Time to Be Smart On Crime and Punishment

10/14/2010 02:11 am ET | Updated May 25, 2011

Two weeks ago, I attended the first Meg Whitman-Jerry Brown gubernatorial debate in California. One of the things that struck me was the time-warp quality of Whitman's discussion of crime and punishment.

Time and again, she told her audience how she would be "tough on crime," contrasting her ideas with the purportedly "liberal" record of Brown. She talked about Rose Bird - the more-than-liberal state Supreme Court justice appointed by Brown during his earlier gubernatorial incarnation in the 1970s, and subsequently recalled by disgruntled voters at the start of the "tough-on-crime" epoch. On capital punishment, Brown reluctantly conceded that, while he was personally opposed to the death penalty, his job would be to enforce state laws, including signing execution warrants. Whitman, by contrast, showed no such qualms; for her, the major issue regarding the death penalty was that it took too long to execute people these days. Despite Brown's endorsement by many law enforcement organizations, the Democratic candidate, Whitman averred, simply couldn't be trusted to do the right thing when it came to punishing criminals.

On crime-and-punishment, Whitman is hewing to a script written by governors Deukmejian, Wilson, and Davis in the 1980s, 1990s and early 2000s. After all, supporting every "tough-on-crime" policy, no matter how poorly thought through, how ineffective as an anti-crime strategy, or financially extravagant they might be, had helped Wilson, in particular, ride popular anger to power; and had then smoothed the way to his re-election as governor despite the state suffering considerable economic hurt during his first term.

So, in 2010, tough-on-crime, as a policy gimmick ought to work well. But there's a problem with the script these days, and it's this: a continuance of policies that have resulted in a more-than-quadrupling of California's incarcerated population over the past third of a century doesn't work in an austerity-era. Quite simply, it costs too much to implement -- in the region of $50,000 per year per incarcerated Californian. Regardless of who wins the gubernatorial race, one of the elephants in the room that will have to be confronted if the state is going to learn to live within its diminished financial means, is California's sprawling prison system and broken parole process - that serves mainly as a revolving door shunting released inmates straight back to prison. Spending $10 billion or more per year, on maintaining a prison system that so signally fails to rehabilitate inmates increasingly, in the era of the $19 billion budget deficit, seems a case of throwing good money after bad.

And California's problems aren't unique. After decades of punish-first-ask-questions-later practices, the nation as a whole has become the globe's leading producer both of prisons and of prisoners. One in a hundred adults currently live behind bars, and amongst some groups - particularly young, impoverished African American men, the figures are far, far higher. At any moment in time about one third of young, African American male high school drop-outs are in either prison or jail. In fact, argues Brown University social scientist and economist Glenn Loury, in no other realm of American life are racial inequalities so dramatically played out.

Recently, academic researchers brought together by the American Academy of Arts and Sciences published a special issue of the journal Daedalus given over to looking at the impact of mass incarceration strategies on American politics, economics, and community, and exploring ways out of the mass-incarceration maze that the country has gotten itself lost within.

I was brought aboard as a consultant to this project. What rapidly became clear, in reading through the research, was the broad realization, amongst criminologists from across the political spectrum, both that current incarceration trends have become utterly unsustainable; and that evidence-based alternatives to incarceration have been developed in recent years that, with a bit of political good will behind them, could channel large numbers of defendants away from prison and jail and toward drug treatment facilities, community service, and other forms of intervention. What also became clear is that an increasing number of states are far ahead of California when it comes to looking for ways to scale back their prison systems: several states have created sentencing commissions to rein in excessive sentences created in spasms of political posturing over the past few decades. Others, including conservative states such as North Carolina, have begun factoring in the cost of incarceration when working out appropriate sentences for individuals.

As evidence piles up that prisons are extraordinarily expensive and, at the same time, singularly ineffective in rehabilitating inmates; and as the racially divisive impact of incarceration trends becomes ever-harder to ignore, so an opportunity for real, smart, reform, is opening up. But it comes with a risk attached. And the risk is that states which have spent decades creating vast penal systems will suddenly stampede to release inmates simply so as to save money in these cash-strapped times or to mute criticism of the socially divisive impact of high incarceration levels.

In this regards, I was particularly struck by an essay in Daedalus by Robert Weisberg and Joan Petersilia, of the Criminal Justice Center at the Stanford Law School. Beware of Pyrrhic victories, they warned reformers; beware of a rush to early release that ends up doing more harm than good.

As a historical parallel the authors looked at what happened in the 1960s and 1970s when an earlier era of wholesale incarceration - this time of the mentally ill in asylums - was brought to a close. Heralded as "deinstutionalization," as a humane alternative to brutal hospitals, oftentimes the mentally ill were simply released into a void. "The consequences in some places were horrible," the authors write. "In part because the irresistible mantra of treating the mentally ill in 'the community' ignored the problem that there often was no 'community.' In reality, there was inner-city slum public housing which soon became a psychiatric ghetto."

Petersilia and Weisberg fear a similar process could unfold vis-à-vis returned-to-the-community prisoners. They fear a fierce backlash "if advocates focus solely on the goal of reducing mass incarceration without advocating simultaneously for a sufficient infusion of funds to help criminal offenders become law-abiding citizens." They warn of "millions of young men who may be relieved of the immediate burden of formal state custody but will hardly be prepared to enjoy all the potential benefits thereof."

Criminal justice spending can't be insulated from public sector cuts. Nor should it. But, at the same time, it oughtn't to be seen as the magic bullet for rescuing dilapidated state finances. Deinstitutionalization, whether of the mentally ill or of non-violent, often-addicted prisoners, should never be done on the cheap. To work, states have to be willing to do some heavy lifting and create networks of new institutions to help these men and women function on the outside. In the long run they will cost considerably less to maintain than do prisons, but, unavoidably, in the immediate future states will have to incur considerable start-up costs. It is, however, as the Daedalus essayists show, a price worth paying.