forward, the majority of sentencing decisions moved from reformative to punitive, focusing on incarceration. The two cultural aspects of public support that would have been necessary for rehabilitation to remain policy were ‘‘a vibrant faith in the malleability of human beings’’ and ‘‘a workable consensus on the goals of treatment.’’ (Phelps 2011 p.37) The only workable consensus that could be mustered in this country by the 1980s was that crime could only be fought by incapacitating as much of the criminal element as possible. The mass media’s role in this consensus was the subjective method of reporting the news. “…intermediate punishments (punishments less severe than imprisonment, but more punishing than simple probation) are rarely reported in the news media. Hence, one cannot expect members of the public to consider them when thinking about what would be an appropriate sentence in a particular case. However, we have discovered that when these intermediate punishments are made salient, the desire to imprison diminishes significantly” sadly, American media has not prioritized informing the public of these intermediate punishments. (Roberts 1990 p.465-66) This punitive programming of the public by the media and competing political forces has resulted in the loss of “confidence in the malleability of human nature and the capacity of any government institutions to produce such changes.” (Phelps 2011 p.37)
War on crime was not new rhetoric or policy in the 1980s by any means, but our reaction to that rhetoric was the significant difference. “…Crime legislation of the 1920s and 1930s has a remarkable set of analogues in the 1980s and 1990s, and that includes everything from three-strike laws, mandatory minimum sentences, attacks on disparities in judicial sentencing, efforts to repeal the insanity defense, habitual sex offender laws, and the expansion of vagrancy laws to cover gangs.” (Nourse 2004 p.926) This ‘War on Crime’ history is part of our political institutions and culture, and yet a focus on mass-incarceration is a freshly developed method of dealing with crime. Nearly a hundred years ago the aforementioned sentencing structure was localized.
“The laws were dubbed a ‘legislative thunderbolt’. They had been so effective, recounted one criminologist, that murders resulting from robberies were down by over half and many criminals had simply left … for other states. Should the reference to leaving for other states seem odd, it is important to remember that, in that day and age, governors still issued ‘banishment paroles.’ Such a practice testifies to the ways in which life and crime were once perceived as far more local as they are today.” (Nourse 2004 p.930)
The conspiracy of forces dating back to the 1960s meant that by the 1980s there was no longer a place to banish the criminal element to except for prison.
The actuality of mass incarceration came to full fruition in the 1990s, made possible by policy changes and sentencing structure modifications that had been pressured simultaneously through decades of political rhetoric. During the 1968 presidential election campaign Nixon told voters, “Doubling the conviction rate in this country would do more to cure crime in America than quadrupling the funds for [Hubert] Humphrey’s war on poverty,” (Parenti 1999 p.8). Statements like this with no empirical data to reinforce it were legitimized by political leaders and the media alike. Correspondingly, the supposed empirical data offered soon thereafter was even used negligently for political reasons.
“Martinson did not actually say that treatment does not work; rather, he noted that no single treatment modality works in every single circumstance. Largely, Martinson was misquoted throughout the professional world. Since the time of that report, a number of studies have been conducted, and treatment success has been found to depend on the offender, the type of treatment used, and the person delivering the treatment.” (Hanser 2009 p.286)
The sentencing structure that came out of all this rhetoric catapulted the incarceration rate in America far-beyond historical norms and into a realm unheard of in a democratic nation. “Despite the fact that prison populations are growing worldwide, the United States outpaces every other nation, exceeding incarceration levels of other democratic nations by five to seven times. Only two other nations have incarceration rates greater than 600 per 100,000: Russia (629) and Rwanda (604).” (Shannon 2012 p.215) “From the mid-1920s to the early 1970s, the incarceration rate in the United States was remarkably stable, averaging 110 state and federal prisoners per 100,000 people. While the U.S. rate tended to be higher, it did not radically exceed the incarceration rates of other advanced industrialized countries.” (Gottschalk 2002 p.197)
For the first seventy years of which data has been gathered, the industrialized nations had relative agreement about who should be incarcerated and for approximately how long. When punitive populism became a valid reality in the United States, the non-violent offenders were subjected to the same harshness that the violent offenders had experienced and “Changing prison policies such as guidelines, mandatory minimum prison terms, and restrictions on parole release, played a major part in the rising prison populations.” (MacKenzie 2003 p.312)
“Most of the growth in America’s prisons since 1978 is accounted for by nonviolent offenders and 1998 was the first year in which America’s prisons and jails incarcerated more than one million nonviolent offenders.” (Irwin 2000 p.135) The harshest criminal justice sanction that came out of these prison policy changes was the ‘three strikes’ initiative.
“Three strikes was described by its proponents as targeting the most violent career criminals and gained public favor in the wake of such heinous crimes as the Polly Klaas murder. However, an ever-increasing number of “three strikes” prosecutions are for crimes as menial as petty theft of a can of beer or a few packs of batteries. This misdirected use of the law has led original crusader Mark Klaas to conclude that in its current manifestation, the “three strikes” laws are not working. In the depth of despair, which all Californians shared with my family immediately following Polly’s murder, we blindly supported the [Reynolds] initiative in the mistaken belief that it dealt only with violent crimes. Instead, three of the four crimes it addresses are not violent.” (King 2001 p.9)
The sanction that incapacitates the most nonviolent offenders is our punitive drug policy. “The overwhelming increase in the numbers of imprisoned people is primarily due to the incarceration of drug offenders and people convicted of non-violent crimes: while the number of incarcerated violent offenders almost doubled between 1980 and 1998, the number of nonviolent offenders tripled and the number of drug offenders increased 1040%.” (Stevenson 2011 p.9) The U.S. Sentencing Commission study of mandatory penalties released in 1992 brought to light another sanction with unintentional consequences. “…mandatory minimum sentencing laws unwarrantedly shift discretion from judges to prosecutors, result in higher trial rates and lengthened case processing times, arbitrarily fail to acknowledge salient differences between cases, and often punish minor offenders much more harshly than anyone involved believes is warranted.” (Tonry 1992 p.253) Chief Justice Rehnquist once rejected an argument by professing, “…the presence or absence of violence has nothing to do with society’s interest in deterring crime. (Calvi 2004 p.194)
In order to understand the federal forces behind this specific layer of punitiveness, the original intention of the Model Penal Code and the Sentencing Reform Act of 1984 that changed that intention must be examined. “The original Model Penal Code, adopted by the American Law Institute in 1962, disdained retribution and instead said that the purposes of sentencing were utilitarian: What sentences would “prevent the commission of offenses” and “promote the correction and rehabilitation of offenders?” Reflecting the changed sentencing emphasis, the new Model Penal Code focuses on desert as the primary goal of sentencing. The offender’s blameworthiness takes center stage even if rehabilitation, general deterrence, and incapacitation are also considered.” (Gwin 2010 p.179)
Reading the new wording and intent of the penal code it is easy to hear the very voice of punitive populism echoing in its phrasing. Furthermore, the Sentencing Reform Act itself created the punitive sentencing the American people believed they wanted in theory, but on paper, it was very different. “In enacting the Sentencing Reform Act, Congress most wanted to reduce sentencing disparities and achieve honesty in sentencing. With the Act, Congress ended parole and its accompanying focus on rehabilitation, and directed that rehabilitation should not control sentencing. Driven by separate concerns that federal sentencing was not transparent, was too lenient, and was too disparate, the Sentencing Reform Act fathered the Federal Sentencing Guidelines.” (Gwin 2010 p.181)
Approaching the Federal Sentencing Guidelines with a hope of immediate understanding would be a mistake. “The Guidelines make sentence determinations principally dependent upon the nature and circumstances of the offense, the seriousness of the offense, and the need to provide just punishment—all retributive considerations.” (Gwin 2010 p.181) This sounds all well and good, maybe even fair, and yet the specifics of the guidelines are where the calculations begin to heap on punishment and confusion. “After determining a base offense level, the federal sentencing court calculates the defendant’s criminal history category. In contrast to the offense level calculation, the criminal history category calculation accommodates the goals of individual deterrence and incapacitation. These two calculations, offense level, and criminal history, combine to set the Guidelines range.” (Gwin 2010 pp.180-181)
Without attempting to go any further into this maze of calculating offense level and criminal history in determining sentencing, focus here for a moment on two examples. “The recommended sentencing range only doubles for a defendant who has had four prior sentences of imprisonment that each exceeded 13 months. In contrast, the recommended sentence for mail fraud, for example, doubles when the fraud loss was more than $70,000, instead of $10,000.” (Gwin 2010 pp.181) When a legislative body adds the word ‘doubles’ into an incarceration sentence of a citizen it has never met, for an account of a citizen it has never heard, an injustice has occurred. The consequences of the Sentencing Reform Act, the Three-Strike Laws along with retribution-focused sanctions enacted without regard to first-hand data, have resulted in the depletion of social capital for an entire class of American citizens. “Social capital has been defined as the features of social organization, such as civic participation, norms of reciprocity, and trust in others that facilitate cooperation for mutual benefit.” (Kawachi 1997 p.1491) The depletion of social capital will be explored in more detail after the definition of the class afflicted by this circumstance is made clear.
The class mentioned above will be defined in this paper with economic and socio-behavioral terms in the words of Robert J. Oxoby. “Poverty, while typically defined in economic terms, is accompanied by a myriad of social behaviors. Crime, welfare dependency, and substance abuse, behaviors considered characteristic of the underclass, are often concentrated among those living in poverty. Economic approaches to poverty have typically focused on the economic status of individuals and looked towards redistributive policies that raise income and provide opportunities to those living in poverty… This paper takes a different approach to the behavior of the underclass by focusing on individuals’ innate desire for non-pecuniary social rewards and the process of psychological adaptation that may accompany living in poverty.” (Oxoby 2004 p.727)
Thus, the underclass, defined as those living in poverty, with criminal or deviant behaviors, dependent upon government assistance, having substance abuse issues, and abandoning mainstream norms for non-monetary returns, has found itself as a whole, reflecting the characteristics of the imprisoned population. As Loïc Wacquant states from his piece in Punishment and Society, using terms such as hyper ghetto to relate to a sub-category of the underclass, the majority of individuals who are incarcerated have similar education and economic backgrounds as those found in the underclass.
In 1991, fully 36 of the half-million people housed by U.S. jails were jobless at the time of their arrest and another 15 worked only part-time or irregularly. One-half had not finished high school and two thirds earned less than a thousand dollars a month; in addition, half the inmates were raised in homes receiving welfare and only 16 were married. Residents of the hyperghetto and clients of the prison system thus present similar profiles in economic marginality and social disintegration. (Wacquant 2000 p.105)
This 1991 snapshot brings a picture of social disintegration found in the prison system may be expected due to the criminality of those residing there but these statistics also shed light on the lower class in which the majority of these individuals originate. Being able to profile the underclass and the incarcerated similarly, begs a correlation to be made for a causal relationship between mass incarceration and the underclass.
The impact of mass incarceration is found negatively influencing a wide swath of the lower class in the long-term. The vulnerable members of the lower class consist of children whose parents are incarcerated, the families who are stigmatized by incarceration, the former inmates who become unemployable or under-employable or who suffer the criminogenic effect of incarceration, and the lower class communities that are cumulatively depleted due to mass incarceration. Evidence from the Fragile Families and Child Wellbeing Study demonstrates “…the consequences of mass imprisonment and the causes of children’s behavioral problems by considering the effects of paternal incarceration on children’s physical aggression at age 5 using data from the Fragile Families and Child Wellbeing Study. Results suggest that paternal incarceration is associated with increased physical aggression for boys, and that effects are concentrated among boys whose fathers were neither incarcerated for a violent offense nor abusive to the boys’ mother. Results also suggest that paternal incarceration may decrease girls’ physical aggression, although this finding is not robust. Taken together, results imply that mass imprisonment may contribute to a system of stratification in which crime and incarceration are passed down from fathers to sons (but not daughters).” (Wildeman 2010 p.285)
Aggressiveness or the lack thereof in children is directly related to paternal incarceration but also the absence of the parent alone has adverse effects. “The social control of children by parents is an important source of social capital that persists in its influence throughout the life course… the imprisonment of a parent represents one kind of event that can combine with other adverse life experiences in influencing longer-term life outcomes.” (Hagan 1999 pp.126-7) To give just one more of the numerous examples of deleterious effects on children from paternal incarceration the focus falls on the choice to mass incarcerate nonviolent offenders versus sentencing parole, which is termed reacceptance and reabsorption. “In the absence of efforts to encourage reacceptance and reabsorption, the stigma of imprisonment risks not only making parents into outlaws, but their children as well.” (Hagan 1999 p.126) The Criminal Justice system is creating generations of ‘prisonized’ children. “Parents in prison are likely to divorce or separate, and through the contagious effects of the institution, their children are in some degree prisonized, exposed to the routines of prison life through visitation and the parole supervision of their parents.” (Western 2010 p.16)
Shifting to a broader focus, the effects on the family of the incarcerated as a whole is also substantial. A study was conducted to explore the implications of criminal sanction policies on the families of felony offenders, according to this study,
“56 Caregivers visiting an incarcerated family member during children’s visiting hours were interviewed; the average participant visiting the jail was 30 years old and had about three children from more than one union. More than half (53.5%) of the participants in our study were on public assistance, 72% of whom began receiving benefits during their family member’s incarceration. Forty-five of the participants also indicated they were receiving other financial help. Fully two thirds of family members reported they were financially much worse off or somewhat worse off since the incarceration.” (Arditti 2004 p.199)
The study mentions the lack of child support, further emphasizing that, “families were at risk economically before incarceration, and the most vulnerable became even more financially strained afterward.” (Arditti 2004 p.195)
Moving broader still, a community’s well-being, if not survival, is determined by the incarceration rate at which their young men are incapacitated. “…incarceration rates are highest for those in their twenties and early thirties. These are key years in the life course, when most men are establishing a pathway through adulthood by leaving school, getting a job, and starting a family. These years of early adulthood are important not just for a man’s life trajectory, but also for the family and children that he helps support.” (Western 2010 p.9) Taking away these key life course components further damages the community as the former inmate re-enters society. “Analysis of the National Longitudinal Survey of Youth showed that serving time in prison was associated with a 40 reduction in earnings, reduced job tenure, reduced hourly wages, and higher unemployment.” (Western 2010 p.13)
The mass incarceration policy in America is a leading force that relegates lower class communities to underclass status due to the loss of upward mobility of their children, the fracturing of the delicate foundations of their families, the disappearance of their young men from the labor force, and the destruction of their marginal financial strength. These communities become stigmatized neighborhoods, ghettos if you will, no matter the racial makeup. The following is a very specific example of the social transformation of a lower-class neighborhood to an underclass neighborhood in Chicago. “The exodus of the black working and middle classes from ghetto neighborhoods compounds the problem by undermining the social, religious, and neighborhood institutions that might integrate the most disadvantaged into stable, community networks.” (Wilson 2012 p.143) As the foundation erodes away from these fragile neighborhoods, social capital depletes along with each individual’s chance of escaping the pull toward the underclass. “Social capital is thus a community-level (“ecologic”) variable whose counterpart at the individual level is measured by a person’s social networks.” (Kawachi 1997 p.1491) In order to turn the tide of expansion for the underclass, the addiction to mass incarceration must be addressed.
The argument has been made against mass incarceration and there are a myriad of non-incapacitation options available to non-violent offenders in which policy can concentrate. In the past, a policy of poor, urban revitalization was attempted many times by importing industrial jobs from other areas. The jobs could not be sustained by their lower class employees and the companies eventually left the neighborhood. This was due to the relative poor health, lack of education and the ability to be sufficiently productive that comes from the conditions of poverty. “Those living with low incomes may find it difficult to maintain consistent work schedules or present reliable work habits.” (Oxoby 2004 p.738) Thus, a policy of trying to fix the problems that mass incarceration leaves by pumping jobs into underclass neighborhoods failed on multiple occasions and is not a sufficient response.
Another policy that has met with at least some success has been the creation of alternative courts.
“Since the opening of the first drug court in 1995, we have created mental health courts to link mentally ill offenders to community-based treatment instead of incarceration. We have created juvenile drug courts to give young people arrested for drug-related crimes the structure and support they need to get on the right track. And we have created family treatment courts to help substance-abusing parents charged with neglect in Family Court.” (Kaye 2004 p.137)
Addressing individual non-violent cases with treatment and rehabilitation versus incarceration has made a believer of many, including this former drug court judge. “Frequently I hear, “I wasn’t just arrested, I was saved.” Grown men report that for the first time in their lives they are able to have an apartment, a credit card. I heard a graduate in New York City say, “My head was bowed when I was brought before you in handcuffs, Judge, but today my head is high. I’m looking you right in the eye.” (Kaye 2004 p.138)
With such uplifting examples, there are also cases right beside them where there was not enough court work-group assistance.
“A woman was bludgeoned to death by her husband of four years, who then jumped to his death from a nearby bridge. The wife, an educated, articulate woman, had appeared in Family Court weeks earlier. With no lawyer or victim advocate to assist her, she stood before the judge, asked for an order of protection, and received precisely what she requested: an order that allowed the husband to remain in the house but prohibited him from harassing her or removing their child. Her death was headline news, and the media heaped blame on the judge for permitting the husband to stay in the home. I wondered what more might have been done.” (Kaye 2004 p.140) This judge performed his duty to the letter of the law and gave this victim the exact arrangement she requested, however uninformed or misguided that request had been.
The criminal justice system must be restructured to respond in a reformative manner to the demands of the public, while requiring the courtroom workgroup to guarantee each defendant access to a full workable knowledge of his or her rights, responsibilities and legal options case by case. Moreover, as these two steps deal with today and not tomorrow, sustainable practices must be adopted by the criminal justice system, acting as a steward to hold each level accountable and focused on certain universal goals that will be judged as a revered legal legacy of the United States for generations to come. The framework of this pursuit of justice can be expressed as “…a process involving the exploration of two concerns democracy and mutuality in the current time frame and two others, sustainability and legacy in the future time frame.” (Lewis 2006 p.694)
A good example, outside of the Criminal Justice System, of the institutional structure hinted to above is the Federal Reserve System. The Federal Reserve Act of 1914 was created by Congress to deal with ongoing financial crises and to bring a structure to the system that would maximize financial stability. (Bernanke 2012 p.11-13) The system developed from this Act was based on a mission statement that gave very clear objectives and organizing structure to monetary policy.
“The Board of Governors of the Federal Reserve System and the Federal Open Market Committee shall maintain long run growth of the monetary and credit aggregates commensurate with the economy’s long run potential to increase production, so as to promote effectively the goals of maximum employment, stable prices, and moderate long-term interest rates.” (FRB 2000)
Not focusing on the specifics, one can see that repeated economic crises in this country forced a nation to create a financial bureaucracy with three goals, maximum employment, stable prices, and moderate long-term interest rates; the mass incarceration crisis of the past thirty years should be cause enough for us to replicate this process. The Department of Justice must form a Board of Governors that has supervisory power over a select committee, created by an act of Congress, which maintains three specific objectives. These objectives, a national incarceration rate in the federal court system near the prior stable rate of 100 per 100,000 U.S. residents, a historically low recidivism rate, well below the current stable holding of 40%, (Pew Center 2011 p.2) and a focused return to prevention, rehabilitation, and treatment which will reverse the current depletion of social capital caused by mass-incarceration.
As stated earlier, “From the mid-1920s to the early 1970s, the incarceration rate in the United States was remarkably stable, averaging 110 state and federal prisoners per 100,000 people.” (Gottschalk 2002 p.197) The statistical data that has been quite elusive nationally and state by state is the recidivism rate. From the article, Making it Count: What Policymakers Everywhere Can Learn from Vermont’s Experience Improving How They Tracked Recidivism, this statistical problem has been as confusing as it has been elusive.
“DOC (Department of Corrections) reported multiple recidivism measures. Sometimes the department reported the rate of reconviction (52 ), and other times it reported the rate of “relodging” (66 ). These figures, along with hundreds of other statistics, were provided in DOC’s annual report, a 300-plus-page document. “The fact that DOC reported multiple rates caused a lot of confusion for legislators,” said Senator Richard Sears (D-Bennington District), who chairs the Senate Judiciary Committee and the Joint Legislative Corrections Oversight Committee. “The problem wasn’t that they didn’t present enough statistics, but rather the opposite: they gave us too much data and we didn’t know what to pull out and focus on.” (Schwarzfeld 2012)
The Bureau of Justice reported in 2002 “Among nearly 300,000 prisoners released in 15 States in 1994, 67.5% were rearrested within 3 years. A study of 1983 releases estimated 62.5%.” (Langan 2002) The recidivism range accounted for so far has been between 52% and 67.5% and yet a Pew Center on the States study released in April of 2011 asserts, “…recidivism rates between 1994 and 2007 have consistently remained around 40%.” (Pew Center 2011 pp.1-2) Legislative Acts have been passed and procedures have been implemented to wrestle with these numbers; one example of a bureaucracy that has been created recently is the JRI. “The Justice Reinvestment Initiative (JRI) initiated by Congress in 2010 to address recidivism and is administered by the Bureau of Justice Assistance (BJA) in the Office of Justice Programs – U.S. Department of Justice, in coordination with justice reinvestment and related efforts supported by independent organizations such as the Pew Center on the States. The purpose of JRI is to provide technical assistance and competitive financial support to states, counties, cities, and tribal authorities that are either, currently engaged in justice reinvestment or are well positioned to undertake such work as either a Phase I or Phase II site.” (BJA 2010)
The JRI’s goals are to ‘reduce spending on corrections and increase public safety’ and ‘reinvest in strategies that can decrease crime and strengthen neighborhoods’, these goals are only pressured to be met through grant competition in states that want to participate. (BJA 2010) The option of participation, and the monetary incentives to improve, does not reach the most vulnerable populations to produce the necessary changes nationwide. This critical view of the Department of Justice’s bureaucracy is overly simplified, and yet, establishing a stricter vision that places specific benchmarks on the federal system that would have to be met by non-incapacitation measures must become the heart of the conversation for improvement. When federal policy and funding are refocused on data-driven numbers, in a rehabilitation and prevention capacity, following the above mentioned benchmarks of incarceration rates, recidivism numbers and prevention-treatment-rehabilitation options available, this success will be passed down to the state and local levels through the process created that can be imitated as the states see fit.
As was proved over time by the Martinson Report, no one-way of accomplishing a task can be successful across such a wide range of populations and jurisdictions, but a reinvestment-in-justice’s time has come. “Justice Reinvestment does not entail the following of a prescribed set of steps after which one can declare victory and move on. To the contrary, this model will only be successful if it is approached with an eye towards achieving a tangible and meaningful shift in the way local criminal justice planners make decisions about resource allocation.” (LaVigne 2012 p.51) At the federal level, the courtroom workgroup will have to meet these benchmarks, requiring programs to be established, data to be collected to eliminate unsuccessful processes and build up those that are successful; never again, abusing the powers of incapacitation to banish so many ‘enemies’ of the state.
Eliminating the effects of mass-incarceration from the Criminal Justice System and renewing the commitment to prevention, rehabilitation, and treatment will bring back the promise of due process of law to the Criminal Justice System. The Congress and the Department of Justice acting as one to accomplish such lofty goals would soften the culture of punitive populism and begin the expansion of social capital so desperately needed in our lower classes. Our Federal Government displaying trust in its people, a belief of the redeemable quality of each wayward citizen, could nearly eliminate the cry for ‘tough on crime’ and ‘law and order’ policies. The truly unredeemable would still be banished appropriately and those statistics would be pumped into the media and other outlets regularly and aggressively through this new data-driven bureaucracy. Courtroom workgroups would be rendered powerless to incarcerate the wide swath of non-violent offenders that have been incapacitated over the last thirty years.
This national structure with purposeful goals will keep more than a million men at their jobs, supporting their families, raising their children, paying restitution for their non-violent crimes, on parole, in treatment, serving their community. This may sound utopian, but this entire process of mass-incarceration began with political speech, rhetoric not based on fact, and manipulation of fear of an enemy. Political rhetoric must be formed for accomplishing goals for the greater good, simplifying objectives that could be understood completely and displayed transparently for the American people. As the Federal Reserve System acts to keep inflation steady, prices stable while maximizing employment, so must the Federal Criminal System act to keep mass incarceration minimal, recidivism low, and prevention, rehabilitation, and treatment for non-violent offenders above all other forms of sanction.
This paper focuses so deliberately on prevention, rehabilitation, and treatment of non-violent offenders because our government and society as a whole are misaligned with the proper treatment of the impoverished. “Attention must be paid not only to direct mechanisms to reduce poverty (i.e. wages or wealth), but also to indirect mechanisms (social and psychological issues) that change the way individuals view their social positions.” (Oxoby 2004 p.747) According to the Declaration of Independence, “…to adopt such a government as should, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and of America in general.” America in general includes the underclass, lower class, impoverished, drug addicted, mentally ill, and those who deviate from social norms.
Ending our addiction to mass-incarceration will be the first step to establishing the happiness and safety of all American constituents, for, as those with enough believe they have become safer through the incapacitation of millions of non-violent offenders, those with little to nothing can stand resolute with their distrust in government. “Chief Justice Kathleen Blatz, speaking about Minnesota’s busy trial courts ‘…one of my colleagues on the bench said: You know, I feel like I work for McJustice: we sure aren’t good for you, but we are fast.’” (Kaye 2004 p.148) The time is right to eliminate criminal justice responses and political bureaucracies created to pacify the masses and reconstruct the Criminal Justice System to “have the effect of shifting responsibility for sensitive decisions from politicians to relatively apolitical bodies, a form of political pressure deflection that policy makers find attractive.” (Tompson 2009 p.57) Combining a safe harbor for political leaders while implementing real reform based on empirical data is the foundation of “…a process involving the exploration of two concerns democracy and mutuality in the current time frame and two others, sustainability and legacy in the future time frame.” (Lewis 2006 p.694) The Criminal Justice System’s legacy of the 21st century must be one where politics walks a step behind data, where prevention-treatment-rehabilitation options are supreme and where recidivism and incarceration rates are amongst the lowest in the free world.
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