Despite crime rates being at a historic low, the United States is spending hundreds of billions of dollars to achieve an 80 percent recidivism rate. We’ve spent $1 trillion during the past 40 years on criminal justice, not including $1 trillion more on the war on drugs.
William Kelly, a professor of sociology at The University of Texas at Austin, lays out a plan for fixing a broken criminal justice system illustrated by real-world examples in his latest book, The Future of Crime and Punishment: Smart Policies for Reducing Crime and Saving Money.
“At the end of the day, I don’t see us making the kind of changes we need to make unless there is broad public support for it,” says Kelly, who wrote his book to be accessible to a general audience of informed and interested readers. His book covers an array of issues that are interrelated to the bigger picture of crime — mental illness, substance abuse and public health —and what we can do about it.
If you take a quick look at some of the prevalent characteristics of offenders who are in the criminal justice system, 40 percent have a mental illness and nearly 80 percent have a substance abuse disorder. Moreover, 60 percent of people in U.S. prisons have had at least one traumatic brain injury, which has profound neurocognitive implications that bear directly on behavior and criminality.
“The failure to appreciate all of that has lead us to unacceptably high recidivism rates,” Kelly says. “The reason punishment doesn’t work is because punishment does nothing to fix bipolar disorder. It does nothing to fix addiction. You can’t punish behavior out of people who don’t respond to punishment the way folks without those impairments and disorders do.
“The unfortunate thing is this is not new,” Kelly says. “We’ve known this for some time now, but we still keep crossing our fingers and sending people up the river and assuming that’s going to make things better.”
In fact, the deeper someone goes into the criminal justice system or juvenile justice system, the higher the likelihood they will recidivate. Kelly recommends minimalizing contact with the justice system by addressing the reasons they are there in the first place by taking a more balanced approach: supervision and risk management on one hand, and treatment and intervention on the other.
Another factor to consider is that the punishment continues well after release, because criminal offenders are faced with restricted access to housing, health care, employment, mental health care, substance abuse treatment and education.
“One thing I want to be really clear about: I’m not apologizing for criminal offenders,” Kelly adds. “I’m not saying these are excuses. These are reasons, and in many situations these are correctable reasons.”
Kelly writes in The Future of Crime and Punishment that our imprisonment rate of 716 per 100,000 U.S. residents far exceeds that of all other nations, including many that we probably consider rather punitive — Russia, China, Rwanda, Kazakhstan, Iran, Saudi Arabia, Pakistan, Singapore and South Africa. There are currently 10.1 million individuals incarcerated worldwide. If the rest of the world imprisoned people at a rate similar to that of the U.S., the world’s incarcerated population would increase fivefold to more than 53 million.
Tough talk and tough language boil down to a focus on retribution and anger-based decision-making, says Kelly, who observes that when offenders do things that make us angry, we then respond with actions that are punitive. He doesn’t see the utility in this approach.
“In my mind it makes a lot more sense to determine who we are truly afraid of, not just those who make us mad, and use expensive things like incarceration only for those who are realistically at risk of committing a serious crime,” Kelly says.
The concept of being “tough on crime” is largely a function of our own personal experiences or the personal experiences of policymakers and elected officials for whom punishment generally works. “This is how we are socialized by being corrected by parents, school teachers, church,” Kelly says. “And there is a lot to that logic except that it is applied to a population that is quite different from the policymakers who are making those decisions about punishment.”
The political rhetoric and action during the past 50 years has been to be “tough on crime.” Sentencing reform dating back to the Nixon administration accelerated how many people go to prison and for how long. That included a move to limit the discretion of a judge in sentencing offenders and increase the amount of mandatory sentences and prescribed sentences. The sentence is attached to a charge, which in turn is attached to the control of a prosecutor.
Kelly’s book includes real-world examples such as Travis Bourda, whose quarter of a pound of marijuana landed him a life without parole sentence due to Louisiana’s three-strikes law; or a 15-year-old girl Kelly interviewed in Brownwood, Texas, who had been repeatedly sexually abused by males in her extended family and was officially placed in juvenile prison due to truancy and minor property crimes.
“When Nixon kicked this off, we were having historically high crime rates,” Kelly says of sentencing reform. “That has all gone away. We now have historically low crime rates, but we are on that same trajectory of tough on crime.”
“All of the major decisions are made by prosecutors,” Kelly says. “I think most judges would tell you these days they don’t have nearly as much influence, discretion or power over things as prosecutors do.”
Kelly describes a very disjointed system and culture within that system. There are too many silos between prosecution, courts and corrections. A judge can impose a sentence with a certain intention and whether that is ever carried out at the level of corrections is out of that judge’s control. Ultimately, Kelly says those silos lead to a gap in terms of responsibility.
“If you have a gripe with the criminal justice system, who are you going to call? Who is in charge? Who is responsible for all this? I think the answer would be they’d be pointing fingers at each other,” Kelly says.
“We don’t have those broad collective agreements about what we are trying to accomplishment here,” he concludes. “They will all say ‘public safety,’ but no one is willing to be the person who is ultimately responsible for making sure that it gets done.”