Posts Tagged ‘rehabilitation’

Deterrence has nothing to do with it.

Thursday, December 20th, 2012

Interesting concurring opinion by Posner the other day in U.S. v. Craig. Basically, the defendant pled to four counts of creating child porn — which he created in an awful and horrifying way. He could have gotten 30 years for each count, but the judge gave him 50 (30 on one count, 20 on the other three). The defendant appealed the sentence. But it was within the Guidelines, and so was presumptively reasonable. And the judge didn’t ignore any mitigating factors. So the appeal was meritless and denied. A shocking sentence for a shocking crime, but hardly a shocking decision.

True to form, however, Posner went out of his way to make an economic evaluation of the sentence. What was it good for? Did tacking on the extra 20 years make any sense? Posner says no, and argues that judges need to take such things into account in the future when imposing sentences.

He engages in a straightforward cost-benefit analysis. The cost to society? $30K a year now, more than double that as the prisoner grows old and requires medical care. Plus the lost productivity of the man being incarcerated. The benefit? For that he looks to the purposes of punishment. But not all of them.

He only considers (more…)

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…)

Stop the Presses: Drug Court Works

Monday, November 30th, 2009

 

The AP’s Sam Hananel has a nifty piece on Law.com today, called “Drug Courts Successful for Few Who Get In.” He sums up the situation fairly well. The short version is “drug court works, and with more funding it would work even more.”

A lot of crime is the result of drug addiction. Addicts deal drugs, rob, steal, burglarize and hurt people just to feed their addiction. Other crimes would never have happened but for that addiction. And addicts tend to keep committing these crimes over and over again. The damage to society is great, and the public cost of dealing with it is enormous.

So if we could somehow stop the addiction, the thinking goes, then we could prevent a large amount of future crimes and save ourselves a lot of resources. That’s where drug court comes in. If selected for drug court, addicts get treatment and counseling. And if they succeed, their case gets dismissed or reduced in the interests of justice.

That’s the carrot. There’s a stick, as well. Before entering the program, the offender has to take a plea. No judgment is entered, however. If the offender completes the program successfully, then they get their plea back. If they fail, however, then that plea can be enforced, and they face jail.

But a drug program that’s going to work is also going to be very hard to endure. Lots of offenders would rather just do the time, frankly. Because it’s not just about kicking the habit. Quitting is the easy part. Look at any population of inmates who can’t afford to maintain their drug habit while incarcerated, if you want to see “cold turkey” in action. The problem is, when they get out, they go right back into the same neighborhoods, with the same temptations, the same social pressures, and the same inability to just say “no.” They never rejoin lawful society.

So a decent drug program is going to hammer home, not only the ability to say “no” and keep pissing clean, but also the skills one needs to survive in law-abiding society. How to get a job, and keep it. How to take care of oneself, one’s family, and even put some savings aside. How to get that high school equivalency, or vocational certificate that can make all the difference in the world. It’s damn hard.

But it works. For those who graduate these programs, a mind-boggling 75% stay out of trouble. They’re cured. It worked.

Of course, a large reason why the success rates are so high is that candidates are cherry-picked by DA’s offices. Sources cited in the AP article complain about this selectivity, but in a world where the number of addicts vastly outweighs the resources available for treatment, it is hardly surprising that the government would focus its resources on those addicts most likely to respond to treatment. Accepting someone who’s probably going to fail is doubly unjust — it wastes tax dollars that could have helped another equally-needy addict, and it sets up the failer for the big stick punishment.

That big stick punishment is another complaint we’ve heard, and it pops up in the AP article, too. It’s not fair, they say, to require defendants to take a plea before they go into treatment. But these critics fail to recognize that it is a crucial part of the equation. Without the plea first, there is no incentive not to backslide. We’re talking about people who have already exercised poor judgment, poor impulse control, and a general tendency to take the easy way out. And again, this is a difficult process. Offering a risk-free escape route would set the whole system up for failure. It would be unjust, and a huge waste.

On top of that, the system would have to resuscitate each case one by one as people dropped out of the programs. DA’s offices would never be able to close a case, really. It would only increase their uncertainty and their workload. What possible incentive would they have to recommend our clients for treatment in such a situation? Time to be realistic, people.

So screw the naysayers. When we were narcotics prosecutors, we liked it. Now that we’re on the side of the angels, we love it. It makes a difference. It works. Keep both the carrot and the stick, if you want it to keep working. And if you want less cherry-picking, cough up more taxes so there are enough spots for all the good candidates, and then cough up some more to pay for the long shots.

In the meantime, let’s keep working to make it work.

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.

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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.

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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.

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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.]