December 7, 2015

The Perfect Storm

David Steingraber

by David Steingraber, Senior Policy Adviser at the National Criminal Justice Association, former Executive Director of the Wisconsin Office of Justice Assistance, former Administrator of the Wisconsin Department of Justice, Division of Law Enforcement Services, and former Chief of the Menomonee Falls, Wis. and Middleton, Wis. Police Departments   

The “perfect storm” has come to mean the convergence of two or more forces to create a larger force which is greater than the sum of its parts. Such is the case with criminal justice reform. The politics of criminal justice reform has always been an impediment to true reform. The forces of law and order have always collided with well-meaning “do-gooders” to cancel any real momentum for reform. Dramatic headline grabbing crimes and a statistical increase in crime rates have prompted knee-jerk get tough on crime responses at both local precincts and state houses across the country.

What has changed today is that our criminal justice system has come under scrutiny from both the left and the right. Not only have the deplorable conditions in many of our prisons with overcrowding being a major contributing factor been cause for concern, but concern has also been prompted by the extremely high cost of maintaining prisons to say nothing of the cost of new prison construction anticipated to house a growing number of inmates.

Progressive and social reformers continue to rail against the ineffectiveness and inhumanity of our over-reliance on incarceration. Conservatives have awakened to the impact of the high cost of the prison system. This impact is particularly harsh at the state level which is the primary locus of our criminal justice system. There is also concern at the federal level where the federal justice system has intervened to attempt to quash the national drug abuse epidemic.

For the first time in memory, these two forces are willing to sit down and discuss a pathway to criminal justice reform that is less reliant on what is now seen as a costly and often ineffective response to crime. The reward for both sides is compelling. Each side sees the clear benefit of spending less on prisons and achieving a more effective response to criminal behavior.

What is along this pathway? Three factors drive prison populations: the law and related policy, the length of sentence and offender recidivism. Any one of these factors can impact on prison population. The action required to make a positive impact varies.

Historically there have been many attempts to affect a positive outcome through changes in the law and public policy with respect to the use of incarceration as a response to crime. These range from indeterminate sentencing which left the nature and length of a prison sentence to an administrative body to determinant sentencing where a judge’s sentence could not be altered by an administrative authority and finally to mandatory sentencing. The latter took the form of “three strikes” provisions, mandatory minimums and presumptive sentencing guidelines. Some policies preserved judicial discretion, others preempted that discretion. Many of these policies were predicated on a desire to ensure stiff and certain incarceration, a tough on crime approach that made some feel good, but did little to impact crime and often hurt minority communities. 

Although the public policies I mentioned ensured lengthy prison sentences, judicial behavior also served to cause long sentences. Starting with a belief that time in prison can correct criminal behavior, some judges believed prison sentences were the right thing to do. In many states, trial judges are elected and being a hard line judge plays well with the electorate.  Finally, the economics of corrections enters the picture. In many, but not all states, the state budget carries the cost of prisons. Local budgets fund community-based corrections programs. There is little empirical evidence but one can intuit that local judges can be influenced by who pays the cost of their sentences.   

Recidivism is by far the most damming of the forces affecting the cost of our prison system because it stands as proof that the system fails to correct in a substantial number of cases. Inmates return to prison in staggering numbers either because of the failure to comply with the requirements of post release supervision or after committing a subsequent crime. More effort has to be made to reintegrate offenders into the outside world and to avoid the deleterious effect of prison on human behavior in the first place. 

As further evidence of this perfect storm and to reinforce the broad support for criminal justice reform, more than 130 current and former police chiefs, federal and state chief prosecutors and attorneys general from all 50 states have formed an organization called Law enforcement Leaders to Reduce Crime and Incarceration. This group is supported by the Brennan Center for Justice at NYU School of Law. 

The mission statement of the group is as follows: “As current and former leaders of the law enforcement community — police chiefs, sheriffs, district and state’s attorneys, U.S. Attorneys, attorneys general, and other leaders — protecting public safety is a vital goal. From experience and through data driven and innovative practices, we know the country can reduce crime while also reducing unnecessary arrests, prosecutions and incarceration. We can also reduce recidivism and strengthen relationships with communities. With the goal of building a smarter, stronger, and fairer criminal justice system, we are joining together to urge a change in laws and practices to reduce incarceration while continuing to keep our communities safe.” 

I am proud to be among the founding members of this organization and part of this perfect storm.