The Justice Department’s upcoming release of some 6,000 nonviolent drug offenders is an unprecedented move that has been hailed by proponents of criminal justice reform. A top attorney for the American Civil Liberties Union called it “nothing short of thrilling.” The general counsel for Families Against Mandatory Minimums said it is a sign that the U.S. is “serious about rethinking our approach to crime and punishment.”
Hardly. With 2.2 million inmates nationwide, this release doesn’t make a dent in the country’s prison population. The U.S. incarceration rate is seven times higher than the median for the economically advanced nations of the OECD, so reforming it in a meaningful way requires more than a token gesture. It means changing how we use jails and prisons in sentencing and drastically reducing the prison population by not 1 or 5 percent, but 60 or 80 percent.
This is an achievable goal. There are several incarcerated populations for whom jail and prison is an unnecessary, even damaging, approach. Releasing some of them and using more productive and reasonable measures to rehabilitate others while protecting public safety is necessary to truly reform criminal justice in the U.S.
Perhaps one of the most obvious groups to release would be those who aren’t actually proven guilty. As of 2009, more than 20 percent of the incarcerated population in the U.S. was being held in pretrial detention. They hadn’t gone to trial or accepted a plea deal, and they either couldn’t afford bail or were remanded without bail. About one in five pretrial detainees are ultimately acquitted or have their cases dismissed.
In some cases, pretrial detention makes sense; if you’ve been charged with murder and are facing decades behind bars, you have a pretty good motive to flee. But three out of four pretrial detainees are charged with minor property crimes, drug offenses and other non-violent crimes. In most of those cases, they’re only incarcerated because they can’t afford bail. That creates a systemic bias against low-income defendants, since pretrial detention is associated with a higher chance of being found guilty and of being sentenced to time behind bars.
If ending pretrial bail is too dramatic, simply reforming the bail system – as some states have already done – can significantly reduce the incarcerated population. In Washington, D.C., for instance, only high-risk defendants are jailed pending trial. About 85 percent of arrestees are released without cash bail, either under supervision or with a citation to return to court. Of those released, 88 percent are not rearrested before trial. And of those who are picked up again, less than 1 percent are arrested for a violent crime.
Even among those who have been found guilty, we can make significant reductions to our prison population. According to Bureau of Justice Statistics data, 64 percent of jail inmates, 56 percent of state prisoners and 45 percent of federal prisoners have symptoms of serious mental illness. In other words, our justice system has effectively criminalized mental illness.
Prisons are not equipped to treat people with psychological disorders. An inmate may receive medication but not much else, an approach that fails to address underlying problems. Treating mental disorders as illnesses instead of crimes means putting people in inpatient or outpatient treatment programs instead of cells. Unfortunately, the nation has spent decades closing state mental health facilities without offering an alternative model of care. That trend must be reversed by establishing mental health programs and institutions that work.
Similarly, prison inherently is a bad environment for drug treatment. About 65 percent of inmates have drug addictions, but only 11 percent are treated, according to a 2010 report by Columbia University’s National Center on Addiction and Substance Abuse. Not only do prisons rarely treat addictions, they often make addiction worse.
In 2010, I was incarcerated for a drug crime committed while I was addicted to heroin. I was able to recover, but my story wasn’t common. Many of the women I saw come to prison with alcohol problems left with heroin habits. The recidivism statistics prove the extent of the problem: 76 percent of drug offenders are arrested for new crimes within five years of their release.
Ideally, we would simply decriminalize drug use. That’s an approach that’s been tried and tested in Portugal. Since making the change in 2001, the Iberian nation has saved money on drug enforcement and seen a decrease in drug use among young people, as well as HIV rates and drug-related deaths. But absent changes to our drug laws, sending addicts to treatment programs instead of prisons would do more to rehabilitate convicts and reduce crime.
Almost half of federal inmates are locked up for drug offenses, but federal prisoners account for less than 15 percent of all inmates. In state prisons, more than half of inmates are locked up for violent crimes. So to make significant reductions to our prison population, we need to reconsider how we sentence certain violent crimes as well.
This isn’t as risky a proposition as it sounds. Many “violent” offenders did not actually commit acts of violence. In some states, entering a garage to steal tools would be considered a violent crime. Under federal penal codes, having a gun in the house while doing a drug deal is considered a violent crime. In situations like these, community sanctions – restrictions on movement, supervised probation, mandatory treatment programs, fines and curfews, for example – could be better solutions than costly and damaging prison time.
Clearly, a convicted murderer should not be given a community sanction. But we should reexamine the prudence of lengthy sentences for violent crimes. As Fordham Law School Prof. John Pfaff recently wrote, long sentences for violent offenders can be counterproductive, given that they don’t really deter crime, and most offenders simply age out of criminal behavior by their 30s and 40s.
The common retort is that lawbreakers don’t deserve more lenient punishments. After all, they broke the law, so shouldn’t we just throw the book at them? But concepts of vengeance and punishment are not particularly productive, especially when our justice system is ultimately making matters worse – worsening addictions, exacerbating mental illness and turning minor offenders into repeat offenders.
With the nation spending $80 billion a year to keep citizens incarcerated, the cost of the alternatives – mental health hospitals, drug treatment programs, community sanctions – is no deterrent. Van Jones, president of #cut50, an initiative dedicated to reducing the incarcerated population by 50 percent in 10 years, suggests using that money to create a community safety superfund and allow organizations and institutions to develop alternatives that use the money. As Jones said in a phone interview, “What is an alternative to locking people up and brutalizing them forever? I mean, literally, throw a dart. Any number of words in the English language can come up with a better strategy than that.”
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