Posts Tagged ‘punishment’

Why Prison?

Thursday, April 14th, 2016

Yesterday, I was raptly following the sentencing of Matthew Keys as it was live-tweeted by Sarah Jeong. If you haven’t read the dozens of articles about it today, the short story is Mr. Keys was sentenced to 2 years in federal prison, for sharing his login info online — info that another person then used to change one page of the Los Angeles Times website, until an editor spotted the vandalism and changed it back about 40 minutes later.

That’s right, he will lose two years of his life for sharing his login info with someone else.

I’ve written before on the insanity of the law he’s said to have violated — the Computer Fraud and Abuse Act — a law that is so vague and overbroad that I am certain every person reading this has probably violated it by now. Or can be said to have violated it by a federal prosecutor with nothing better to do. Which in the case of this law is the same thing. But this time I’m not here to rage against overcriminalization, incautious drafting of criminal legislation, or the abuse of prosecutorial discretion in choosing to charge people with offenses that nobody in their right mind thinks of as crime.

I’m here because, two years? Seriously?

The criminal justice system has a very limited toolbox. If someone has committed a crime, they get punished. That’s it. Punishment is harsh. It’s the almighty State asserting its control over your body, your life, and your stuff. No matter what the punishment is, the State is grabbing you and doing something nasty to you.

Sometimes the punishment can be light — “go forth and sin no more, but if you do you’re in worse trouble.” Or a fine. That makes sense. Most people aren’t criminals. We don’t have to worry that they’re going to violate the law again. They’re traumatized enough by the fact that they were arrested and churned through the machine of criminal justice — they’re never going to see the inside of a courtroom again, if they can help it. The supervisory forms of this “light” punishment can vary in the severity of supervision. In a consent decree or a conditional discharge or an adjournment in contemplation of dismissal or what have you, it’s basically “don’t get in trouble for a year, but if you do….” With a drug program, it could be “go to treatment, kick the habit, and get your life in order. Oh, and don’t get in trouble again.” Then there’s probation, which technically means “prove we can trust you not to get in trouble again.” Probation usually carries lots of conditions that limit your liberty and freedom to varying degrees. Depending on how intensive your supervision, it could range from showing up at the probation office to sign in and leave once a month, to random unannounced home invasions and crazy-strict limitations on what you’re allowed to do and where you’re allowed to be and who you’re allowed to hang out with. But at least you’re still walking around.

Prison, on the other hand, is a complete theft of your liberty. Your life is taken away from you. Your job is gone, so’s your home, probably (you’re not paying that mortgage any more), your family can’t see you except under the most limited and difficult conditions, and of course you yourself are caged up under armed guard for the next X years of your life. Maybe the rest of it. If you get out, unless you’re very lucky, your life as you knew it is still over. You’ll have to find another career, probably. One you’re not trained for. One that doesn’t mind if you’ve done time. Kind of a limited selection. You’ll probably be on parole or post-release supervision even after you get out, which is like probation to prove you deserve to be on the outside (and if you screw up, back in you go). God forbid you peed in an alley and got stuck on a sex offender registry as well.

Prison is literally stealing years from your life, and ruining the ones you have left.

And it’s the default penalty for many prosecutors. Especially federal prosecutors. Especially those who lack the perspective, understanding, and wisdom we demand of them in return for the boundless discretion we’ve granted them. Especially those who have gotten so used to throwing numbers around that they’ve forgotten the meaning of what they’re even doing.

This guy Matthew Keys, for example. The feds literally asked the judge to put him in prison for 5 years, because he shared his logon info. They sincerely and honestly argued that this was the right and just penalty for a crime that (1) is only a crime because they said so, and (2) didn’t hurt anyone. (The loss calculation was basically the newspaper’s cost of fixing their own internal security issues that let this happen. If you can even call that harm.) The judge gave him 2 years, apparently following the time-tested tradition of judges “splitting the baby” when they can’t think of a principled reason for imposing a particular punishment.

Even if you believe what Matthew Keys did was so bad that it deserves to be a crime, so bad that it deserves to be punished by the almighty State, nobody with an ounce of perspective can believe that the right thing to do is take away the next two years of the guy’s life, and ruin the rest of it.

But that’s what we do hundreds of times a day. He’s no exception. He’s the rule.

 – – – – –

Keep in mind that prison wasn’t always the default punishment, like it is now.

Back in the day, you got locked up until sentencing. To make sure you’d still be around for trial and punishment. Your imprisonment wasn’t your punishment. Punishment for most crimes consisted of a fine. The State took away your stuff. For the most severe crimes, there was corporal punishment — the stocks, the lash, the noose. And that was that.

Prison is what we started doing when we decided to get civilized. It let us use numbers to carefully balance the weight of your crime with the severity of the punishment it deserved. Instead of harshly whipping your bloody back, we could do the civilized thing, decide this crime was worth 90 days of jail, and tada!

Conceptually, this works fine if you think of the purpose of punishment as “an eye for an eye.” That’s retribution — long considered the civilized approach. (Unlike retaliation, which lets me cut off your head because you cut off my toe, retribution is all about being proportionate.)

But problems start when you begin trying out newer kinds of civility. What if punishment is now intended for deterrence, perhaps? Making sure this guy never wants to commit that crime again? Making sure everyone else thinks twice before doing it? Well, hell. We gave that guy 90 days for stealing, and people are still stealing. Better make it a year. Hell, that’s not working, better make it two. Five? At least the public likes it and we’re getting re-elected. Looking tough on crime’s not bad. It’s not as if it’s hurting anyone who matters.

Or most civilized of all: punishment is for rehabilitation? Look, we gave you a year to mend your ways the first time. Gave you three years the second time. You’ve done it again? Three strikes, buddy — you’re out. We’ll keep you in there until you’re cured, but you’re uncurable, so here’s a life sentence. (There’s also a bit of “removal” there — we can’t trust you to walk our streets, so off the streets you go. But rehabilitation is the best argument for a sentence with no fixed end date — you can’t get out until we say you’re no longer a threat. It has nothing to do with the innate justice of proportionality.)

 – – – – –

It’s all gone wrong.

In fact, I’m willing to bet money that if we conducted a rigorous survey of Americans right now, and asked them if they’d rather get X years in prison or Y lashes and go home, they’d take corporal punishment by a large margin. The brutal and uncivilized penalty would be greatly preferable to the cruelty of our civilized imprisonment.

The blame lies with the politicians who ratchet up the penalties, with the prosecutors who’ve lost sight of what they’re doing, and the judges who go along with it.

And with you and me. For not stopping it in its tracks. And for not shouting loud enough — as is proven every day with sentences like that of poor Matthew Keys — to put and end to it now.

Next time you make an offer, consider a sentencing argument, or read of a sentence in the papers, take a moment and ask yourself: why prison?

…Seriously?

Prison Begets Prison… and the point is?

Friday, November 5th, 2010

 

Those of us who work in the criminal justice system — whether lawyers, judges, social workers or whatever — are fairly cognizant of the fact that the vast majority of people who get arrested aren’t really a problem for society.  Depending on the stats you’re looking at, for something like 83% of the people who get arrested, that first contact with the criminal justice system is their last.  They don’t re-offend, period.  Maybe they’re good folks who just made a mistake.  Maybe they got scared straight.  Maybe their crime was the result of a circumstance that will never occur again.  Whatever the reason, we never see them again.

As we all pretty much recognize this, we tend to give first-timers (well, not murderers, obviously) some benefit of the doubt.  We give the first-arrest guy a chance to prove that, though he may have committed this crime, he’s not really a criminal.  Maybe he gets a consent decree/adjournment in contemplation of dismissal.  Or a conditional discharge, or some period of probation.  Community service.  Something, anything, other than jail.  Some kind of penance, whereupon we can confidently give our blessing and say “go forth and sin no more.”

But what about those who come back?  What about that 17% who re-offend?

They keep coming back, that’s what.  They may have gotten probation last time, but they’re soon going to find themselves in prison.  And once they get out, they tend to re-offend and get sent right back.  Usually within three years, but often within a single year.

The California Department of Corrections and Rehabilitation just released a thorough statistical analysis of these re-offenders.  You can check it out here.  It doesn’t really have much to say about why people re-offend, but it has some useful data on who re-offends.  Good breakdowns by various demographic categories such as age, race, sex, nature of offense, and mental illness.  Also some eye-opening stats on how soon they re-offend, how often, and how long they stay in prison.

A lot of conclusions can be drawn from these stats.  The wrong conclusions can be the most tempting — to (more…)

D.C. Circuit: No Extra Prison Time for Rehabilitation

Tuesday, July 28th, 2009

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The D.C. Circuit weighed in today on an important issue that has split the circuits evenly: whether a sentencing court can give extra time in prison, to increase the opportunity for rehabilitation of the prisoner. Some circuits say it’s fine, some say it’s prohibited by law.

-=-=-=-

18 U.S.C. § 3553 says there are four purposes of criminal punishment:
(1) “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;” [retribution]
(2) “to afford adequate deterrence to criminal conduct;” [deterrence]
(3) “to protect the public from further crimes of the defendant;” [removal]
(4) “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” [rehabilitation]

18 U.S.C. § 3582 says that a sentencing court has to consider those four purposes of punishment in deciding whether to impose a prison sentence, and in deciding how long a prison sentence should be. However, it adds that the court must recognize “that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

In other words, the law implicitly recognizes that prison, in and of itself, doesn’t rehabilitate people. Departments of “Corrections” have nothing to do with correcting people’s behavior. (It’s Orwellian, isn’t it? And so is the concept of incarcerating people for the purpose of re-education.)

This comes as no surprise to anyone with any experience with the criminal justice system. Imprisonment does not make people stop committing crimes. Studies have shown that roughly 83% of people who get arrested will never get in trouble again after that one single encounter with the system. Either they’re scared straight, or their behavior was a one-off exception to an otherwise blameless life. This is why we have consent decrees, adjournments in contemplation of dismissal, and the like. Most people, if given a second chance, will never get in trouble again. Incarceration is completely unnecessary to “rehabilitate” these people.

The other 17% or so? They keep coming back. Incarceration does not stop them from getting in trouble again once they get out. It is stupidly obvious that prison does not rehabilitate repeat offenders.

Rehabilitation is not so much an aspect of punishment, so much as it is an opportunity incidental to it. There certainly are life-altering programs, typically long-term programs, that can get people out of drug dependencies or ways of life conducive to criminal behavior. But these are exceptions, not the rule. They change circumstances, not behavior. And they can sometimes be best administered in an incarcerated setting — but often they are just as effective in a non-jail setting.

Meanwhile, the circuits are split on just what § 3582 means when it says “the court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall . . . [recognize] that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

Some circuits — like the Fifth, Sixth, Eighth and Ninth Circuits — say that the court should not decide whether to impose prison based on considerations of rehabilitation, but it is okay to increase a prison sentence for the purposes of rehabilitation. Other circuits — like the Second, Third, Tenth and Eleventh Circuits — say that courts shouldn’t increase prison sentences, either.

-=-=-=-

Today, the D.C. Circuit joined the Second and Third Circuits in saying that § 3582 prohibits courts from increasing a prison sentence for the purpose of rehabilitation.

In re: Sealed Case*http://pacer.cadc.uscourts.gov/common/opinions/200907/08-3029-1198396.pdf*, No. 08-3029 (July 28, 2009) dealt with an older defendant with a long rap sheet and a drug addiction. His name is sealed because at one time he had tried to cooperate with the feds, albeit unsuccessfully. The defendant pled guilty to selling less than five grams of heroin. Ordinarily, with his criminal history category and acceptance of responsibility, this would have given him a sentencing range of 24 to 30 months. However, what with his felony record and all, his Guidelines range wound up being 151 to 188 months (12.5 – 15.5 years).

This is only advisory, of course, and the court then weighed the various § 3553 factors to figure out what sentence to actually impose. The judge said his recidivism was due to his drug addiction, and the case only involved a small amount of drugs. The judge added that the defendant could benefit from some of the programs available in prison, and that these “would actually be more available and more useful for the defendant over a somewhat longer period of time than it would over a very short period of time.”

In the end, the judge went down to a sentence of 132 months (11 years), along with a recommendation that the defendant be admitted to the prison’s “500-hour” drug treatment program.

The defendant appealed, saying that the judge would have given him a shorter sentence, but increased the sentence for the purposes of rehabilitation, and that was improper. It urged the Circuit to adopt the rule of the Second and Third Circuits.

The government, on the other hand, said they should adopt the Ninth Circuit’s rule instead, permitting increases in sentencing for the purpose of rehabilitation.

In its 2-1 ruling today, the D.C. Circuit said that the plain language of the statute bars courts from seeking to achieve rehabilitation through imprisonment. A defendant can be imprisoned for other purposes, and then take advantage of rehabilitative programs while in jail, but those programs cannot be the reason for incarceration.

The government argued that this only prohibits choosing jail over a non-jail sentence based on such considerations. Once the sentencing court has decided to incarcerate, § 3553 requires courts to consider rehabilitation, so it must be a reason for determining the length of the sentence.

The Circuit said this made no sense. “If, as the government concedes, imprisonment is not an appropriate means of promoting rehabilitation, how can more imprisonment serve as an appropriate means of promoting rehabilitation?”

The court went on to find that the sentencing judge’s comments indicate that the defendant probably got extra time so as to give him more opportunities for rehabilitation. It was reasonably likely that his sentence would have been shorter, otherwise.

Maybe not a dramatically shorter sentence — after all, the judge did say that selling heroin is serious, and that the defendant had a lifelong pattern of recidivism. But that’s not the point. The point is that the defendant might have gotten a shorter sentence.

Any unwarranted extra time in prison is unfair. It’s not what our system is supposed to permit. So the Circuit vacated the sentence, and remanded for new sentencing.

The defendant might wind up getting the same sentence at the end of the day. But the sentencing court is going to have to explain that the reasons for the length of the sentence do not include the extra opportunity for rehabilitation from extra months in jail.

-=-=-=-

This exacerbates the split among the circuits. And the issue is an important one, involving the deprivation of liberty and freedoms for the purposes of social engineering.

We wouldn’t be surprised to see the Supreme Court take up this issue in the near future. Perhaps even with this case.

Stop the Presses! Threat of Punishment Might Work!

Thursday, December 4th, 2008

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The respected journal Science will publish tomorrow a research study that suggests that the threat of punishment can keep people from getting in trouble. Stop the presses!

You’d think that this might have been studied before. But previous studies (focusing on freeloading vs. pro-social behavior) only focused on short-term outcomes. This new study, on the other hand, found in the long term the threat of punishment becomes deeply embedded in people’s subconscious, so that they come to fear getting in trouble.

You’d think this might have been too obvious to require study. But as Karl Sigmund of the University of Vienna explained to LiveScience.com, “the experimental work is extremely important and timely, as many researchers had voices concern whether punishment is not too costly a tool to promote cooperation.”

Clearly punishment isn’t the only tool out there to affect people’s behavior. Socialization, community involvement, and positive inducements are all strong factors. But we’re going to go out on a limb and say that, until something else comes along that satisfies society’s need for deterrence, removal (and, sadly, retribution), punishment’s going to remain part of our toolbox for a long long time.

[The research was performed by a team led by Simon Gächter at the University of Nottingham.]