Get caught stealing a lamb in 18th century England and you wound up dancing in the air at the end of a rope. Recidivism was not a problem. But the "hang 'em high" approach did not work all that well due to corruption and soft-hearted juries.
If we give up the idea of executing all convicted criminals, what should we do with them? Transporting them to Australia was another British solution, but that probably isn't an option today. Rejecting other old England ideas such as branding and the pillory, the principal solution of choice today in the US is, of course, the prison. But, since it would be far too expensive to imprison all convicts for life, nearly all of them have to be released at some point.
Unfortunately, rather than deter people from committing crimes, our system seems to have the reverse effect, as a lot of inmates are brutalized by their prison experience and come out worse than when they went in. The overall effect is to train and motivate criminals. Most of those released wind up back inside within a few years. The cost of this failure to all of us is enormous, both in human and in monetary terms [1]. Before considering possible solutions, let's take a look at what exists today.
Those who use illicit drugs or who peddle them in small quantities constitute a majority of federal prisoners and about a fifth of those in state and local prisons [2]. About half of all state prisoners are there for violent crimes ranging from assault to murder. Roughly 20% are there for property offenses such as burglary or forgery, about 7.5% for public-order offenses such as prostitution, pornography, or gambling.
Most prisoners are recruited from among the poor. The worst of them have killed or severely injured one or a few people, Many have stolen goods or money amounting to thousands of dollars, But those wealthy enough to afford high power attorneys seldom are jailed, regardless of what they do. Purdue Pharma executives, convicted of falsely marketing the prescription painkiller OxyContin as being non-addictive, were fined, sentenced to four months of community service and put on probation. A former coal miner, caught with two OxyContin pills and 2.4 grams of cocaine, is serving a 15-year prison sentence [3]. A Bristol-Myers Squibb executive convicted of perjury in connection with a price-fixing scheme was fined $5000, sentenced to two years probation, and ordered to—brace yourself—write a book! [4].
Inmates are often assaulted by both prison guards and by other prisoners. Many violent inmates belong to prison gangs, who exercise considerable control over life within the walls. Prison authorities often find it convenient to tolerate gangs.
A substantial number of convicts are uneducated to the point of illiteracy. Many suffer from mental or physical illnesses that directly or indirectly got them into trouble. These factors add substantially to their difficulty in fitting into normal life after release.
If our prison system were truly serious about reducing recidivism, then major efforts would be made to educate prisoners and to treat their physical and mental problems. Addiction to drugs and alcohol would also be addressed. Few prison systems make more than token efforts along these lines. The result is that most convicts are back in -prison within three years after release.
But (there always seems to be a "but"!) there are important reasons why we should all be concerned about the way our criminal justice system, and our penal system in particular, is operating. A pivotal point is that the "lock 'em up, beat 'em up, and throw away the key" approach is dramatically counter-productive. It is wasting huge amounts of the taxpayer's money, inflating business costs in several ways, and, more important, is responsible for a large portion of the violent crimes that are causing pain and grief to countless numbers of innocent people.
If we could improve the system so as to reduce recidivism from over 50% to say, less than 30%, the number of criminals. both on the street and behind bars, would be greatly reduced. The number of people hurt by criminals in various ways would fall dramatically, and the costs of the system would eventually go down sharply. The beneficiaries would also include those currently committing the crimes, and their families.
Another, more idealistic, reason for concern is well captured in the quote below, from an unexpected source:
The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm and dispassionate recognition of the rights of the accused against the state and even of convicted criminals against the state, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry of all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of curative and regenerating processes and an unfaltering faith that there is a treasure, if only you can find it in the heart of every person.
I'll bet you didn't guess that these words were written by that well known bleeding heart liberal, Winston Churchill. This is part of a statement he made a century ago when, as Home Secretary in the British cabinet, he proposed major reforms in the British penal system [6].
When thinking about convicted criminals it is natural to picture vicious hoodlums gunning down gas station attendants or raping 16 year olds. Sadly, such people do exist, and need to be dealt with appropriately. I'll get back to them shortly. First, let's understand that they constitute a small fraction of the prison population, The majority of prison inmates are there because they were caught with 6 ounces of marijuana or crack cocaine, or stole a car, or forged a check, or stole a jacket from a department store, or a DVD player from someone's house. Many of the violent crimes committed by other inmates were of the nature of bar room brawls. The point is that the great majority of those in prison, especially the younger people, are far from being beyond redemption.
How Can We Do Better?
We could start by reducing the size of the prison population. One way is to greatly reduce most sentences. While those convicted of brutal crimes should certainly get long sentences in secure facilities, it is unreasonable to impose a 3 year sentence for a credit card theft of less than $100. What about a three-strike law awarding life sentences to those convicted of three felonies over a period of several years? That might make sense if the crimes were all seriously violent. Unfortunately, such laws have been applied to people committing only minor, non-violent felonies. For example, the US Supreme Court upheld a life sentence where the 3 strikes consisted of credit card fraud, a forged check, and not showing up to do a repair job for which advanced payment was collected. A total of just under $230 was involved [7].
While it is important to lock up killers, rapists, and others who have demonstrated that they are dangerous, incarceration for activities posing no physical threat to others is overkill. Marginal offenders, exposed to hardened criminals in prison, often commit worse crimes after release [8]. Rather than the sledge hammer of a prison sentence, we could sharply reduce the numbers in prison by using much less costly, less damaging, and more effective ways to deter, punish and correct anti-social behavior.
Even minimal drug rehabilitation programs are likely to be more effective in treating drug addiction than time in prison. Devoting more resources to improving and implementing such programs as substitutes for prison sentences would be a promising and cost-effective strategy. Even better would be to decriminalize drug use [2].
Consider petty thieves, stealing audio units from cars, or merchandise from stores. Some combination of community service work (e.g., park maintenance), group therapy, and a requirement to compensate the victims over some period of time, would do a lot more to straighten them out than would penning them up with groups most likely dominated by vicious characters. Sizable (in terms of their ability to pay) fines might be part of the mix, particularly with respect to crimes of a purely financial nature, such as check forgery or credit card fraud. House arrest, using some sort of electronic monitoring, is another possible alternative [9].
Dealing with educational deficiencies, and chronic illnesses, physical or mental, would be very helpful in reforming criminals. This could be done in prisons or, at a much lower cost, as part of non-penal programs for convicted criminals.
A major factor motivating criminal behavior initially and impeding the reform of "beginner" criminals, is an inability to find a decent job. The suggested educational and medical assistance mentioned above can certainly help, as can halfway houses, but there are two basic problems that don't have obvious solutions.
The understandable reluctance of employers to hire people with criminal records is a big problem. Federal, state, and local government agencies can help by making suitable jobs available to ex-cons [10]. Tax incentives and government liability insurance might also be used to encourage private employers to hire ex convicts.
Another problem is that, during hard times, such as we are now experiencing, even ordinary, reasonably qualified people, without criminal records, are having difficulty finding work. This problem is exacerbated by competition from the large number of immigrants, both legal (including guest workers and those under the H-1B program) and illegal, from poor countries who are willing to work for less [11].
Accepting them still leaves the question of just how severe the punishment should be. Clearly there are limits to what should be done. The kinds of torture inflicted on convicted criminals in the past is not acceptable today in civilized society. Cruel and unusual punishment is explicitly prohibited by the US constitution. I doubt that many of even the most vociferous advocates of the hard line approach would personally be willing to tear out fingernails. Apart from squeamishness and common humanity, there are good utilitarian reasons for excluding cruel treatment of prisoners,
There is ample evidence that treating people brutally is most likely to produce brutes. Many, if not most violent criminals were maltreated as children [12]. If our goal is to ensure that those who complete their prison terms will be most likely to behave viciously in the future, then the most effective way to accomplish this would be to make their prison stays as painful as possible, encouraging guards to abuse prisoners and prisoners to abuse one another.
It is important to recognize that taking away peoples' freedom, locking them up for months or years, is in itself a severe punishment. There is no need for amplification. Even if we don't care at all about the lives of the prisoners, it would be wise to treat them so as to make it more likely that they will become law abiding, tax-paying citizens after release, rather than hoodlums. This is not an unattainable goal, as there are many instances of criminals who have reformed. Human beings are very complex. It is a big mistake to assume that they cannot change.
Serious, good quality in-prison programs to deal with addiction, medical problems and educational deficiencies, as mentioned, above would be important basic steps. Vocational training is an obvious further step. But we can do more. Allowing, and encouraging prison inmates to form and operate organizations of a benign nature, such as music or acting groups, would relieve a lot of stress, and help them develop important social skills that many of them lack big time. Making it easier for convicts to maintain contact with their families is another way to facilitate rehabilitation.
There have been many successful experiments in which prisoners have been employed outside the walls in ways useful both to themselves and to others. For example, thousands of California prisoners have been trained in fire-fighting and perform very well on teams fighting forest fires [13]. There are also manufacturing facilities within some prisons that employ inmates. Particularly where private companies are involved, some thorny issues arise [14]. One is that the use of prison labor takes jobs away from other people and depresses wages. Since a portion of what the prisoners earn goes to the prisons, there is the risk that prison administrators, and perhaps correctional officers unions, might develop a vested interest in prison labor to the point where they become advocates of longer prison terms. We certainly don't want to resurrect the old Georgia chain gangs.
The treatment of juvenile offenders is a closely related matter that is also being handled badly. I have not addressed it here in order not to expand an already lengthy essay. For the same reason I have not discussed the privatization of prisons, which is exacerbating all the problems discussed above.
Our barbaric prisons and the criminal justice system that populates them so lavishly, in addition to being a national disgrace, are imposing penalties on all of us. They are a self-perpetuating generator of criminals, and a growing burden on tax payers. It won't be easy to fix, but it doesn't have to be that way.
Comments can be emailed to me at unger(at)cs(dot)columbia(dot)edu (Don 't forget to replace (at) with @ and (dot) with .)