We Need a Leaner, Smarter Justice System

prisonThe Washington Post this week drew attention to a new Pew poll indicating that a majority of Americans believe it’s time to move away from the policy of mandatory minimum sentencing in nonviolent criminal cases. Many people probably don’t realize that in the American legal system, judges aren’t actually permitted to do their jobs and judge. Their authority is curtailed by statutes that prescribe minimums for how much time a person must serve for certain crimes. This policy is particularly pernicious in situations where the crime is of a nonviolent nature, as are most minor drug offenses. The poll results represent a significant shift in public opinion since 2001, when the American public was about even split in their opinion of mandatory minimum sentencing. Like so much of our bloated federal apparatus, the prison system is flailing under the weight of an unfunded mandate. There are simply too many prisoners, and not enough resources to meet the demands of their incarceration.

When it comes to criminal sentencing, politicians and policymakers walk a tightrope. They don’t want to appear to be soft on crime, but at the same time they want to demonstrate a pragmatic, effective use of public resources. One recalls how George H. W. Bush bludgeoned Michael Dukakis in the 1988 Presidential campaign with the Willie Horton case, a lamentable miscarriage of justice that garnered national attention. In 1974, Horton fatally stabbed a gas station attendant and dumped his body in a trash can. Convicted of murder, Horton was sentenced to life imprisonment without parole and incarcerated in a Massachusetts prison. He was released in 1985 as part of a weekend furlough program but never returned, instead fleeing to Maryland where he raped a woman after brutally assaulting her boyfriend. He was later captured, tried, and sentenced in Maryland by a judge who refused to return him to Massachusetts stating, “I’m not prepared to take the chance that Mr. Horton might again be furloughed or otherwise released. This man should never draw a breath of free air again.”

Politicians across the country didn’t miss the lesson of that campaign, and ever since they have wanted to appear tough on crime. The reality, however, is that we simply can’t afford to lock up every criminal who runs afoul of the criminal justice system. In 2011 the Atlantic ran a piece on the skyrocket cost of incarceration in America. At that time, one year at Princeton cost $37,000, while a year at a New Jersey state prison cost $44,000. Clearly, this is an untenable situation. So, in an era of tight budgets, how should our government mete out justice effectively and efficiently? I offer four very simple, common sense solutions: Lock them up, Tie them down, Dry them out, and Make them pay.

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Lock Them Up.

Incarcerate violent, dangerous and repeat offenders. Violent criminals do not belong on our streets. Through their brutal and harmful actions, they have forfeited their right to live in a free society. They deserve to be locked up and they should be locked up to protect the public safety. Our law enforcement system should send a loud and clear message to violent criminals and would-be offenders everywhere: Commit a violent offense, forfeit your freedom. Engage in multiple repeat offenses, forfeit your freedom.

Tie Them Down.

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Prison is an extremely expensive resource, and these scarce resources should be used judiciously. They should not be squandered on non-violent, non-dangerous offenders. All too often, prison becomes a training ground for non-violent offenders, a gateway on to more serious kinds of crime. Instead of incarcerating these individuals alongside seasoned criminals, non-violent offenders could be discouraged from re-offending using alternative methods, such as electronic monitoring devices, half-way houses and other restrictive means.

Dry Them Out.

Much of our criminal activity is attributable to people who are drug-addicted and commit crimes to support their addiction. In order to stop such criminal behavior, we must deal with the root cause of the problem – addiction. It would be cheaper, and undoubtedly more effective, to provide drug addicts the resources to overcome their addiction and join the ranks of productive society than it is to throw them in jail, where their addiction is likely to persist and their habit of using crime to feed it likely to become entrenched. Address the addiction, and you are a long way down the road to overcoming the attendant criminal behavior.

Make Them Pay.

Non-violent offenders who steal or destroy private property should be required to provide restitution to their victims. If they are incarcerated, they can’t generate the means of repaying their victims. This might sound old-fashioned or simplistic, but it’s an honorable and time-tested way of addressing these kinds of crime. If a man takes another man’s property, he should be made to return it, and provide restitution for the harm done. He should have to look his victim in the eye and do what’s necessary to right the wrong done. Under our current system, victims of non-violent crime are left holding the bag, while the offender pays restitution to the State via incarceration. It’s expensive, and it doesn’t make any sense.

Bottom line: we need a sensible, pragmatic, and effective sentencing process. As with so many failed policies hanging around America’s neck like so many millstones, the current system is a result of politics being put ahead of practical wisdom. It is possible to be tough on crime, to protect the American people from the bad guys while using our limited resources wisely and effectively. All it takes is the political will to make a few simple changes. Here’s hoping the Pew poll is a forecast of things to come.


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Ken Connor is an attorney and co-author of "Sinful Silence: When Christians Neglect Their Civic Duty." He is also the Distinguished Fellow in Law and Human Dignity at the John Jay Institute's Center for a Just Society.
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  • http://www.americanclarion.com/ Bob Ellis

    I agree with the vast majority of this article, but there is one portion with which I disagree that I want to clarify.

    I don’t think minimum sentencing standards are the problem per se, and don’t think they should be abandoned. There are simply too many lawless, pro-criminal judges out there to completely do away with minimum sentencing requirements.

    But what could and should be done is that those minimum sentencing standards be revised to incorporate the kind of things Connor talked about in the bulk of the article.

    As a former cop, who has also done a little bit of corrections work, I know full well that some criminals refuse to be rehabilitated, and they will need to be incarcerated, probably long-term. There is no higher priority than protecting the lives, the welfare and the property of the citizenry.

    But restorative justice is best, and those who stole or damaged property could and should be made to make good the loss they caused. And a simple nonviolent drug user (not peddler), if they are willing to be detoxed and rehabilitated could go to “Drug Court” (I’ve seen the greatly improved rates of recidivism and lower costs, and support a well-administered Drug Court)-ultimately saving the taxpayer a lot of money and improving the quality of their lives. But if they refuse to be rehabilitated, they’ll have to be incarcerated, too.

    In summary, there is a LOT of room for improvement in our justice system, as well as cost-savings opportunities that still protect the public. But sadly, the pathetic quality of our judges dictates that we cannot turn these lawless scoundrels (the judges, I must clarify) loose to in turn loose harmful criminals on society.