Overcoming the Politics of Fear
By David J. Krajicek | August 29, 2016
Thoughtful crime analysts who hoped that the nascent justice reform movement was a sign that the country was moving beyond the politicization of crime are now watching slack-jawed as the 2016 election season enters its endgame stage.
Reforms are mostly on hold, and the old tough-on-crime tropes are back in vogue with Donald Trump, the Republican presidential nominee, and his crime goombah, former New York mayor Rudy Giuliani, whose frothing exhortations (at the Republican National Convention and on TV news shows) about the menace of lawlessness have prompted some to question each man's grasp of statistical reality.
William R. Kelly, a University of Texas at Austin criminologist, dropped a new book, The Future of Crime and Punishment: Smart Policies for Reducing Crime and Saving Money (Rowman & Littlefield), into the middle of this.
He says Trump is plowing a well-rutted campaign furrow.
“Trump is simply fomenting and leveraging fear as a political tactic—fear of terrorism, fear of Muslims, fear of immigrants, fear of crime,” Kelly tells The Crime Report. “Unfortunately, it works. Fear is a powerful political tool.
“First, tell them they are afraid, then ride in on the white horse and reassure them by telling them what you are going to do about it. I must say, the emphasis on crime and insecurity caught me by surprise since the facts just don’t support it. Crime barely registers on a poll listing the most important problems facing the U.S. today.”
Kelly’s book gives a nuanced, contextual view of criminal justice today—and how we arrived at bulging prisons as a prohibitively expensive, counterproductive, one-size-fits-all solution to crime.
He says the country has been cocooned in the archaic “fiction” that prison and stern retribution somehow fix offenders by spurring personal redemption. A smarter, more economical approach would key on vast expansion of rehabilitation, job training, mental health care, and diversion from prison for most offenders, Kelly says.
He spoke about his latest book with The Crime Report’s David J. Krajicek.
The Crime Report: Your book points out that crime is relatively low. But if you watched the Republican convention, you saw Trump and Giuliani portray America as a crime dystopia. How does a rational, scientific approach overcome this fundamental misunderstanding (or political duplicity)?
William R. Kelly: Fear of crime already is propped up by the relentless reporting of violent crime on local TV news and other media…But it is also driven by what prominent people say. I did watch Trump and Giuliani, and I saw Richard Nixon do the same thing years ago. One big difference is that when Nixon painted a bleak picture of crime and disorder in the late 1960s, there was a basis in reality. While the public may have a number of things to feel uneasy about today, objectively, crime is pretty far down the list.
TCR: How would you convince a Trump enthusiast that crime is not so bad and that, even if it were, tax money is being wasted on a justice system that doesn’t work?
Kelly: First, I would offer objective information like crime rates and crime trends to show that crime is near an historic low. I would then point out recidivism rates as a measure of the ineffectiveness of the criminal justice system…Then I would tell them how much this failure costs them. By the time I get to dollars and cents, I may have their attention.
TCR: Justice reforms are being pushed aside this election season. Does the specter of Willie Horton still hang over elections?
Kelly: The most visible criminal justice reform proposals are at the federal level, and they have been brushed aside mainly because of the political paralysis in Congress. That situation is likely aggravated by the confusion the Trump candidacy has caused in the Republican Party. At the same time, some states have begun to move in the direction of reforming sentencing laws and focusing more attention and resources on things like drug treatment. These are steps in the right direction, but they are piecemeal and lack a big-picture vision of reform.
The Willie Horton effect lingers even in the current environment of low crime rates and much discussion about reforming sentencing and over-incarceration. “Tough on crime” is still a political selling point. It seems silly, but it is easy to do and apparently still resonates among some segments of the electorate.
TCR: Why are state-level reforms important?
Kelly: The vast majority of crime and criminal justice happens at the state level, so the greatest impact of meaningful reform will be realized there. At the same time, well-considered, comprehensive federal reforms can set an agenda and vision for the states, in much the same way that federal tough-on-crime policies helped set in motion the adoption of severe sentencing and punishment policies 50-plus years ago. The obvious problem is that politics has led to an intractable standoff in Congress, much to the detriment of public policy.
TCR: Can reforms win an economic argument: the “revolving door of failure,” as you call it, vs. smarter spending?
Kelly: I think so. We can have endless debates about the morality or fairness of tough-on-crime policies or the inherent logic of punishment as the solution for bad behavior…But the best way to get someone’s attention is show them how it affects their pocketbook. Inefficiency and waste seem to get peoples’ attention. The real benefit is that we can be safer and spend less money.
TCR: You suggest that mass incarceration has created “an enormous class of individuals who are permanently dependent on public assistance.” Explain.
Kelly: One of the major failures of U.S. criminal justice policy is that we do very little to address many of the reasons individuals get involved in crime and the justice system. We know that offenders enter the system with a variety of criminogenic or crime-related conditions, disorders and impairments.
The vast majority have substance abuse disorders. Nearly 40 percent have a diagnosable mental illness. Significant numbers present with neurocognitive disorders and impairments (60 percent of prison inmates have had at least one traumatic brain injury), and intellectual deficits. Poor education, employment problems and homelessness are also common. The revolving door of the justice system annually sends into the community hundreds of thousands of individuals from prison, jail and community supervision in the same shape if not worse than when they came in.
Restrictions placed on ex-offenders make it quite difficult to find legitimate employment and housing, among other things, and they become prime candidates for public services and public assistance…Yet this patchwork of social supports and financial assistance do not usually remedy the underlying problems. As these individuals churn repeatedly in and out of the justice system, they become permanently dependent on public assistance. That is an unnecessary waste of public funds.
TCR: Explain your view of prison’s counterproductivity.
Kelly: The primary job of incarceration is security. Rehabilitation is often an afterthought or a luxury that is the first to go when budgets get tight. What most inmates get is loss of liberty. Relatively few get any kind of effective rehabilitative programming.
Prison is not an environment that is conducive to recovery.
When individuals enter prison with a mental health problem or neurocognitive impairment, the tendency once incarcerated is decompensation. They get worse. Prison is not an environment that is conducive to recovery. Those with [such] disorders tend to be victimized in prison, have trouble following rules, and often end up in administrative segregation or experience other punishments while incarcerated. Many are fragile to begin with and the experience of incarceration exacerbates that condition. There is evidence that incarceration not only exacerbates mental health problems; it also creates them.
TCR: You say that our system has been rooted in “anger-based decision-making” that led to “a very long, expensive binge.” Explain.
Kelly: The premise for tough sentencing and punishment policies has been retribution, an eye for an eye, just deserts, harm-based sentences and punishments. The simple calculus of how much harm you perpetrated as the basis for the severity of your punishment is a retributive approach. Add in mandatory sentences, restricted parole laws and policies, and habitual offender laws, and it is clear that we have been laser-focused on enhancing the severity of punishment.
The key players have been legislators, who write tough sentencing laws, prosecutors who make charging decisions and sentencing recommendations, and judges who hand down the sentences. Anger and toughness have pervaded the decision-making process and have resulted in dramatic increases in the severity of punishment. Just listen to election-year rhetoric, and it is not hard to see the link between tough and angry.
A more rational approach is to identify and get off the streets those that we are truly afraid of. Anger has been very expensive in actual justice system costs and a variety of social costs.
TCR: As a fan of cheesy Warner Bros. crime melodramas, I appreciated your suggestion that our crime policy has been stuck in one of those “black-and-white 1940s redemption movies.Kelly: A classic story line is a guy makes a bad decision which results in a crime, an arrest, and finally prison. The purpose of prison in the story is to contemplate one’s life, where things went wrong, and then making the decision to change those things. After a period of time, the guy gets out of prison and goes down the straight-and-narrow as optimistic music plays in the background.
That is the world of fiction. The reality is that the vast majority of offenders incarcerated in U.S. prisons cannot contemplate their way out of criminality. Punishment does little to change people for the better. The effects are generally short-lived because punishment doesn’t address criminogenic disorders or help with life on the outside…This fiction is what got us where we are today – in an endless cycle of arrest, convict, punish, release, repeat.
TCR: How do we get beyond Jimmy Cagney as our national criminal justice icon?
Kelly: Quit pretending, hoping or assuming that punishment works. The world is much too complex for such naïve solutions.
TCR: Describe the path forward toward a less costly, fairer, more efficient system.
Kelly: It begins with diversion on a scale unimagined in the current criminal justice system. We must balance behavioral change against risk and divert as many individuals with significant criminogenic problems, disorders and deficits and acceptable risk levels to treatment and rehabilitation programs. And these programs must be designed, implemented, operated and funded according to the inventory of evidence-based practices…It is not for lack of knowing what to do. It is a matter to prioritizing effective behavioral change over warehousing. Science must play a prominent role in policymaking, and elected officials must summon the political courage necessary to turn the ship around.
TCR: Is the hands-on, case-management approach of diversion and rehab more expensive than one-size-fits-all punishment?
Kelly: Rehabilitation, when properly implemented, is not inexpensive. At the same time, cost comparisons and cost-benefit analyses show that most rehabilitation programs are less expensive than incarceration. What many policymakers fail to appreciate is that every time an offender reoffends, we incur a variety of costs, including law enforcement, jail, the prosecution, pre-trial services, the court, public defenders or appointed counsel, and corrections.
When this pattern is repeated over and over again, the financial cost per offender is staggering. If we can interrupt that cycle through changing the primary, underlying circumstances and disorders associated with offending, we not only save criminal justice costs, we avoid many of the social costs such as victimization, financial losses due to property and violent crimes, etc.
Not only can rehabilitation be cost competitive with punitive solutions in the near term, over the longer term, the cost differential is substantial.
TCR: Police and the courts have been tasked with dealing with problems that once were part of the social welfare structure. Does this help explain the poor relations between police and minorities in many big cities?
Kelly: Yes, institutional failures and inadequacies have resulted in many disordered and disadvantaged individuals ending up in the criminal justice system, the system that just can’t say no. This is not something criminal justice administrators asked for. But it is the result of a number of very deliberate decisions made about public funding for health care, mental health care, substance abuse treatment and so on. This reality goes a long way in explaining the revolving door that has come to define the American criminal justice system.
What we are seeing today, with relations between urban minorities and local police, is little different from what we saw in the 1960s, with riots and civil disorder that began in Watts, Los Angles in 1965 and encompassed essentially every other urban area in the nation. I think the tactics have changed somewhat (sniper shootings of police) but I suspect the grievances are essentially the same….Granted, African-American poverty rates have declined since the 1960s, but today 27 percent of all black men, women and children live in poverty, compared to 11 percent of all Americans. The massive influx of minorities into the U.S. prison system leads some to suggest that the management of race relations depends heavily on the criminal justice system. All of this aggravates police-minority relations.
TCR: The $64,000 question of your book is the same question that criminologists have pondered since Robert Martinson in 1974: What works? You’ve been researching this subject matter for several decades now. Can you summarize what works—and, as importantly, what doesn’t?
Kelly: Whether it makes sense or not, increasing the severity of punishment does not deter reoffending because it does nothing to change the underlying criminogenic circumstances, disorders and impairments related to criminality.
Please do not misunderstand. This is not an apology for crime. I’m not saying we should shut down the correctional system or let everyone out of prison and jail. But we now have evidence-based programs, interventions, and procedures that can significantly alter behavior. Drug diversion courts and drug treatment programs work when properly designed, operated and funded. There are a variety of other diversion programs that keep offenders from going deeper into the justice system while providing interventions to address disorders and deficits. However, rehabilitation programs often are scarce, under-funded, poorly designed and operated and under capacity…
The real question is not so much what works as it is how do we get what works to criminal offenders. This depends largely on the priorities of elected officials and policymakers. For the past several decades, their decisions and policies appear to reflect ambivalence about reducing crime, a penchant for being seen as punitive and retributive, and a priority on getting re-elected.
David J. Krajicek (@djkrajicek) writes about crime and justice for The Crime Report, AlterNet, the New York Daily News, and others. He welcomes comments from readers.
Review of Criminal Justice at the Crossroads, Los Angeles Review of Books
Criminal Over-Incarceration
AUGUST 4, 2016
CRIMINAL JUSTICE is a hot topic of late. For several years, at least since the 2012 vigilante killing of Trayvon Martin, police shootings and other issues relating to the disproportionate use of deadly force against African Americans have dominated front-page news. With the sedulous prodding of activists, including those associated with the Black Lives Matter movement, the intersection of race and policing has also moved to the forefront of the national political conversation, to the point where each of the major Democratic presidential candidates, and some of the early Republican contenders, promoted reforms during this election cycle that would have been unthinkable, or at least politically noxious, in the lock-’em-up era of the late 20th century.
Executions are on the wane, even in the more enthusiastic death-seeking states like Texas and Virginia. Without empirical support to vouch for the purported benefit of capital punishment as a deterrent to violent crime, and in light of significant evidence that it has been imposed arbitrarily, often in a racist fashion, and that it has likely taken the lives of people who could and should have been proven innocent, public support for the death penalty has continued to fall, more or less steadily, since the early 1990s.
State and local governments are leading a moderate drawdown in the decades-long quagmire known as the War on Drugs, and the US Department of Justice has begun to moderate its prosecutorial standards for low-level drug offenders. As of this writing, at least 24 states have, to some extent, authorized the distribution and use of marijuana for medical purposes, and four states and the District of Columbia have legalized the production, distribution, or use of recreational marijuana as a matter of state or local law.
Even in the fractured and deadlocked arena of federal policymaking there are hints of consensus about proposed reforms that would improve some of our flawed crime control policies. The usual legislative challenges notwithstanding, and in spite of the extraordinary absurdities of the current political environment, criminal justice reform may be the one (and perhaps only) major area of domestic concern where congressional action is possible in the near future. Several key members have framed the recent heroin and opioid epidemic as a problem in need of treatment and prevention solutions, and bipartisan legislation has passed the judiciary committees in both houses that would, if enacted, reduce mandatory minimum sentences for many nonviolent drug offenders.
These developments, however riddled with caveats and potential pitfalls, are indicative of a broad and somewhat rapid shift in attitudes about crime and punishment among policymakers and the American public. The question of how a safe and humane society should effectively punish, deter, and rehabilitate criminal offenders is now being revisited in a serious way, and there appears to be a budding consensus that we have, in many respects, been doing it wrong.
In Criminal Justice at the Crossroads (Columbia University Press, 2015), William R. Kelly of the University of Texas at Austin puts some flesh on the bones of that consensus, and he provides a meticulous and compelling recitation of the empirical evidence that supports it. The titular “crossroads” represents a political landscape where falling crime rates, soaring corrections budgets, and public interest in criminal justice issues have presented a unique opportunity for evidence-based reforms to take root. Kelly recounts how the United States became the world’s leading incarcerator, and how political figures like Barry Goldwater and Richard Nixon, with the eager support of Republican and Democratic legislators, initiated a decades-long conversation about “tough” and “soft” approaches to street crime. But now, with roughly 2.5 million Americans in jail or prison — more than one percent of the adult population — and with all of the financial and human costs that come with a carceral state, questions about “smart” and “effective” policies have also been invited into the conversation.
Throughout the decades of the United States’s incarceration boom, libraries’ worth of academic studies have been conducted to examine the efficacy of popular crime control policies and their alternatives, and Kelly has done the academic yeoman’s work of condensing much of the existing research into a clear, compelling, and highly readable series of arguments for specific (and sometimes immodest) changes. These proposals include the development of specialized drug and mental health courts, pre-booking diversion programs to treat mentally ill offenders and forestall the need for an arrest in some cases, and a drastic alteration of the legal standards for criminal sentencing that would preclude considerations of “deterrence” as a purported benefit of lengthy prison sentences. Kelly also addresses some of the more common proposals that criminal justice reform advocates have backed in recent years, including the decriminalization and legalization of marijuana and other illegal drugs, and his chapter on the War on Drugs and its effects should be required reading for any public official who cares about crime reduction, government spending, or both.
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Crossroads begins with an account of how extreme poverty and its attendant ills, including frequent exposure to trauma, abuse, and environmental toxins, can impact children’s development and impose neurocognitive and developmental deficiencies that contribute to future criminal behavior. With reference to decades of scholarly studies, Kelly posits that lengthy prison sentences are utterly ineffective as a deterrent for many potential offenders because they do nothing to correct or alleviate those factors. In fact, incarceration is often counterproductive as a crime reduction strategy because it aggravates the conditions of financial and social desperation that can trigger blue-collar “street crime” activities. As Kelly puts it, “once someone enters the justice system, his or her options, opportunities, and alternatives diminish rapidly, simply as a consequence of their justice system involvement. These restrictions and ongoing barriers tend to further perpetuate a life of crime.”
Because prisons and jails can’t and don’t do much to correct the problems that underlie many of their inmates’ criminal behaviors, Kelly argues that a more effective approach to crime control will require “resources and expertise that historically have not had much involvement in the American justice system.”
At the end of the day, this will involve a substantially different way of approaching the business of criminal justice. It will be an approach that is designed to understand and identify the complexity of reasons why criminal offenders are criminal offenders (the diagnosis phase); address the relevant, primary criminogenic deficits and conditions (the treatment phase); and provide the ongoing supports necessary to retain the treatment effects (the continuing care phase). As much as we may not like to put the US criminal justice system in this position, it is the only approach that will cost-effectively enhance public safety, reduce victimization, and reduce recidivism short of eliminating the structural conditions and institutional failures that play a large role in crime in this country.
It sounds like a long haul, but Kelly takes what might at first seem to be a series of aspirational bromides and carries them a long way down the field. His first major point of attack is the way in which the criminal justice system is funded. “The economies of many smaller, local communities in the United States are heavily dependent on prisons as economic drivers,” and private prison companies and their shareholders also benefit from lengthy prison sentences, low per-prisoner expenditures, and high recidivism rates. In addition, while state governments ordinarily pay to house inmates in jails and prisons, rehabilitative and diversion programs (which seek to keep low-level offenders out of jail where possible) are largely funded by local and municipal agencies. As a result, there is a clear financial incentive for city and county authorities, who are responsible for most arrests and prosecutions, to skimp on diversion and treatment costs and let the state pay for the resulting rise in the prison population. But Kelly also explains how some jurisdictions have successfully broken that mold and have implemented performance-based funding schemes through which the state rewards cities and counties with low recidivism rates, simply by passing along the money it saves through lower prison costs. So long as they are somewhat thoughtfully structured, it appears that government spending schemes can promote virtuous cycles that advance public safety while also saving taxpayers upward of $60,000 per year for each person who does not reoffend and return to prison. (As for what would become of the many towns and companies that are financially dependent on prisons and jails, Kelly unfortunately doesn’t present much in the way of a compelling answer, other than to allude to the broader fiscal benefits of a lower incarceration rate.)
In addition to this primer on the economics of mass incarceration, Crossroads describes how a bureaucratic bias toward stasis can undermine or forestall the sort of policy reforms that Kelly supports. This bias affects the work of prosecutors, courts, probation and parole offices, and even some of the less-effective diversion programs. There are quotidian political concerns that can push elected prosecutors and judges toward a reflexively “tough” approach to criminal sentencing, especially in “high profile” cases. But Kelly also describes how a diffusion of responsibility and lack of accountability among many of those who work in criminal justice can hamper progress toward whatought be the overall goal: to prevent criminal behavior, and to punish it when necessary, as necessary.
In oversimplified terms, the police hand off the offenders to the prosecutor, the prosecutors hand offenders off to the judges, the judges hand them off to corrections, corrections often hand them back to the court for revocation, then back to corrections, then when corrections is finished, the cycle typically begins over again. And again. And again.
Fortunately, Crossroads is more than yet another diagnosis of the mass incarceration phenomenon. While Kelly doesn’t pull many punches in his recitation of the individual, societal, and economic harms caused by decades of over-incarceration, his larger goal is to promote remedies, and perhaps the greatest virtue of his book is its tendency to persuade by methodology and to appeal to the reader’s sense of reason. Kelly gives his potential detractors and skeptics the benefit of the doubt, and he concedes that some of his proposals might sound counterintuitive to people who haven’t spent quite as much time with the related research. “The sentiment is understandable,” Kelly writes, “break the law, get help. What makes sense about that?” While foregoing the easy route of a spleen-venting diatribe, of which quite enough have been published in recent years, Kelly takes the arguments against reform head-on. With ample references to empirical evidence, public budgets, and (at some points) public opinion surveys, he shows exactly what makes sense about rehabilitation as a response to criminal behavior: “[i]t makes little sense sitting where we sit today to take the hard line and blame offenders en masse for their crimes and deny them all but punishment. That is counterproductive and it compromises public safety.”
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“Criminal justice” is a broad topic, encompassing a host of sub-issues and side issues, and readers of Crossroads would benefit from a brief introductory note defining what the book is notabout, because many of Kelly’s arguments make sense only in the limited context in which they are presented. In an epigram, Kelly reproduces the following quotation, attributed (apocryphally) to Dostoyevsky: “The real measure of civilization in any society can be found in the way it treats its most unfortunate citizens — its prisoners.” But Crossroads is not about prison conditions, inmate abuse, solitary confinement, or any of the other issues relating to the treatment of prisoners as prisoners. Neither does Crossroadsaddress questions about street policing, or the fairness of the investigations, prosecutions, and criminal trials that precede the sentencing process. And the lessons that Kelly has drawn from the research are somewhat limited by the fact that they are, for the most part, applicable only to one type of offender. WhileCrossroads is an ambitious work, its scope is largely limited to the issues surrounding the sentencing and rehabilitation of poor, mentally ill, and/or drug-addicted offenders who commit low-level, nonviolent, blue-collar crimes. There is little reason to think that Kelly’s analysis would apply to the kinds of punishments that are appropriate for violent offenders, organized crime leaders, drug trafficking kingpins, or white-collar criminals who commit predatory crimes from positions of relative economic privilege. It is particularly difficult to imagine Kelly’s arguments having any relevance at all to, for example, a scofflaw bond trader or a corrupt politician, whose offenses are rarely tied to underlying conditions of poverty or desperation, and for whom the specter of a prison sentence might have a real deterrent effect.
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I used the word “readable” above in describing the arguments laid out in Crossroads, and while this would ordinarily be small praise, I have used it here because in his acknowledgments Kelly notes that he is currently in the process of writing a new book “about criminal justice reform for a broader audience.” This is good news, but I would quarrel with the implied premise thatCrossroads is itself unfit for readers outside of sociology or criminology departments. One doesn’t need a specialized background or education to have an interest in or opinions about the issues of crime and punishment, and while Crossroads delves relatively deep into the weeds of some of those issues, it remains accessible to a lay audience.
To be sure, Crossroads is a lengthy and fact-heavy volume, with enough endnotes, citations, and statistical summaries to keep it off most beach reading lists. My only stylistic complaint is that Kelly often previews or recaps an argument or analysis with the sort of unnecessary roadmaps that often litter academic writings: “[A]s I will show in chapter 2…,” “In this chapter I explore…,” and “I now turn to…” It’s a distracting habit that interrupts the flow of argument, pads an already high word count, and gives the reader little credit. Otherwise, there is little else about Crossroads that should be off-putting to the broader public.
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In recounting the last several decades of policy choices that have spawned history’s largest system of mass incarceration, Kelly makes his many disappointments clear. But Crossroads is no polemic, and I can happily report that it does not condescend to or make villains of those who hold opposing views about crime control and sentencing. It is a rare book about a contentious set of issues that has the potential to change minds, and if not, to at least inform them. For those who question the efficacy of prison alternatives for low-level criminal offenders, Kelly’s work deserves a close review and, if available, a pointed rebuttal. And for those who are already among Kelly’s converted, his summary of the supporting evidence provides much more than the simple comfort of self-affirmation.
Criminal sentencing is much too important of an issue to still be influenced by vague notions of what counts as “tough on crime,” and it does not benefit public safety to ignore evidence-based strategies that can help criminal offenders overcome their individual criminological influences. “Criminal justice reform” has gained significant traction in recent years, and with enough empirical ammunition and political willpower, smart and compassionate strategies like those presented in Crossroads may finally stand a fighting chance.
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Lucas Anderson is an attorney specializing in criminal defense and civil rights litigation.