In an earlier thread, Gannon took exception to how many people the US has in jail. I’ve already begun discussing this in the context of Jamal Damon Barack, and the types of repeat theives that public universities see.

On the competing side, two stories recently: First, a CNN video on a man who served his time, came back into society, but couldn’t make it so he handed a cop some crack and begged to be re-incarcerated. Secondly, a story on some teenagers who ran a violent prostitution ring, but managed to get off with a year and a half in juvie due to a plea bargain.

If you’re going to make a case study for where the US prison system is messed up, these are a pretty good place to start. People fall into a life of crime for a lot of reasons – some are actually in need, some simply have no respect for the law/life/property of others, some are medically sociopathic, some see an opportunity for profit that bypasses or outweighs the risk calculation of being caught, and some (though this is generally relegated to more obscure/arcane areas like tax law or financial reporting) honestly try to follow the law but simply have no clue what it actually means.

In the case of JDB, I mentioned that the (a) courts are too lax in sentencing and the comforts of prisons and (b) prisons themselves are not really set up to do a good job rehabilitating people. The homeless gentleman doesn’t appear to have gotten a lax sentence – but at the same time, when he got out of prison, he literally had no support structure to turn him back into a productive and law-abiding member of society. He sounds like the type who would have done better for it. On the other side, we have people like JDB and the pimp boys, who probably would leave jail and go right back into crime no matter what prison tried to do to rehabilitate them.

Prisons, obviously, have dual purposes. There is a large amount of debate as to which of these purposes is primary. Speaking neutrally, they can be enumerated as corrective and protective. In the corrective element, prison is supposed to serve as a place where individuals who’ve committed crime can be rehabilitated, shown the error of their ways, and then return to society and become productive and law-abiding. In the protective, prison is supposed to both serve as a deterrent to criminals (the sane ones who will weigh risk/reward and decide crime isn’t worth the risk) and also keep those who are not yet rehabilitated away from those they otherwise would harm.

Where this falls down:
#1 – Prisons and the Justice system currently do a lousy job working out who’s actually rehabilitated or not. Part of this is due to the lax sentencing problem, part of it is due to well-meant but ill-thought-out plans to try to keep prison populations (and thus maintenance costs) down, and part of it is due to the construction of the system in the first place. The end result is that a lot of people who have no business being released back into society are let out anyways.

#2 – Prisons do a lousy job of showing prisoners the reward for being productive and law-abiding. Let’s face it, most prisons have corruption problems, they have a high criminal-to-guard ratio, and the underlying society between prisoners isn’t run like normal society. People learn plenty of the wrong lessons in prison.

#3 – Prisons, especially short-term/”low security” ones, are cushy. I wouldn’t say that I’d want to live there, but I can certainly see where a guy who’s homeless and desperate might indeed see prison as “no worse” than where he currently is – in prison, he gets his meals covered, he gets a roof over his head and warm bed to sleep in at night, and he has things like cable TV and a weight/recreation room available at least part of the day. In the case of the story above, we’re lucky he didn’t go violent. If your calculation is that prison’s no worse (or even better) than you are now, the deterrent effect and protective goal of prison kind of vanishes.

Oddly enough, though it would take some and money, at least a partial solution to these problems has already been discussed in the area of sex offenders. A number of states have been considering laws that change the sentencing of sex offenders from a strict “X years unless shortened for other reasons” or “X years with first parole chance at Y years” to, instead, “jail until you can prove rehabilitation and minimal likelihood to re-offend.”

The American Criminal Liberties Union and associated well-meaning (but almost never well-doing) groups opposed these laws, but I submit that if expanded, it would improve the prison structure on both goals.

Consider the following hypothesis: all sentences from this point on (and all existing sentences commuted to the new structure) remove the “cap” of a sentence. Instead of a judge pronouncing “stealing a car at knifepoint, 10 years with possibility of parole in 5” on someone, the simple pronouncement: “Guilty. Remanded to state custody, first possibility of parole in 5 years.”

This changes the game in a number of ways.

First, it removes the idea of shortened sentences from the equation. Gone is the idea that someone will simply “get off with a slap on the wrist”, gone is the idea of someone waiting out their sentence. It also adds a sanity check on judges who are unnecessarily light to start with – a second panel would be responsible for releasing the individual, and hopefully catching the unrepentant criminals who got a light sentence to start with.

Second, it alters the game for those who actually want to get out of prison. If you really want out – if you really are repentant, really DO want to be outside the walls – then your best bet is not going to be to participate in the underlying prison dynamic, but to really learn a skill, really become marketable, really show that you can be a productive member of society. Those who don’t, simply won’t be released – and the goal of protecting society would be served. Moreover, the example to other prisoners would be there: thugs who wait around don’t get out, those who learn to play by the rules actually do get released.

Lastly, this very filter would help with the final problem – the current difficulty of ex-cons in finding work and re-entering society after prison. Those who go through construction apprenticeships, or college courses, or any other form of learning a useful skill will necessarily be the type to market that skill when they get out. The idea of someone who made a mistake, but learned their lesson and served their time and are coming out fresh, might actually have some meaning.

Looking at the three cases above – in the case of our homeless guy, he likely wouldn’t have had zero support structure when he got out of prison. In the case of Jamal Damon Barack, hopefully a parole/release board would have realized after the first few convictions that perhaps he wasn’t learning his lesson and kept him back. And in the last case, I hope to god no parole/release board would be as stupid as the judge who gave violent multiple-time rapists a year and a half each.

Category: Courthouse

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3 Responses to Where Jail Fails

  1. Linus says:

    FYI, the ACLU is the American CIVIL Liberties Union. They’re involved in much more than just the punishment side of things; they do a lot with freedom of speech and privacy issues as well.

  2. Webmaster says:

    Linus, the comment “American Criminal Liberties Union” was meant to express my contempt for 99% of the cases they choose to take (and choose not to take). I have respect for things they did in the past, but the’ve taken so many bizarre stances (attacks on freedom of religion, freedom of speech, paradoxically the “right” of convicted criminals to get porn in their jail cells, etc) that I have no respect left for them today.

  3. Barry says:

    Interesting post. I’m assuming we’re only talking about felonies here? Keep misdemeanor sentencing the way that it is with punishments ranging from 11mo. 29day incarceration, community service, fines, etc?

    If your model were adopted, what would you do about those receiving the death penalty or life in prison? Would lifers simply get something like, “indefinite incarceration, chance for parole in 100 years”? I’m think the death penalty would be the only non-reversible penalty, i.e. you can’t kill them and then give them the option to show they’re rehabilitated at the end of a few more years 🙂

    I think plea-bargains are a huge component of sentencing problems as well. Not only do defendants receive offers to plea down to a lesser offense in order for the backlogged courts to move quicker (an injustice in itself), often prison snitches and others in the system will turn state’s evidence or testify against other defendants in order to reduce their own time. Do we continue to take all that into account and allow it to continue?

    A big area I’d like to see implemented more often is the idea of restitution – the concept where the victims of the crime have their property restored to them by the prisoners, or some sort of post-jail work bondage is formed to help the perp pay back what he stole/broke/destroyed/whatever. If a guy robs a house and steals $10,000 worth of TV, stereo and computer equipment, justice will not be served until somehow the guy pays back all the money or restores the items, through a kind of indentured servitude until a time such that the debt is repaid.

    Perhaps monetary or service levels can be measured and assigned to repay other kinds of debts, like personal injury, drunk driving, even rape. Not that you’d be releasing any of these criminals any earlier necessarily if they really need to be in jail, but restitution should be part of their sentencing when applicable.

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