In nature there are neither rewards nor punishments; there are consequences. --- Robert Green Inge
Well-intentioned systems (businesses, schools, armies, societies) get themselves into trouble when they forget to stop doing what they are doing for a moment and ask How are we doing? Are we achieving our mission? Is there a better way to do what we do?
Our criminal justice system was never “planned” and has seldom been checked up on. It is the product of centuries of laws put on the books for all kinds of reasons and motives and under various national (mostly U.K and U.S.) and local administrations. You don't build a good car by just doing more and more things on your assembly line and hoping for a great vehicle at the end. Yet that is how we approach criminal justice in the U.S.: lots of people (police, judges, politicians, corrections officers, lawyers, bondsmen etc.) doing lots of things (mostly with good intentions) and hoping it all works out somehow.
Return on Investment
The core mission/purpose of any criminal justice system is to provide public safety and security at an affordable price. Problem is that different people want different things from the system (e.g. crime control, enforcement of moral values, control of certain population groups, support for specific business/economic interests) and we have never clearly defined "affordable" in measurable terms. The result is the classic doing of many things without regard for cost or result, and ultimately chaos and misery.
Between 1993 and 2012, spending on the U.S. criminal justice increased by 74%, from $158 billion to $274 billion (compared to just 17 billion dollars in 1980). Police are the largest outlay with real spending of $130 billion dollars in 2012, followed by $83 billion in corrections spending and approximately $60 billion in judicial and legal government spending.
The incarceration rate in the U.S. rose by 222% between 1980 and 2012 (disproportionately among young men of color), largely due to changes in sentencing guidelines (1984) and the “war on drugs” (1986). In 2012, we incarcerated 710 out of 100 thousand citizens, a rate that is six times higher than that of comparable nations. Despite that massive expenditure of resources, our criminal justice system convicts and sentences only a tiny proportion of the offender population, and many Americans now experience the criminal justice system as fundamentally hostile and attacking rather than protective of their rights and security. How have we ended up with this disappointing return on investment, and how can we correct it?
Solving Problems
We dance round in a ring and suppose, but the Secret sits in the middle and knows ― Robert Frost
We often FAIL to solve problems because we are operating from certain assumptions and beliefs and paradigms (often unexplored and unquestioned) that are causing the very problems we are complaining about. The foundation paradigm of the criminal justice system is PUNISHMENT. Most of the stakeholders in the criminal justice system (judges, police, corrections officials) believe that the more we punish people for their “bad acts”, the safer our society will be.
But what if that basic assumption is actually one of the root causes of the poor results we are getting for our investment of billions of dollars in our police, courts and prisons? If we remove punishment as our core operating principle, what will we do instead?
A better way forward
Innovating for improvement is the practice of applying rational engineering principles of inputs and outputs to achieve both quality and efficiency. It begins with the end (goal, objective, purpose, mission) in mind and then asks whether every part of the process adds value by contributing to a good outcome. Removing low-value activities and diligently improving everything else makes for a better result every time.
Following are three suggestions for more public safety at the same or lower cost by altering some of our core beliefs and the actions that result from them:
Rx #1: The concept of “punishment” should be replaced as the core animating paradigm of our criminal justice system
A person who has been punished is not thereby simply less inclined to behave in a given way; at best, they learn how to avoid punishment. --- B. F. Skinner
While punishment has powerful short-term effects on behavior, we know that it also has some very bad unintended consequences and side-effects such as (a) the tendency for the punisher to escalate the frequency and intensity of punishment and (b) the corollary for the punished to escalate their efforts to escape or counter-attack. Over time this cycle of escalating punishment and negative reaction does not result in more domestic tranquility, either in a family or a society.
While punishment is an understandable and longstanding human response to being violated and wanting retribution, we should look for more effective evidence-based paradigms and practices for our criminal justice system. Rather than prioritizing punishment, we can consider two dynamic replacements: PROTECTION (the segregation of violent offenders from the general public) and RESTITUTION (compensating the victims of crime).
The foundation human need is safety, without which we can not survive and thrive as individuals and communities. The majority of criminal justice resources should be aimed at keeping people safe, and PROTECTION should be the core animating principle of any criminal justice system. The incidence of violence (1,163,146 violent crimes reported to law enforcement in 2013; actual incidence of course much higher) in our society is unacceptably high, and the clearance/conviction rate for violent crimes is unacceptably low. Current estimates are that out of 1000 violent crimes, only about 7 rapes and 41 assaults actually end in a conviction. We need to dramatically increase our investment in the investigation, prosecution/conviction and incarceration of violent offenders (the two suggestions below will free up funds to do so without increasing the current budget).
While we can debate endlessly whether imprisonment prevents crime, there can be no disagreement that as long as a violent felon is in prison, they will not injure the general public. Some of the sentencing guidelines for violent crimes are inappropriately brief, and judges have too much discretion to reduce sentencing below recommended ranges (such as probation or suspended sentences for rape and domestic violence). We should upgrade to felony status many violent crimes currently listed as misdemeanors. Increasing the conviction and incarceration rate will reduce/prevent violent crime due to segregation of more violent offenders for longer periods of time.
Lest the points above sound too much like the standard “tough on crime” approach, we need to also reform the horrific culture of violence WITHIN the prison system. Defining the motivation for incarceration as PROTECTION of society, not as punishment of the incarcerated person, can begin to change the highly sadistic punishment culture of prisons that enable and even promote the most horrifying abuses of inmates under the rubric of “They’re just getting what they deserve”. If people are not there to be punished, it will be easier to view them as full human beings still entitled to the rights and privileges (except for their freedom) to which every citizen is entitled.
The “Stanford prison experiment” (despite its flaws) and other examples (fraternity hazing, military interrogations, authoritarian regimes) demonstrate clearly that people will engage in behavior that they might otherwise avoid because of institutional norms and practices. While certain people are attracted to police and prison jobs because of their sadistic desire for power to abuse others (and they should be screened out by application of talent selection best practices), many well-meaning people are swept up in a culture of abuse as a means of protecting themselves and maintaining their viability in a punishment-oriented prison system.
Better living conditions, food, medical care, education and job training, and voting rights should be guaranteed to people while serving their sentence. If the prison population is dramatically reduced (as would happen by following the next two suggestions), there will be more funds available to make prisons safe and respectful environments for the people who work and live there. The idea that prisons are places to segregate violent offenders and protect the non-violent can also be applied WITHIN the prison itself. Acts of prisoner-on-prisoner violence can be managed by segregating the offender from the general prison population (solitary confinement is not always a bad or inhumane approach, especially if implemented fairly and respectfully and with clear guidelines for exiting).
Rx #2: Prisons should be used ONLY to protect society by segregating violent offenders; non-violent offenders should be managed in community-based programs
All in all, punishment hardens and renders people more insensible; it concentrates, it increases the feeling of estrangement; it strengthens the power of resistance. --- Friedrich Nietzsche
Since the prison/corrections system is the second most expensive element (after policing and ahead of judicial spending) of the criminal justice system, expenditures on incarceration should be targeted strategically. More than three quarters of prison inmates were convicted of non-violent (victimless and property) crimes. Innovation for better results at lower costs should divert all those convicted of non-violent crimes away from prison-based sentencing and into more effective and less expensive/disruptive community-based programs that supervise offenders through human (case management) and technical (electronic monitoring) means, enable them to continue to work and meet their family and other civic responsibilities, and require them (through automatic wage garnishment and other non-voluntary means) to make economic restitution to the victims of their crimes.
The direct costs of imprisonment (~$32K/year in 2015) for non-violent crimes by diverson into community-based programs (such as “restorative justice”) can be reduced significantly while dramatically reducing recidivism rates. These figures do not even include the harder to measure indirect costs of imprisonment such as
loss of family income and related state/federal tax revenues;
disruption of work role/skills with increased unemployment and homelessness post-release
increased poverty levels and related social welfare payments
disruption of family and child development/health leading to inter-generational poverty and illness generation
The enormous human and financial benefits of diverting non-violent offenders from prison to community-based programs would provide a massive stimulus to our economy and benefit to our national well-being. Requiring non-violent (largely property theft and “white-collar” crimes) offenders to divert some meaningful percentage of their income and net worth to paying RESTITUTION to their victims during their sentence would benefit all parties and society at large. The victims would obtain some concrete economic justice, and the offenders would have an opportunity to experience a real moral code in action and to earn societal forgiveness by making amends for their bad deeds. People who refuse to abide by their community-based sentences can be remanded to prison, with a clear pathway toward rapidly regaining community status.
Rx #3: We should not ask our criminal justice system to operate beyond its core mission
Whipping and abuse are like laudanum: you have to double the dose as the sensibilities decline. --- Harriet Beecher Stowe
If we ask our criminal justice system to protect public safety and security at an affordable price (a challenging mission by itself!), then that is all we should ask of it. While it is tempting to keep loading on duties and responsibilities (“mission creep”), we run the risk of overburdening the system which results in dysfunction and eventual breakdown (as we are seeing in our education and healthcare systems as well).
This means we should not ask our criminal justice system (especially our police professionals) to enforce public values or “morality”. That vital public interest should belong exclusively to our families, schools, religious and other not-for-profit institutions devoted to the common welfare, the media and our elected officials. This means we should purge from our criminal code ALL so-called "victimless" crimes committed by consenting adults (drug use, gambling, prostitution, broken tail lights, “jaywalking” etc.). Most of these behaviors respond better to public health than to criminal justice practices, and most police professionals will applaud removing this enforcement burden (as well as all that counterproductive intervention/friction with the civilian population) from their duty roster.
While many people will decry removing morals enforcement from our criminal justice system and predict the end of civilization as we know it, they would be guilty of a lack of faith in our families, schools, religious and other not-for-profit organizations, media and elected officials. These constituencies have all the tools and influence required to encourage a more civil society if they will only find the will to do so. Schools used to teach civics and ethics (so-called “moral education”) and could do so again.
Our media companies could take immediate responsibility for the fact that about 90% of their products (films, TV and games) present/model and thereby promote violence, especially toward women, such that an average American youth will witness 200,000 violent acts on television before age 18. They could find a better and more socially responsible way to make a profit, either voluntarily or with the help of our families and elected officials. The direct savings from the cessation of policing, prosecution and incarceration for victimless crimes would be immediately available for budgetary savings or, more productively, for investment in the prosecution of violent and property crimes.
Summary
The reformative effect of punishment is a belief that dies hard, chiefly I think, because it is so satisfying to our sadistic impulses. --- Bertrand Russell
In many cases, the root cause our FAILURE to solve our important problems is our faith in certain cherished beliefs, assumptions and paradigms that resist scrutiny and change.
If we (a) replace punishment with protection and restitution as the core operating paradigms of our criminal justice system, (b) restrict the use of prisons to segregating violent offenders and deal with property crimes through community justice programs, and (c) transfer responsibility for victimless (“morals”) crimes from our criminal justice system to more appropriate social institutions, we can create a system that achieves its core mission (promoting public safety and security) more successfully and at lower cost.