Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Reforming Crime and Punishment Policies the Right Way
Jennifer E. Walsh
Over two decades ago, crime rates were at historic highs, so state lawmakers responded by promoting a range of “tough-on-crime” policies. Lengthy prison sentences and mandatory penalties for drug users, gun users, and repeat offenders delivered on the promise that “those who do the crime will receive more time.” The federal government followed suit, adopting mandatory sentences of its own and offering financial incentives to states that adopted “Truth-in-Sentencing” policies, requiring violent offenders to serve at least 85 percent of their prison sentences.
Although experts still disagree as to why, following these changes, crime rates did decrease – rapidly. Some credit aggressive “zero-tolerance” policing practices, such as those adopted in New York, while others argue that longer sentences effectively incapacitated career criminals and sent a strong message that crime does not pay. Still others believe that the drop was unrelated to policy changes, but, instead, linked to a demographic reduction in the number of crime-prone youth and young adults. Whatever the cause – and it is likely a combination of all these things -- voters associated tougher penalties with successful crime prevention strategies. Up until now, lawmakers on both sides of the political aisle have been reluctant to challenge the status quo.
The California Effect
However, the political climate has recently changed. Crime is at near-historic lows, and attention has shifted away from the imposition of tougher sentences to concern about record-high prison populations, incarceration costs, and the disproportionate impact of mass imprisonment borne by minority communities.
Much of this concern has been prompted by changing circumstances in California. A protracted court battle over impacted prison facilities led to a historic federal takeover of the state’s correctional system in 2005. The state was ordered to dramatically reduce its prison population by 2013 or federal courts would begin releasing inmates on its own.
This federal mandate forced California lawmakers and correction officials to quickly implement options that would reduce prison populations without compromising public safety. Prison realignment legislation enacted in 2011 kept sentence lengths the same, but moved all non-serious, non-violent, and non-registered sex offenders from state prisons to county jail facilities. They also expanded the conditions for house arrest, shifted supervision of parolees from the state to county level, and reduced the number of inmates returning to custody for parole violations by shortening the parole period from one year to 180 days. As a result of these changes, the prison population dropped by more than 40,000 inmates with no appreciable increase in crime.
The success of these measures prompted sponsors of a 2014 ballot measure, Prop 47, to explore additional fiscal savings for the state by seeking further reductions in state prison and county jail populations. The initiative, which passed by nearly 60 percent of the vote, effectively reduced the sentence lengths of non-violent crimes, such as shoplifting, petty theft, forgery, fraud, and possession of small amounts of drugs by changing them from felonies – punishable by one year or more – to misdemeanors, punishable by small fines or jail sentences less than six months. Supporters argued that this reclassification would help to keep the state’s prison population under the federal cap by incarcerating only dangerous offenders, and it would help solve overcrowding problems that had been shifted to county jails. The initiative also promised that fiscal savings from the reduced inmate population would be shifted back to communities to support drug treatment, mental health services, and other rehabilitation and delinquency prevention programs.
Criminal justice reformers have heralded these changes and have urged the state to do more. California Governor Jerry Brown has announced his intent to put before the voters in November 2016 a reversal of the determinate sentencing law he signed in 1977, which stripped courts and parole boards of much of their sentencing discretion. Brown called his earlier support for determinate sentencing “a mistake,” and in a press conference surrounded by experts and clergy, urged support for his ballot measure that would give judges and parole boards the ability to reduce inmate sentences if they complete prison-based rehabilitation and educational programs.
On the surface, many of these reforms seem to hold promise. Reducing prison sentences for non-violent offenders, relaxing parole conditions, and increasing incentives for inmates to participate in rehabilitation programs to correct their behavior all sound like good ways to address ongoing concerns about the collateral damage associated with mass incarceration.
However, reforms along these lines have been tried before, and they have failed.
Past Attempts at Reform
Removing real consequences for criminal behavior – a practice widely adopted during the indeterminate sentencing era in the 1960s and early 1970s – can send a message that crime does pay. California’s Prop 47, only a little more than a year old, is already showing this to be true. The voter-approved measure shortened sentences for shoplifting and petty theft of merchandise valued at $950 or less from a maximum of one year in jail to a maximum of six months in jail or a $1,000 fine, yet most offenders today are sent to jail for just a few days. It also removed the long-standing provision that a repeat thief could be charged with a felony. Now, each theft is treated the same, whether it is a first offense or the hundredth.
Governor Brown’s appeal to reintroduce discretion and incentives for rehabilitation programming is equally problematic. The law was changed nearly four decades ago because judges and parole boards used their discretion unevenly and capriciously, causing poor, minority defendants to suffer the most. This was not necessarily due to overt discrimination, but, in many cases, a consequence borne out of a desire to help. Researchers revealed that when judges were given the discretion to either return an offender back to the community on probation or send an offender to prison, poor and/or minority offenders were sentenced to prison more often. Officials perceived that these defendants could not afford rehabilitation programs on their own, so they would send them to prison so that they could complete educational, vocational, and treatment programs housed within the institution.
Additionally, researchers found that the widespread use of discretion undermined certainty about consequences for crime. Some offenders would receive probation or short sentences, and others would receive longer ones. After all, if judges are looking at the criminal sentence solely as an opportunity for rehabilitation, they might conclude that some offenders need more and others need less. Sentences were no longer linked to severity of the crime or harm done to the victim. Over time, this devalued the damaging effects of crime on individuals, families, and communities.
The Right Kind of Reform
Clearly, the current openness to reform provides us with a good opportunity to correct the excesses of the “get-tough” movement. But these changes should not aim to merely reverse existing policies, nor should they reintroduce problems from the past. For example, encouraging compassion for offenders in the system is admirable, but it cannot come at the expense of justice for victims. Moreover, reducing criminal penalties to the point where they become trivial, or overlooking the real harm that crime does to people and to communities, will only invite the next wave of reform to be more punitive.
The right kind of reform will instead reverse the trend of fashioning policies with only convenience or expediency in mind. Prison is a crude, blunt instrument that treats all offenses and all offenders the same. Currently, property offenders, drug offenders, and violent offenders almost always receive the same sentence: imprisonment. The only real differentiation is the location of the sentence (county jail or state prison), the security of the cell block (minimum or maximum security), and the length of stay (short or long).
Any meaningful and long-lasting criminal justice reform must move away from this prison-only paradigm and think creatively about how to encourage moral, law-abiding behavior and how to effectively address instances of moral failings that encourages long-term restoration of the offender.
Thankfully, Christians are in a position to do just that. They can help society reject the premise inherent in the medical model of crime that assumes that crime is like a disease and that people engage in criminal behavior because of poor social, economic, or political conditions. Instead, Christians can make the case that people are autonomous, free agents capable of making their own decisions regardless of the circumstances, and thus are responsible, legally and morally, for their actions. Indeed, the entire Christian message is based on the presupposition that all people everywhere can freely choose Christ and voluntarily order their lives in obedience to His commands. Because of this, believers understand that their decisions and actions can be beneficial or harmful and can affect those around us.
This perspective is necessary when we consider how best to address crime. Excusing criminal behavior undermines the agency of the individual and lessens the moral responsibility invested in our humanity. Our criminal justice system should have an element of accountability that asks offenders to take responsibility for their actions.
But, Christians should also be the first to acknowledge the role of mercy and grace when people go astray. Currently, many offenders face a lifetime of condemnation and hardship that begins with the first conviction. Our criminal justice system should consistently offer opportunities for first-time offenders who acknowledge wrongdoing to receive a lighter sentence, and it should offer offenders the opportunity to have their records expunged with successive years of good behavior. Rather than imposing a lifetime sentence of unemployment upon conviction of a first offense, we should also adopt sensible right-to-work laws for people who have acknowledged responsibility for their actions, paid their debt to society, and who are ready to contribute to our common good.
Christians also recognize the importance of communities in facilitating righteous living. After all, the Scriptures encourage believers to be in fellowship so that they can encourage one another to do good works. Christians can lobby for criminal justice reform that re-integrates voices from the community back into the system. In the past, jury trials provided members of the community with a “Matthew 18” opportunity to confront offenders. Now, jury trials are nearly obsolete and convictions are negotiated through a plea-bargaining process.
It need not stay that way. Reformers could find other ways to involve representatives of the community in the charging and conviction process. Moreover, community members should be involved in determining creative consequences that tailor the sentence to the actual harm done. Violent offenders should be incarcerated to protect the lives and well-being of others, but for most offenders, community-based sentences will do a much better job of restoring the harm done than imprisonment has done up to now.
Undoubtedly, meaningful criminal justice reform is going to take more time and effort than what lawmakers have exerted up to this point, and it will require citizens on both sides of the political aisle to press for change. We can no longer rely on a “fast-food” type of justice system that quickly dispenses prison sentences and assumes that victims will be protected, communities will be restored, and offenders made whole. Instead, now is the time to devise a system that recognizes the moral agency of the offender, protects the vulnerable, and advances the well-being of all.
Questions for Reflection:
- What are some plausible alternatives to prison that you might be able to suggest to lawmakers interested in sentencing reform?
- What are your ideas for involving the community in the charging, conviction, and sentencing process?
- How might your church or community organizations work with crime victims and offenders to bring about forgiveness and restoration?
Jennifer E. Walsh, Ph.D. is dean of the College of Liberal Arts and Sciences and a professor of political science at Azusa Pacific University.
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”