Unfair

by Adam Benforado

  So, it is not only that severity of punishment is influenced by factors that we claim are irrelevant, like the thickness of the defendant’s lips, but also that severity of punishment fails to track factors that we do deem relevant, like the egregiousness of the crime. Even the death penalty—arguably the most scrutinized aspect of our correctional system—is crippled by both afflictions. I’ve touched on how race influences the decision to inflict capital punishment, but we also fall short on attending to the criteria we’ve declared essential in passing sentence.

  In 2005, the Supreme Court held that “capital punishment must be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability make them ‘the most deserving of execution.’ ” But in a recent survey of all of the murder cases in Connecticut between 1973 and 2007, the system turned out not to be delivering “just deserts” at all: murderers who had committed the most heinous crimes frequently did not receive the death penalty, and there was no legitimate principle that distinguished those on death row from those who escaped capital sentences.

  Our forebears set out to design a system that was consistent, fair, and proportional. And it is with those aims that we have added new mechanisms—such as uniform sentencing guidelines for judges—designed to get rid of lingering arbitrariness and bias. But in fact we still punish in a way that is deeply inconsistent and often perverse.

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  If we accept that our system of punishment is not humane and that it fails to inflict deserved suffering in proportion to wrongdoing, perhaps it might still be justified if it makes us safer.

  On a very general level, it seems uncontroversial that our criminal justice system reduces crime: take away our laws and punishments, and more people would drive drunk, steal from old ladies, and wallop line cutters at the supermarket. And on first glance, the numbers seem to show the effectiveness of our current approach to corrections. The rise of mass imprisonment has coincided with a significant decrease in criminal activity in the United States. Over the last twenty or so years, both property crime and violent crime have fallen by more than 40 percent. New York City stands out as a success story. A savvy visitor to the Big Apple once avoided walking back to the hotel at night and skipped the subway altogether, but today Manhattan is a destination of relative safety. It seems clear that the get-tough-on-crime efforts that began around the country in the 1970s have finally paid off: millions of criminals have been taken off the streets and millions of others deterred.

  But the real story is not that simple.

  First, there are many other plausible explanations for the decrease in criminal activity, from more-effective policing tactics to an aging population to low inflation that has undercut the market for stolen goods. If the expansion of our harsh incarceration practices really reduced crime rates, we would expect to see clear evidence that released offenders were being dissuaded from committing new crimes. But for the last twenty years our recidivism rates have been stuck at around 40 percent, and in certain states more than 60 percent of offenders are locked up again within three years of release. Three-strikes laws, in particular, appear to have had no notable impact on crime rates. We would also expect similarly situated countries that didn’t experience an imprisonment boom to have missed out on the massive decrease in crime that occurred in the United States. But that is not the case either: while Canada has maintained a fairly stable rate of incarceration, its crime rate has generally gone up and down in step with that of its neighbor to the south. And although the top thirty-five countries in Europe combined continue to have fewer inmates than the United States, they have not been overrun by crime.

  Second, these statistics often omit the massive amount of crime that now takes place within prisons. Indeed, some scholars and journalists have asserted that it is not so much that crime has dried up as that it has simply moved from one location to another. Prisons are rife with drug dealing, assaults, and rapes, but these transgressions happen—literally—behind closed doors, which creates a false impression of overall crime reduction.

  Third, to determine if our prison system is actually keeping us safe from crime, we need to know what the effects would be of alternatives. This problem has long plagued research on the death penalty. When the Supreme Court reinstated capital punishment in 1976, after a four-year moratorium, it was on the grounds that it deterred murderers. A number of empirical studies since then have appeared to back this up. But when the National Research Council convened a committee of leading experts in 2011 to assess the last thirty-five years of research, they concluded that the work didn’t actually show that the death penalty reduced homicides. For proof of deterrence, you really need to compare two numbers—the murder rate in State X with the death penalty in force and the murder rate in State X without the death penalty in force—covering the same time frame. That’s impossible, of course.

  So, to get a sense of whether our system of punishment actually accomplishes its stated goals, we need to take another approach. Instead of trying to find the answer by looking at broad statistics, let’s consider our correctional framework from the perspective of someone on the cusp of committing a crime—say, Leandro Andrade, just before entering that Kmart back in 1995—and see what might have gone into his thinking.

  One of the reasons California passed its three-strikes law was to act as a deterrent in just this type of situation. The idea was that a repeat offender would weigh the benefits of committing the additional crime against the significant costs entailed in that third strike. Making the strike very harsh would mean that people like Leandro would ultimately decide not to take the videotapes. But how straightforward is that calculus?

  Understanding the law is the starting point—but, unfortunately, the law is often complex, nuanced, or obscure. Here, Leandro needed to know that even though shoplifting is normally a misdemeanor, it can be prosecuted as a felony if you have a prior conviction for a property crime. And although two counts of such a felony are normally punishable by a maximum of three years and eight months in prison, if you have two “serious” or “violent” previous felonies on your record, you are looking at fifty years in prison with no possibility of parole. In essence, Leandro needed to know that breaking into three homes one day twelve years earlier—crimes that were not “violent” in any real sense of the word, as no one was even home, and for which he had served his time behind bars—had left him walking a tightrope without a net.

  But even complete awareness of the law isn’t sufficient. To conduct a true cost-benefit analysis, Leandro also needed to understand how Kmart uses security cameras, how likely the staff were to notice his shoplifting, how quick they would be to catch him, and whether they would call the police. And he had to have an idea of whether a prosecutor would decide to prosecute, the chances a jury would convict, and the conditions of the prison he might be sent to. Though it required projecting many years in the future, it was equally important to estimate the probability that a court of appeals might overturn his mandatory sentence as unconstitutional and that the voters of California might eventually pass a proposition reforming the three-strikes law and allowing for a reduction of his sentence. Perhaps most critical, Leandro had to anticipate how it would feel to be locked up again and consider the various opportunities and experiences he would be forgoing during his incarceration.

  There are so many moving parts and unknown variables that even a prize-winning economist would struggle to calculate the tradeoffs. And, of course, Leandro was not an economist at all. He was a heroin addict.

  Even those of us who don’t have a mental illness or substance abuse problem are subject to cognitive limitations, emotional states, and other distorting influences that make it hard to assess the cost of committing a crime. If motivated reasoning can lead a judge to disregard research that conflicts with what he believes to be true, it can also lead a potential criminal to ignore information that suggests he’ll end up with a heavy prison sentence. Add in opt
imism bias magnified by the extreme uncertainty built into the system, and a person may conclude that he is likely to avoid punishment altogether, regardless of the threat he actually faces.

  Recent research suggests that people may even struggle with the basic task of judging the severity of a punishment. Which sanction is worse: (a) a $750 fine or (b) a $750 fine and two hours of community service? In a stunning finding, those assuming the identity of a potential lawbreaker are inclined to view the enhanced penalty with the community service as less severe than the fine alone! The reason is that people in Leandro’s position don’t tend to evaluate the punishment using the correct additive approach—adding together the major unpleasantness of paying the fine with the minor unpleasantness of doing the community service. Instead, they evaluate it through a misleading averaging process: if you take the major unpleasantness of paying the fine and the minor unpleasantness of doing the community service and average them, you come up with a punishment that seems less harsh than the fine alone. So, a legislature may aim to make it less appealing to break the law by adding community service to a big fine or jail time, but because potential offenders can’t do the math, increasing the sentence with the small extra penalty may actually encourage crime.

  It doesn’t help that none of us are very good at predicting how punishment might make us feel—what scientists call “affective forecasting.” And even if we could foresee what it would be like watching the cell door slam shut on our first day in prison, the emotions of that moment are almost certainly temporary. Indeed, the experience of imprisonment shifts over time as people adapt to the conditions of incarceration. This means that ten years in prison is not twice as unpleasant as five years in prison and ten times as unpleasant as one year in prison. Many life changes—from winning the lottery to losing a limb in a car accident—turn out, in the long term, to have much less of an influence on our well-being than we expect. People can get used to anything, even prison. As Ellis Boyd “Red” Redding, Morgan Freeman’s character in The Shawshank Redemption, who is serving a life sentence for murder, explains, “These walls are funny. First you hate ’em, then you get used to ’em. Enough time passes, you get so you depend on them. That’s institutionalized.” The fact that people get “institutionalized” before returning to society is a major problem for deterrence. With long sentences, we end up releasing people at moments when the prospect of another year of prison seems least unpleasant.

  In fact, from a psychological perspective, our current system does everything wrong in terms of optimal deterrence. Deterrence works when potential offenders think that they are almost certain to be caught and given a clear, immediate punishment. Our system, by contrast, offers a low probability of getting caught and a hazy potential punishment far in the distant future.

  In the United States, only 40.3 percent of reported forcible rapes, 28.2 percent of robberies, and 12.4 percent of burglaries resuit in charges being filed. A serial burglar, then, should expect to be arrested and charged for only one out of every eight houses he breaks into. That’s a real problem, given that the likelihood of being apprehended by the police appears to have the single biggest impact on deterrence. It doesn’t help that conviction rates are well below 100 percent in America—69 percent for burglary—or that sentences are highly uncertain. The death penalty is a prime example: how can it serve as an effective additional deterrent (beyond life in prison) when the chances of, say, a young black male actually being executed once he’s on death row are only slightly higher than his chances of being killed as a result of an accident or violence outside of prison?

  Likewise, despite our admission that “justice delayed is justice denied,” our judicial process is often dragged out over a series of months. In Brooklyn, the average wait time for a trial is 243 days; in the Bronx it is 408 days. Some cases take three, four, or five years. Even when punishment is certain, the greater the delay between the violation and the punishment, the less the penalty will act as a deterrent.

  If we really wanted to deter crime, we would stop wasting our time with harsh mandatory minimums, three-strikes laws, and life without the possibility of parole, which have a minimal or nonexistent impact on offending. We are almost always better served by putting resources into increasing police presence—magnifying the perception that crimes will be detected—than we are by passing new laws that add years on to sentences. A punishment needs to be distasteful, but it doesn’t need to be long. That’s true both for deterring would-be offenders and for nullifying the effects of “institutionalization.” The added benefit of brevity is that when a person commits a crime that carries a relatively short sentence, he is more likely to be convicted and actually receive his punishment: research has shown that the greater the potential sanction, the higher the standard of proof mock jurors require in order to find someone guilty.

  The few judicial systems that have embraced a deterrence approach grounded in psychology have shown how effective it can be. For many years, probation violations were routine in Hawaii because the punishment for breaking the rules came either months later or not at all, as the sanctions were so severe that judges were reluctant to impose them. But in 2004, the state launched a new initiative focused on making sanctions clear, certain, and immediate. In Hawaii’s Opportunity Probation with Enforcement (HOPE) program, substance-abusing probationers know exactly how they should behave and what to expect if they don’t follow orders. Every morning they have to call an automated drug-testing hotline, and if they’re randomly selected, they have to report for testing by the early afternoon. If they test positive, they are arrested on the spot and put in jail for a few days.

  The results have been impressive: HOPE probationers are far less likely than regular probationers to be rearrested for a new crime, have their probation revoked, miss a probation appointment, or abuse drugs. Seventeen states have now adopted programs modeled on the initiative, and these limited experiments with probation could be stepping-stones to a more effective overall corrections system.

  As we consider the broader expanse, however, we see a world of criminal justice still mired in false and harmful notions of how best to treat offenders to discourage crime. Unfortunately, exposing the ineffectiveness of our approach does not tell the whole story. It is not simply that our mechanisms of justice fail to deter; it is that they actually increase the likelihood of future criminal behavior. You’d imagine that taking a bunch of criminals and placing them in an extremely controlled setting—and then culling the particularly dangerous ones from the herd and placing them in solitary—would be a great formula for limiting problem behavior. But the truth is that our prison environments actually engender violence.

  That makes sense when you consider the sheer numbers. The influx of inmates over the last few decades has left prisons woefully overcrowded and—as a consequence—without the funding needed to continue many educational and occupational programs. Pack people in and give them nothing to do and you will have individuals acting out, often violently. I saw that as a thirteen-year-old, watching the fights, vandalism, and abuse that occurred in the Longfellow Middle School cafeteria, where 1,200 of us were corralled each morning before classrooms opened at 7:30. If it can happen with a bunch of kids at a good public school in Falls Church, Virginia, what do you suppose happens with a pool of criminals?

  When the U.S. attorney in Manhattan reviewed the experience of male teenagers held at Rikers Island in 2013, he found a “pervasive” and “deep-seated culture of violence.” Although the average daily adolescent population at Rikers was just 692, there were 845 reported inmate-on-inmate fights, not to mention the many unreported ones. Harsh abuse by staff was routine: 44 percent of those in custody had been beaten at least once. And many of the resulting injuries were serious: head trauma, facial fractures, cuts requiring sutures. Conditions were so bad that some inmates requested isolation just to escape. There’s similar data from all over the country. In Georgia between 2010 and 2014, for example, there were thirty-four murd
ers that occurred inside state prisons. Our correctional facilities are incubators for brutality.

  What is particularly disturbing is that the vast majority of the individuals crammed into our troubled correctional facilities are then released back into society. The notion that our penal system keeps the dangerous incapacitated is a myth. This year, 13.5 million people will spend time in jail or prison, and 95 percent of them will eventually return to the outside world. Inmates in long-term isolation are no exception: more than half will rejoin the communities from which they came.

  It is often not a happy reunion. Many inmates acquire drug habits, communicable diseases (such as hepatitis and HIV), and gang affiliations, which they bring with them as they walk out the penitentiary gates. The nonviolent offender learns to be vicious. And the lone criminal may gain a network of future accomplices.

  The losses, too, are staggering. After being locked up for months or years, many inmates have lost the very things that might allow them to return as productive and peaceful members of society: family ties, friendships, years of job training and experience. They are thrown back into the rough sea of life without the anchors, rudders, and charts of safe passage needed to avoid a wreck.

  And many must navigate their new surroundings without the mental faculties they once enjoyed. Those kept in solitary usually face the greatest deficits upon release, and many struggle to initiate or manage relationships on the outside. Moreover, when you can no longer participate in normal social exchanges, holding a job and staying on the straight and narrow becomes nearly impossible. It should come as no surprise, really, that extended isolation has been linked to increases—not decreases—in recidivism. This is one of the reasons that the Commission on Safety and Abuse in America’s Prisons, a bipartisan task force convened in 2006, concluded that there were no notable benefits to isolation of more than ten days or so, and that long-term seclusion caused obvious harm.