On Tuesday, the U.S. Senate voted 87-12 to pass the First Step Act. If enacted, the legislation would provide some reform of prisons and sentencing at the federal level. The most significant changes would be the implementation of incentives for prisoners to engage in “evidence-based recidivism reduction programs” and increased judicial discretion in sentencing. The bill now goes to the House for a vote, where it is expected to pass, and President Donald Trump said he would sign it into law. The political demand for criminal justice reform are remarkable for its time in that is nearly uniformly supported, at least in theory. In this three-part blog series I will outline the impetus for criminal justice reform and the variety of reforms that could include, consider what we know about the effectiveness of criminal justice policy based on sound economics, and finally consider the particular reforms contained in the largely bipartisan-supported First Step Act.
The United States is an international outlier when it comes to incarceration. According to the London-based Institute for Criminal Policy Research,the incarceration rate in the United State is 655 incarcerated individuals per 100,000 residents, the highest in the world. That is more than one-and-a-half times the rate of incarceration in Russia and over five times the rate in China. The country from which we inherited much of our legal understanding, England, when combined with Wales incarcerates relatively few: 140 people for every 100,000 population.
For more than three decades, the incarceration rate in the United States had been increasing. Despite more recent declines (and the boon of contemporaneously decreasing crime rates), efforts toward criminal justice reform remain politically popular. Concerns about the portion of the population incarcerated as well as racial and socioeconomic disparities in criminal convictions and sentencing have kept reforms at the forefront and provided largely bipartisan appeal.
Crime and incarceration both are costly for society. Most noticeably, criminal activity and punishment burden public budgets and many crimes have victims whose costs must be fully accounted for. Punishment, especially incarceration, is also costly to offenders – to some degree as intended – but can impose costs beyond the term of a sentence. Incarceration can reduce an individual’s attachment to family and community as well as diminish his skills and attachment to labor market options. All of these consequences make for less flourishing for the former offender and, other things held constant, a higher probability of re-offense, or recidivism. Citizens who care about public safety should be concerned about the ways that criminal justice can in fact increase recidivism and how criminal sentences, properly applied, might be used to reduce re-offense.
One extreme method for reducing recidivism is to keep offenders incarcerated for life, reducing crime by what criminologists call incapacitation. This approach is obviously costly (to public budgets, family well-being, and labor market productivity) and, if universally applied, unjust as it is not warranted in most cases. In reality, 90 percent of those currently incarcerated in the U.S. will someday be released and re-enter our neighborhoods and hopefully, if we care about flourishing, our workplaces and churches. Note that the costs to society, to a former offender’s family, and himself (well over 90 percent of criminal offenders are men) will be that much more if reentry and reintegration go poorly. Economic theory (to be addressed in the next installment of this blog series, “Criminal Justice Reform: What Does Economics Have to Say?”) makes clear the role of family, community, and employment in recidivism prevention.
How long an offender remains incarcerated and his experience in prison also influence recidivism risk. Sentencing and prison reform are two dimensions of criminal justice reform that reflect this understanding. In particular, the longer a criminal sentence, the greater the detachment from family, community, and work, the greater the opportunity for picking up skills that make one a more likely to attempt or succeed at committing a crime. Alternatively, if a sentence encourages high quality recidivism prevention programs, behavioral or substance abuse rehabilitation, or job training it can reduce criminal activity upon release. Taken all together, it is not clear that longer sentences will uniformly reduce crime, an observation borne out in empirical economic research. This is just one complexity of effective criminal justice, the awareness of which has shifted the pressures on elected officials from demonstrating one’s tough-on-crime chops to a bipartisan call for what advocates of “smart justice”are demanding.
Another observation driving some of the smart justice discussion is that almost half of federal inmates are incarcerated for a drug offense. This has motivated public debate surrounding the criminalization of drugs and sentencing related to non-violent drug offenses. Some would consider these non-violent offenses to be victimless crimes. Another argument is that drug offenses, particularly personal possession or consumption, might not be remedied by incarceration but rather rehabilitation outside of the criminal justice system. In general, the smart justice movement has placed a particular interest in non-violent offenders, though the First Step Act does provide incentives for violent offenders, too, to engage in recidivism reduction programs.
Criminal justice reform isn’t just about conviction and sentencing, though. The criminal justice system has an impact even before a crime is committed by policing that can deter or prevent crime. If a crime is committed, the pipeline of justice proceeds through crime reporting, criminal investigation, prosecution and criminal trial, the court’s decision, sentencing and then the corrections system including prison or jail, parole, probation and other punishment.
Criminal justice reforms have been suggested for all these stages of the legal process, though the reforms most often associated with the idea tend to be prison reform and sentencing reform, both of which are addressed in the First Step Act (and the third post in this series.) For now, I will conclude with two aspects of reform that are perhaps less well-known, but no less relevant to the outcomes of criminal justice or a concern for human flourishing.
Perhaps the earliest decision in the criminal justice process is to define what activities are criminal. Supporters of drug legalization often decry the “overcriminalization” of a “victimless crime.” While this is controversial, there are other behaviors, far less risky or costly to society that are or have been defined as criminal. Watching a neighbor’s child before school, selling bread out of a home kitchen, or allowing your car to warm up in the driveway during the winter can, in some situations, lead to criminal charges. This type of overcriminalization means that some crimes can be a surprise to the offender, such that the sheer number of laws on the books can be a justice issue. If the scope of criminal activity is too vast or commonplace for an individual to be aware of, then laws can be broken without any criminal intent, which traditionally has been a necessary element of establishing an act as criminal. Reforms targeted at overcriminalization, then, aim to change the legal treatment of particular activities (like warming up a cold car) and/or reduce the overall number of acts deemed illegal.
Finally, though outside the purview of the criminal justice system, the post-corrections experiences of former offenders are now often considered part of our collective criminal justice approach. Advocates for former offenders and would-be reformers state a number of related concerns. Some result from government-imposed barriers faced by former offenders including legal restrictions on employment, housing, student loans, and voting. Other challenges facing former offenders are found in the responses of potential employers, landlords, neighbors, etc. or in the inherently difficult transition of reentry for former offenders themselves. Though not government-imposed, some reformers would call for more government intervention to correct even these “social failures.”
Still others would see these difficulties as best remedied within local communities, the Church, and other civic organizations. For example, current programs that serve former offenders directly include nonprofit employment and training services, funding for the removal of visible tattoos, and initiatives within private businesses to hire and mentor former offenders have been found effective in many cases. Also needed, though, are the kind of conversations the United States and many faith-based organizations are having now around criminal justice. Perhaps most fundamental is how citizens and neighbors should think about the incarcerated or former offender. The Church, in particular, can make a priceless contribution in recognizing the universal, inherent dignity of the human person and putting these traditional principles into practice.
Home page photo: Modern chain gang. Wiki commons/public domain