Eric Haines lives with his father in Paterson, New Jersey, across the street from a memorial to a childhood friend who was shot to death two weeks ago—Haines’ second friend to die violently in as many weeks. A white sheet hangs over a chain-link fence, facing an audience of Jesus candles. A few dozen feet away, several men gather outside a corner store, where they will remain past nightfall.
Haines might be out there with them if it weren’t for the black box that’s been strapped to his ankle since he violated the conditions of his parole several weeks ago. Haines, 27, has been under supervision for the past nine years because he’s made parole violations something of a habit. (Haines’ name has been changed for his safety.)
The last time Haines violated his parole (by failing to report to his parole officer), instead of running and waiting to get caught, he simply turned himself in and ended up with an ankle bracelet that monitors whether he is home when he’s supposed to be. His parole officer will remove the ankle bracelet only if he finds a full-time job or enrolls in school—if he makes a substantial effort to leave the streets behind.
Haines admits that it has probably saved his life. As a result of both the constant supervision and the suspicion the bracelet draws, he has been isolated and unable to figure out who killed his friends and potentially retaliate. He now rarely leaves his father’s house, preferring to stay at home and take care of his little sisters.
The ankle bracelet might be more commonly associated with law-breaking celebrities like Martha Stewart or Paris Hilton, but some experts believe it could be the future of criminal justice—a way to supervise offenders in the community without incurring the social, financial, and community costs of incarceration. Instead of sending Haines back to prison for a lengthy sentence that will cost the state a great deal of money, New Jersey turned him into a kind of outpatient inmate whose ability to cause suffering to himself and others is greatly diminished. He also has a chance at building a new life—something he wouldn’t have if he were incarcerated.
In the 1980s and 1990s—the “tough on crime” era—incarceration was touted as the simple solution to our crime problem. Today, the United States imprisons 1 percent of its entire population. Including the number of people on probation and parole, 1 American in 31 is under supervision of the criminal justice system. Mass incarceration has succeeded in reducing crime, but the strategy has diminishing returns. The offense rate of the top 20 percent of offenders is more than 10 times that of the average prisoner; a few very active criminals commit most of the crime. But under the current system, offenders who could be more cheaply deterred or rehabilitated instead incur the most expensive—and, from the perspective of its effect on the community, most damaging—form of punishment possible. This is why, even as the number of incarcerated people has increased exponentially, crime hasn’t decreased at the same rate.
Fueled by the damage mass incarceration has done to state budgets, a new “smart on crime” movement has emerged to seek new ways of reducing the number of people in the system. Many states, including New Jersey, have attempted to do so by reforming probation and parole, in part by using something called “graduated sanctions”—levying small punishments on those who violate the terms of their supervision. Instead of being thrown back in jail, parolees are confined in short-term residential assessment centers—privately run institutions where they are evaluated. The parole board then decides the best course of action: revoking parole, placing the offender in a work or treatment program, or using the ankle bracelet.
It’s important to understand that most people who violate parole aren’t committing crimes. In New Jersey, 81 percent of parolees who return to prison are doing so because of technical violations; two of the most frequent are failing to report as instructed and failing to obtain approval for a change of address. To throw someone back in jail for two years because of a technical violation seems unfair even to probation officers, many of whom are relieved to have more choices.
America is slowly inching away from decades of a draconian approach to criminal justice—one that has resulted in the “land of the free” imprisoning more of its citizens than any another country in the world. In Congress, bills to repeal the sentencing disparity between crack and powder cocaine are gathering momentum. The new head of the Office of National Drug Control Policy, R. Gil Kerlikowske, has abandoned the “drug war” rhetoric. Religious conservatives commiserate with bleeding-heart liberals over what to do about recidivism. In New Jersey and other states, officials are thinking of creative ways to curb offending behavior without relying solely on incarceration. Although ideas like graduated sanctions have been around for years, they are now being implemented in earnest as states seek new strategies for deterring crime rather than simply punishing it.
“We have the emergence of a very pragmatic, nonideological crime-policy conversation that is allowing us to set aside philosophical differences to reduce crime and prisons,” says Jeremy Travis, president of the John Jay College of Criminal Justice.
“This is the great breakthrough of the last decade.”
Traditionally, liberals saw crime as the result of root causes such as poverty and poor education. Deal with these fundamental issues, the thinking went, and people will commit fewer crimes. Over time, however, conservatives successfully argued that this view was dangerously naive. Perhaps the most high-profile instance was the 1988 presidential election, in which Democratic nominee Michael Dukakis was portrayed by his opponent, George H.W. Bush, as “soft on crime” for supporting prison work-release programs. Bush trounced Dukakis, and liberals learned their lesson about crime as a political issue: There is no such thing as too tough.
In the 1992 presidential campaign, Bill Clinton took that lesson to heart. The then-governor of Arkansas left the campaign trail to make a show of signing the death warrant for Ricky Ray Rector, a 40-year-old black man who had killed a white police officer. Clinton sent the message to crucial middle-of-the-road white voters that he was no Dukakis. It would be a mistake, though, to characterize Clinton’s behavior as mere political posturing. Later, as president, he supported the “three strikes” law that helped swell the prison population.
The intellectual champion of “tough on crime” was James Q. Wilson, a political scientist and an official in the Nixon, Reagan, and George H.W. Bush administrations, who argued that breaking the law was an individual decision, not the product of social circumstances. Therefore, the only way to reduce crime was to make sure crime didn’t pay. Both Democrats and Republicans have, for the past two decades, made criminals pay dearly, swelling the incarcerated population to more than 2 million. But it wasn’t just the criminals who paid—it was also their families, their neighborhoods, and society as a whole.
Criminal justice policy wonks and academics recognized the problems associated with mass incarceration as early as the 1980s, and law enforcement officials, from the federal level on down, have been searching for answers since the 1990s. Encouraged by the federal government, a number of states have spent the past 10 years looking for new approaches to probation and parole. Some jurisdictions funded nonprofits to help former inmates learn parenting and job skills. Others tried using drug courts that divert nonviolent drug offenders to treatment programs instead of locking them up again. Some states, including New Jersey, implemented graduated sanctions.
By all accounts, graduated sanctions are a step in the right direction. In New Jersey, the system is cheaper and more effective than reincarcerating parole violators, and the number of violations has dropped precipitously since it was implemented in 2001. Still, with a large menu of reentry programs, the approach is resource-intensive, throwing a number of solutions at the problem and making it difficult to discern which ones work best.
Offenders are not “rational actors” in the normal sense, explains UCLA professor Mark A.R. Kleiman in his book When Brute Force Fails. Their cost-benefit calculations are skewed toward the immediate future, which means they don’t feel a tie between a delayed punishment and the offense.
Even Wilson, the godfather of “tough on crime,” has endorsed Kleiman’s book. “This is very good. It’s not quite as good as Einstein predicting the shift of light behind Mars . . . but it’s a step in the right direction,” Wilson said while appearing alongside Kleiman on a panel at the American Enterprise Institute last October. Though Wilson still defended “tough on crime,” he acknowledged that the ideological landscape has shifted. When Kleiman pointed out that the rate of imprisonment of black men in the United States exceeds the rate of imprisonment in the Soviet Union during the height of the Gulag, the audience at this conservative think tank gasped. Even among conservatives, there is a growing recognition that something is deeply wrong with a modern industrialized nation imprisoning such a large percentage of its population.
Meanwhile, crime is low enough that it is no longer the politically radioactive issue it once was. Last June, when Senator Jim Webb of Virginia introduced legislation establishing a criminal justice commission, he declared that “America’s criminal justice system is broken” without inciting a backlash or being dubbed “soft on crime.” Webb’s commission is the best hope for wide-ranging reform—though that depends ultimately on which school of thought on criminal justice prevails.
Glenn Loury, an economics professor at Brown University who has written extensively on the issue of overincarceration, says the attention Webb got merely for proposing a commission to study the issue shows how warped the politics of criminal justice are. “He’s now a candidate for a profile in courage because he’s willing to talk to the American people about the punishment regime that we’ve constructed here in a way that casts a critical eye on it,” Loury says. Ironically, it is precisely because crime has decreased in salience as a political issue that reform is possible.
Excerpted from The American Prospect (Dec. 2009), a perennial Utne Reader staff favorite for its smart, authoritative political coverage. www.prospect.org