Graeme Wood of The Atlantic recently spent some time wearing the BI ExacuTrack AT, a GPS unit that broadcasts the wearer’s coordinates, to explore the notion of a prison without walls:
According to a recent Pew report, 2.3 million Americans are currently incarcerated — enough people to fill the city of Houston. Since 1983, the number of inmates has more than tripled and the total cost of corrections has jumped sixfold, from $10.4 billion to $68.7 billion. In California, the cost per inmate has kept pace with the cost of an Ivy League education, at just shy of $50,000 a year.
This might make some sense if crime rates had also tripled. But they haven’t: rather, even as crime has fallen, the sentences served by criminals have grown, thanks in large part to mandatory minimums and draconian three-strikes rules — politically popular measures that have shown little deterrent effect but have left the prison system overflowing with inmates.
Wood seems perplexed by cause and effect: we put more criminals in prison for longer, and crime drops. How does that not make sense?
The vogue for incarceration might also make sense if the prisons repaid society’s investment by releasing reformed inmates who behaved better than before they were locked up. But that isn’t the case either: half of those released are back in prison within three years.
It’s almost as if we’re putting them someplace where they can’t do much harm to honest law-abiding citizens — and letting them back out into society is a big mistake.
Our current, bureaucratic system does not deliver swift and certain justice:
Criminals typically differ from the broader population in a number of ways, including poor impulse control, addictive personality, and orientation toward short-term gratification rather than long-run consequences. More than a fifth of all incarcerated criminals are in for drug offenses, and a large portion of the others abuse legal and illegal substances. If one were to design a criminal-justice system from scratch with these characteristics in mind, it would be difficult to come up with something less effective than what we have today.
Take the world of supervised release, for example. With some exceptions (BI clients prominent among them), parolees and probationers know that if they violate the terms of their release, they are unlikely to be caught — and even less likely to be punished. So, impulsive as many of them are, they will transgress, perhaps modestly at first, but over time with growing recklessness, until many have resumed the criminal habits — drug use, theft, or worse — that got them arrested in the first place.
This prevailing condition is something Mark A. R. Kleiman, a professor of public policy at the University of California at Los Angeles and a leading advocate of non-prison alternatives, calls “randomized severity”: some transgressors will be punished for violations, sometimes quite harshly, but others will not be punished at all, whether because their delinquencies go undetected or because judges, police, and parole officers decline to pursue the severe penalties that could apply. In his 2009 book, When Brute Force Fails, Kleiman argues that such capricious enforcement undermines efforts to reduce crime, and moreover that tough penalties — such as the long sentences that have contributed to clogged prisons — don’t do much to help, despite their high cost. The alternative, Kleiman suggests, is a paradigm called “swift and certain” justice, first proposed by Cesare Beccaria in the 18th century: immediate, automatic penalties — though not necessarily severe ones — doled out by credible, identifiable figures.
It sounds almost like an argument for police-administered beatings. That’s not quite the tack Hawaiian judge Steven Alm took:
The basic tenet will be familiar to anyone who has ever trained a puppy: punishment must be consistent and immediate, in order to maintain a clear linkage between transgression and consequences. Alm began by assembling 34 probationers chosen because their profiles suggested they were especially incorrigible. He told them: “Everybody in this courtroom wants you to succeed on probation. But for you not to be in prison means you are making a deal with me to follow the rules. If you don’t want to follow the rules, tell me now, and I will send you to prison.”
The rules were simple: each probationer had to call in to the courthouse every weekday to find out whether he was required to come in for an observed urine test. These tests occurred frequently, and if a probationer ever failed a test or failed to report for a test or a meeting with his probation officer, he was locked away for two days and hauled before the judge for immediate continued sentencing. The justice system under Alm was a consistent and unforgiving machine, dispensing instant punishment for every transgression. The effect was to make life on the outside a little more like life on the inside, with strict, regular monitoring of everyone in the system. If you used illegal drugs, you would be caught.
Alm worked with Kevin Takata, a supervisor in the prosecutor’s office, to come up with a form that reduced the paperwork time for demanding a probation modification from hours or days to minutes. And rather than require a complete overhaul of the terms of a violator’s probation, the judge simply handed down jail time. In practice, the sentences were not especially long — days or weeks, in most cases — but, as Kleiman argues, it was not the duration of punishment but the certainty that was crucial.
The results of Alm’s program, called Hawaii’s Opportunity Probation with Enforcement, or HOPE, astonished everyone. The probationers shaped up quickly, and over time they showed remarkably little inclination to go astray. The urine tests came back dirty a tenth as often as before. “We discovered that most of these guys can stop using on their own,” Alm explained, given the discipline imposed by HOPE. For most probationers, the strict observation was as good as, or better than, any drug-treatment program. It generally took no more than one stint in jail before an offender realized that the consequences of a relapse were real; second violations were unusual. And according to a study co-authored by Kleiman, recidivism — that is, arrests for the commission of new crimes, rather than just violations of probation — dropped by half.
Who could have imagined that a justice system with consequences would change behavior?