Will posits the scenario wherein we judge two approaches to prison – a very lenient one and a very harsh one – by the sole metric of their recidivism rate, and posit how much “extra” recidivism people will endure in order to feel that “justice” is being done by harshly treating the criminals.
The post touched off a question I’ve had thought about, and posted in smaller terms on before, which is that I believe our current “one size fits all” system doesn’t adequately address the various types of criminals very well.
There are two subsets of criminals; the rational and irrational actors. A “rational actor”, for purposes of discussion here, is someone who acts according to the normally-accepted models of risk and reward.
In the first category of rational actor, you have criminals who know what they are doing, weigh the risk of being caught and punished against the expected reward for the crime, and decide the risk is worth the reward. The assumption of our criminal justice system, courts, and prisons is based on the assumption that the majority of the prisoner population is from this category, and that criminals in this category can be “reformed” by the threat that they will reenter the harsh prison system should they “screw up” again.
In the second category, you have criminals a lot like the first, but with the added problem that their standard of living is so low (either because of situational factors, physical disability, lack of education, or something else) that our system’s remedies (incarceration and fines) cease to be a punishment. Incarceration provides things they aren’t getting regularly outside (a roof over their bed, three square meals, etc). Fines? Well, they had so little money, the chance of their ever paying is nonexistent to start with. Some opponents of “soft” and “low-security” prisons, prison recreational facilities beyond the minimum, and even of in-prison educational opportunities (not I on the last one) disagree with prison leniency on the idea that the more “fun” it is to be in prison, the more people will cease to see prison as something to be avoided because the bar of “worse than I already know” is raised.
In the third category, you have people whose lifestyle is based around criminal activity. These people skew the system’s idea the other way – it’s not the “punishment” of prison that is off, because they do try to avoid it, but rather that the rewards of their chosen crime (often violent crime, extortion rackets, drug smuggling/sales, etc) are so great that they will reenter their groups and keep doing it after release on that basis. Once in, their social networks also begin to revolve around this behavior. Once the social network revolves around criminal behavior it’s almost impossible to get them out, since the opportunities to participate in it will come up almost immediately after release unless drastic measures (such as a prohibition on returning to “old haunts” or contact with former friends) are taken as a condition of parole.
These first three categories are all what we would call rational actors. The “preventive” idea/goal of a harsh prison system is to try to skew the calculation for the rational actors, such that as many as possible decide the crime isn’t worth the potential punishment.
The other subset of criminals is the irrational actors, many of whom also have mental deficiencies of some sort or another.
Some irrational actors have a learning disorder that prevents them from properly connecting cause with effect. A 5-year-old kid who shoplifts because he doesn’t know any better is a “rational actor” acting on insufficient data – but when the same condition applies to people who are “full adults” as far as the system is concerned, and their mental development has simply left them unable to weigh any other calculation than the very-immediate “see something, want something, lack resources to legitimately acquire it”, the person becomes an issue for society. If you want a medical analysis of how it works, there’s a good start over here discussing research on toddlers’ mental states. Add in an inability to correctly recall (or weigh) the impact of past memories of being caught, and you can have a person with real problems.
Some people have a verifiable compulsion toward their particular criminal behavior. These people may not be aware of the crime until just before they commit it, or in the case of small “tic”-like behaviors (such as kleptomaniacs whose compulsion focuses on things like paper clips or pencils) perhaps not consciously aware at all.
Some people are simply sociopaths. They know the calculation very well. They know the punishment, they know the risk of being caught. They may not even gain any “reward” for their acts, in a normal profit motive sense, but the emotional reward of their behavior is such that they are perfectly willing to commit their crime of choice over and over again. These people are compulsive and “incurable”, in the sense that their mental wiring simply will not change. Again, a societal problem because the behavior either needs to be controlled by medication or by semi-isolation from society, into a watched environment where they can be caught before they harm others.
Then you have the so-called “crimes of passion” – a man who kills someone he believes raped his family member, or when tempers flare too high in an argument and a fight results, or a wife/lover involved in a newly discovered affair. As these are wholly irrational (but not “habitual”), very little can be done. In the words of the Joker, “All it takes is one bad day to reduce the sanest man alive to lunacy. That’s how far the world is from where I am. Just one bad day.” The good news (at least as far as recidivism rates are concerned) is that normal people who have this “one bad day” aren’t as likely to repeat their crimes as those from other groups, though in-prison or during-probation mental treatment would definitely help decrease the rate even further.
The final group are those who may not intend harm to others, but simply have a poor decision-making process that causes them to do things that hurt others. A good example of persons in this category would be habitual drunk drivers – not that they intend to harm others (or themselves), not that they intend to even be drunk, but simply that they commit to the first step of the decision chain (deciding to open the bottle or go to the bar) and everything goes downhill from there. It’s not necessarily alcoholism, obviously – you could take habitually rowdy/violent parents at Little League games and make the same analysis. These are people who have a “trigger” situation whereby they lose what we would normally consider “common sense” control of their actions, but can’t seem to avoid the trigger or regularly recognize the dangers in time to pull themselves out of the dangerous situation.
Part of the problem for the so-called “criminal justice” system is that it treats all criminals (nominally at least) the same. We make rudimentary efforts to deal with the “so poor that prison isn’t punishment” group with in-prison education opportunities, and these do help reduce recidivism for the people from that category, and perhaps also for people from the first category who lose their jobs and risk slipping into the second category. For the “rational actors” in the first two groups – who understand the risks and believe that the reward is worth it – a harsher system may make sense in that it may be able to prevent recidivism or initial criminal activity out of fear.
For the third group, we are probably too lenient. This is especially true when it comes to young people in gangs, because research has shown that savvy gangs tend to use their youngest members for violent acts, knowing that the criminal system punishes them far less harshly. Moreover, the justice system fails by allowing these people to easily reconnect with their fellow gang members or “friends” after release.
The other problem with our system is that it tends to fail to identify – or deal with – the irrational actors well. Irrational actors with a compulsion may, in the structured environment of prison, never get triggered. Sociopaths are well known for being able to “game” the system, convincing the people responsible for turning them loose on society that they are “rehabilitated”, regurgitating what it is the system’s maintainers want to hear, when nothing could be further from the truth. Except for the cases where someone is guilty of serial violent crimes (rape, murder) where the punishments are already set to be incredibly harsh, the system resembles a revolving door. One example I know of who frequents the Southern Tech University campus (among others) fits either into the “too poor” or the “learning disability” category. I’m not sure which, but I do know that every time he is released from prison, we get warnings posted over campus.
The problem with this guy is, he commits minor theft rather than grand theft (laptop bags, backpacks, the occasional projection/computer equipment). He compounds this by pleading guilty and knowing what to say to the judge and how to behave in prison, such that even before his sentencing, he’s usually already a “trustee” with all sorts of extra privileges in the jail. Since his crimes are “minor” and he is never violent, he then spends a few months in a low-security jail with a warm bed, 3 square meals a day, rec center, free cable tv, no rent, extra trustee privileges… and then he returns to the SoTech neighborhood and repeats the process all over again, visiting local schools and stealing things to sell to pawnshops.
Again, I don’t know him well enough to definitively place which category he’s in – I do not know him personally, just from the police reports we get and from discussions of his case with some of the officers who went around to warn us of his last release. It’s quite possible he is a “rational actor” from the slums next to SoTech who has decided that the jail system just doesn’t qualify as a punishment. It’s also possible he has some other mental problems. It’s still quite probable that some form of a supervised release – as opposed to simply turning him out to the streets or dumping him back in his old neighborhood, as they currently do – would probably do better than the simple “serial recidivist” behavior we get out of him currently. I also have to wonder; in a county where you had a Joe Arpaio-style jail rather than what he gets in Colosse, would the risk/reward analysis of his crime make him less likely to behave as he does? That alone might help to determine whether he is a rational actor or not.
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When I worked for a couple of years as a court clerk, in the early 1990’s in Connecticut, one of the judges once stated his views on the criminal defendants he saw every day. He’d been a judge for several years and a prosecutor for several years before that, having dealt with probably thousands of defendants, so he knew of what he spoke.
He said that almost all criminals fit into one of three categories. About 15% were what he called “citizens.” These were respectable, usually law-abiding people who had made one huge mistake, in many cases involving drugs. It made little difference as to the type of punishment they received because they’d never transgress again. Another 15% were the “predators,” hardened, conscience-less criminals who will keep committing crimes as long as they’re not in prison. They cannot be rehabilitated, and the only sort of punishment that matters is keeping them off the streets for as long as possible.
This leaves the “mopes,” who account for about 70% of felony defendants. They are not respectable by any means, but are not completely sociopathic either. They stumble through life, screwing up everything they encounter, and commit crimes mostly because they have nothing better to do. While it’s not easy, some of the mopes can be rehabilitated through proper punishment.
I think that one of the main reasons that the criminal justice system doesn’t distinguish between kinds of criminals or doesn’t distinguish well is because it’s hard to. There’s no easy way to tell who belongs to what group.
The most obvious way would be to do it by offense. But a lot of people are in prison for crimes much less than that they committed because of the deal that they struck with prosecutors. Or the lesser crime was all that could be proven. Likewise, someone only guilty of a lesser crime could have the book thrown at him because he was fearful and refused to testify against the really dangerous people he worked with.
It’s possible that you could have psychologists making the determination, but it’s still subjective and whether or not an individual gets passed off as a hardened criminal with no chance of rehabilitation or a mope that needs a hand up would depend more on which psychologist he got rather than his actual mental condition.
In the end, I think that any system is going to have to be tough on some people it should cut a break to, easy on the people it should be hard on, or both. The question is in which direction we’re more willing to err. And what we’re willing to pay for, of course.
All of that said, I think that it’s really good to always keep in mind that people do have varying reasons for committing crimes. When we hear the word “criminal” we tend to react by our own prejudices. Conservatives will often thing of the big thug who has no chance of ever changing his ways. Liberals will sometimes think of the poor schmo who just never got a break.
Will,
While I agree it’s hard, just because something is hard doesn’t necessarily mean that the effort is unwarranted. I think that this is especially true when the reward (less crime) is something society says they want.
As you commented regarding food, we run the risk of making the perfect the enemy of the good. A “perfect” justice system is unattainable. This is a fact of life. There are going to be people who get on the witness stand and lie. There are going to be people whose crimes go undetected. At the same time, there are going to be people who are framed for crimes they didn’t commit, or just convicted of crimes they didn’t commit based on coincidence.
No matter how “perfect” we think we design a system, the underlying factor in it is always going to be humans. Humans are flawed, so there will be flaws in the system. At the same time, being complacent and not trying to make the system better isn’t wise, and I think that trying to come up with some “filtering” reforms (such as requiring a psychological evaluation for all criminals on their third conviction, perhaps?) , to try to identify and separate those who will respond better to different forms of treatment, is a good idea.
I’m definitely not saying that the effort shouldn’t be made. But I don’t know how good those psych evals will be. It’s hard for me not to envision the psychologists that volunteer for that environment as being generally liberal-minded and overly optimistic. I think you’d see a strong bias towards “These people can be rehabilitated”. At the least I see which psychologist a particular prisoner gets being more determinative than his actual mental state. I also see how good an actor the convict is playing a larger role in their placement than any genuine worthiness. Learning the magic words.
Right now these sorts of determinations are based on luck, legal representation, the crime they committed, and their behavior once incarcerated. People convicted of lesser crimes go into lesser-security prisons which have less security and more privileges. Those privileges being provided in part to keep convicts from being too detached from society. Meanwhile, the worse offenders go into harsher prisons and those that get trouble in prison go into harsher places still. When we hear that our prisons are too harsh and we hear that they are too lenient, I think that a big part of that is not being able to get a solid handle on which prisoners should be going where. Maybe a psych eval would help with that. Maybe not.
I suspect (sadly) that a regime the relied more on psych evals rather than the current criteria – or, for that matter, one that had more rigid structure to the current evaluations and made luck less important – would look a whole lot like what we have now. Simultaneous complaints that our system is too lenient and too harsh.
I don’t disagree with the broad outlines of what you’re saying. It just strikes me that this is a case where the devil really is in the details. And other than in the most obvious cases, I see the improvements most likely being marginal and the system being comparably condemned.
It strikes me that the best criteria may be a combination of criminal history and incarceration history and to try different things on different people.
Maybe in one case you give most convicts a lighter atmosphere with a greater amount of support. The goal being on rehabilitation. Teach them a trade, teach them to read, whatever. Keeping them segregated from their loved ones and limited to regular visiting times and a strict regimen (wake up at 8, lights out at 10, specified diet, etc) may be a sufficient degree of punishment to prevent the average rehabilitatable inmate from feeling like going back is “no big deal”. Maybe more, maybe less (I don’t know what the specifics would entail). But beyond that the goal would be to keep them from becoming too detached from society so that they can re-enter it.
On the second or third conviction, though, if that hasn’t worked, then that’s the point where you try the stick. Whether it’s the second or third time (or, indeed, the first) could be where you start looking at psych evals and other more objective criteria (their age, whether they spent enough time in jail to really help them the first time, the crime, etc).
This is excluding people convicted of heinous or extremely violent acts. There you might need to start with the stick from the get-go.
I don’t know if this would work any better than the status quo or than your plan, but it’s something I am a bit more comfortable with than psychologists all doing the deciding (albeit with access to objective information). It could make things worse.
Part of the reason I kept my first post in the abstract is because there is so much that we don’t know. So I focused on a limited-information scenario where there were fewer unknowns to try to get a basis on the psychological vs practical components of punishment. I am broadly in favor of trying as many things as possible to see what works in the highest numbers. That includes trying your plan, some variation of the above, an Arpaio prescription, or something much more geared towards facilitating a smooth re-entry into society.