To Serve All People - Crime Time

Crime Time

Nothing in the judicial system produces more public criticism than criminal justice. Light sentences, plea bargains, recidivism, violent juveniles, and a general sense of declining public safety blend together in a litany of complaints.

The courts are held responsible, but very often this is like blaming baseball catchers for wild pitches.
However, the courts' traditional role ? sitting passively as neutral dispensers of cases that are put before them ? can't do much to improve either the pitching or the catching.
A criminal justice case often begins 25 years earlier, with parental drug abuse or inadequate prenatal care. It proceeds to dysfunctional parenting, community and school support systems that fail, and misdirected interventions. Eventually, social disruption turns to crime, and the young person enters juvenile court, which takes a stab at changing a life that many of the court's own personnel consider hopeless. Not much later, after a term in juvenile detention, the young person graduates to adult, felony crime. Sooner or later, an arrest occurs, and the person becomes a full-fledged case in criminal court. It is almost certainly too late for a one-stop turnaround.
A turnaround is especially unlikely in a court functioning primarily to process cases and ration limited prison facilities.
To begin, therefore, let us think of the criminal justice system as both a long system over time and a broad system at any given point. Traditionally, reform has focused on one entry point, either one place on the time line or one aspect of a complex situation. Single-point focuses, though, are not the way to solve systemic problems. Too many problems compound for one "solution" to work alone; too many parts are hooked onto one another.

Basic justice

The current concern over crime presents an opportunity to go back to very basic questions. How do we establish a shared moral sense? What causes virtue? How do we define deviancy? What do we mean by justice?
Those are questions not just for philosophers, but for legislators and for judges and indeed for every citizen.
A society has some basic sense of what makes for good character. In this country, the Golden Rule, derived from a multitude of cultural traditions, is probably the most fundamental base.
Laws and governmental institutions serve to reinforce such character, but they do not create it. Good character comes first from family and community, but both of those are weaker institutions than they once were. Affluence, technology, mobility, urbanization, consumerism, media ? all these and more undermine the structures that used to weave the moral fabric.
The burden on government and law is to reinforce communities and families that contribute to the development of good character, self-reliance, respect for others, and respect for self. That burden has become heavier, but the knowledge of what works well has not increased apace. And many of the traditional institutions of government and law have not adjusted their roles or their attitudes to the heavier burdens.
That applies to the judicial system as well. We have addressed some of those broader themes earlier, and we consider them again in the next chapter. But there are some specific changes that the judicial system can consider in the areas that affect criminal justice.

Sure Punishment

Punishments should be certain, swift, final and fitting the crime.
In simpler times, this was referred to as the hot-stove rule. Touch the stove, and you would be burned. It would happen quickly, and then be over. The longer the touch, the worse the burn.
The biggest shortcoming in this model today is the small likelihood of arrest for many crimes. An adept burglar can go a long time before being caught. Improvements in catching criminals would do far more to deter crime than anything the courts can offer, but that subject is beyond this commission's reach.
For the burglar who does get caught, though, an adept lawyer can maintain freedom for a long time.
Oddly enough, looking just at those who are indeed arrested, the hot-stove criteria are most often met in offenses that go through plea bargaining. It seems strange to say so, but there are higher odds of certain, swift, and final punishment in plea bargaining than in the adversarial courtroom.
The courtroom might offer the possibility of greater penalty, fitting the crime, for those found guilty, but even that is no sure thing. On three out of the four hot-stove criteria, plea bargaining is "better" justice than taking every case to trial would be.
All of which brings us back to many of the same conclusions we have encountered in earlier chapters and in other areas of the law.
Delay does deny justice. Strong case management is most important in criminal law, because lapsed time comes at the expense of either injustice to an innocent defendant or disservice to an aggrieved victim.
Mandatory grand juries are a significant source of delay in many jurisdictions now. Three screenings for a case to proceed to criminal trial (by magistrate, General Sessions Court and grand jury) build in delay, but the problem is most significant when the grand jury meets infrequently.
Criminal prosecution should be initiated by either indictment or information. Use of the grand jury should be available in publicly sensitive or politically charged cases, but not be constitutionally required. A single judicial hearing to establish probable cause would be sufficient for most purposes.

Honest punishment

Sentencing should present the issues of justice honestly.
The punishment should match the crime. It is a simple statement, but it draws public derision today. It is scorned largely because the actual punishment does not match the stated one.
They do not match because the resources for punishment are immensely short of the public notion of appropriate punishment. Put another way, though, the public is unwilling to pay for the justice it demands.
Few public officials like to deal openly with this issue, and we can't blame them. No one wins re-election on a platform of reducing statutory sentences for the sake of consistency.
The result, though, is a general hypocrisy that takes it toll most directly on confidence in the judicial system, which has to administer the sentencing charade that others impose upon it.
Underlying the debate is the fundamental argument over the purposes of incarceration and the sense of justice, all of which are heavily influenced by individual perspective. Four months might be a reasonable sentence for breaking-and-entering, unless it's your house that has been entered.
Nevertheless, truth in sentencing is vital to public respect for the criminal justice system. In addition, public debate over state resources will be distorted as long as nominal sentences do not reflect reality. How can the public or the legislature make honest choices between prisons and community corrections, let alone between all corrections and, say, all education, if there is a basic dishonesty about what is being done and what could affordably be done?
Perhaps the greatest failing of the present system is on the low end of sentences. It is simply galling to the public sense of justice when a two-year sentence actually allows a person to serve no time at all.

At the minimum

We recommend that a mandatory minimum and maximum sentence be imposed for each crime.
To accomplish this effort, minimum sentence guidelines would need to be identified and imposed. A sentence could be imposed between the minimum and the maximum, but no one would serve less than the stated minimum. In most cases, at least under current prison crowding, the minimum sentence would then become the standard release time.
Such a system will only work if the minimums are set honestly, though, and that will require facing up to the fact that for some, and perhaps many, minor crimes the minimum would be zero.
In cases in which something beyond the minimum was imposed, traditional program and behavior credits could reduce the release date, but not to any time shorter than the minimum sentence. For disciplinary purposes, time could be added to the minimum sentence date.
The state currently employs a sentencing guideline schedule, or grid, for various categories of offenses. The grid, however, makes no distinctions between plea bargains and fully adjudicated cases, thus increasing the pressure toward reduced charges in plea bargaining.
We recommend a more honest approach, with a second grid for negotiated sentences, which would allow for a reduced time rather than a reduced crime.
Once incarcerated, each inmate should have to earn access to privileges. Certain recreational programs, TV, telephones, and visitation should be made contingent upon affirmative efforts, not just traditional "good behavior," and those efforts specifically include general and vocational education.
While rehabilitation programs are important, research should be conducted and a system should be established to identify those inmates who are most likely to benefit from a rehabilitation program and allow for program placement of those individuals first.

Creative punishment

Alternatives to incarceration should be expanded and flexible.
Options should include a program involving work crew activity during the day and home monitoring during the night. This would serve to reduce the number of individuals incarcerated and reduce cost.
Advancements in technology, about which we can only speculate, will also provide the next generation with better ways to deal with sentencing issues. Prisons without walls and implants for monitoring the location of certain types of offenders are both possible and probable in the future.
Judges should have greater leeway for creative sentencing. If punishment is more directly linked to the victim, the community, or the circumstances of the crime, it will be more effective. It will take more judicial latitude to make those linkages in sentencing.
Each inmate should have a restitution plan. However, all the positive benefits promised for restitution, including redress to victims, holding offenders accountable, and reducing recidivism, depend upon the successful completion of orders. To ensure this, a programmatic approach to restitution which assigns responsibility for coordination and quality control to one person is recommended.
We recognize the difficulty of administering substance abuse programs. Much of their success depends on personal motivation, and prison is not the likeliest spot for that.
Still, addictions are the direct cause of an enormous share of crime, and successful efforts to break that link would do far more to reduce recidivism than longer sentences or any of the other automatic answers.
As long as substance-abuse programs remain meager, inside and outside the institution, the criminal justice system will not be dealing with proximate cause. And as long as that is true, it can expect to see the same people come back again and again.

Options for youths
Options should be available to younger individuals in need of social structures that would help instill a sense of responsibility.
Individuals between the ages of 17 and 24 have few options open to them unless they have either prepared early to enter a particular technical field or are ready to go on to college. Neither of these options is particularly relevant for the vast majority of those who wind up instead in the criminal justice system.
Without access to social structure, avenues or purpose in traditional organizations, they tend to look for it in antisocial ways.
The judicial system does not have direct power to provide options, but unless some of them are available, the judicial system cannot succeed.
In addition, judges need more options in dealing with offenders. Alternatives to incarceration, half-way houses, day-treatment centers, home monitoring and community-service work must be provided.

Effective prevention
Communities and the state should focus on programs that have demonstrable positive effects.
As a rule, the earlier a program affects a child's life, the more leverage it has in making a difference. We point specifically, for instance, to parenting education, Head Start, Success by Six, and conflict-resolution programs.
Communities themselves should be rewarded for developing programs that aid in the ultimate prevention of crime. This could be accomplished through grants that would be contingent upon the successful outcome of the program.
The many links between child abuse, neglect, domestic violence, poverty, incompetent training, and future involvement with the criminal justice system cannot be denied. A serious analysis of laws governing abused children and adoption should be conducted. We believe it would support removing abused children from homes earlier and making adoption laws less restrictive.
Early identification of at-risk families and children is essential. In many cases, this can begin on day one, when birth-related circumstances may send clear signals.
Similarly, children and families of incarcerated individuals deserve special attention as at-risk groups. Non-intervention can almost guarantee mirror-image problems in the future.
There is currently a national debate on revising welfare laws that fail to promote self-reliance and responsibility. We recognize the difficulty of crafting legislation that a) aids those temporarily in need of assistance, b) turns the persistently dependent back toward the workaday world, but c) does not harm the children of those who might be turned. Still, a correction is clearly needed.

Prison limits

Correctional resources should be allocated rationally, not by accident.
In the broader view, the basic issue is a discrepancy between the public appetite for corrections and the public willingness to provide the resources.
Prosecutors and judges must fit charges and sentences within state guidelines, but the broader context is one of limited prison space. The decisions are local ones, but the resources are state ones. Under current circumstances, there is no way that local decision-makers can do what they think is "right," because there simply will not be enough prison space to accommodate their decisions.
Sentences, not surprisingly, may vary substantially among jurisdictions. To even things out, adjustments are often made during the parole process. To the public, all this appears often as randomness, and worse, inequity.
The problem is deeper than this, however.

Broader limits

Corrections is more than state prison space.
It includes community corrections, probation and any of the more imaginative alternatives to incarceration that are being tried today, from technology-based home arrest to mandatory substance-abuse programs.
Resources for those programs vary widely, adding substantially to the issue of inequity in corrections.
The new structure of the judicial system that we recommend would help in this regard. A broader judicial district would reduce the present variations.
Likewise, better data from a modern, computerized judicial information system would offer comparisons that could illuminate variations and steer toward equity.
Even with those improvements, though, planning for the rational allocation of corrections resources would remain far short of what it should be.
To begin that kind of planning, money for prisons and money for alternative corrections should not be regarded as two separate issues.
Beyond that, there should be an ongoing discussion of the proper priorities within the broadest definition of corrections. This necessarily means more discussion than has been customary among the judicial, legislative and executive branches.
If local judges make decisions about who goes to prison and who gets drug treatment, but the state budget process determines how many prison beds and treatment programs there will be, only a random shot of luck could make supply and demand match up.
Equity and rationality will require a new collaboration on this issue. The judicial system has traditionally had little voice in the matter of correctional resources. But new forms of resources and new demands on the old ones call for a new kind of discussion between those who provide the resources and those who distribute them.

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