Making Crime Pay – We need a new justice system that turns criminals into productive citizens

March 3rd, 2009

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Originally published in DEMOCRACY – A Journal of Ideas.

It seems like ancient history, but it was only 20 years ago that a presidential election turned on the issue of crime. Years of spiraling crime rates, fed by the crack wars in urban centers and the spread of gang violence to smaller cities, made it the leading domestic issue of the 1980s. From 1968 to 1988, the number of violent crimes in America nearly tripled, rapes almost quadrupled, and murders spiked by 7,000 each year. In 1988, allies of Vice President and GOP presidential nominee George H. W. Bush ran one of history’s most infamous political ads, linking his opponent, Massachusetts Governor Michael Dukakis, to the furloughed rapist Willie Horton. Then, weeks later, in a presidential debate, Dukakis stumbled over a question regarding a theoretical death penalty case involving the rape and murder of his wife. A race that had been the Democrats’ to lose turned into a rout by the GOP.

But in the 2008 campaign, crime was barely mentioned at all. In Washington, crime, it seems, is now treated like polio—a severe problem once upon a time that has largely disappeared.

That may soon change. A chorus of criminologists, mayors, and police chiefs is warning that, after more than a decade of decline, the crime rate will soon surge again; indeed, it already began trending upward in 2005 and 2006. National rates would be even higher were it not for the remarkable success in New York and Los Angeles, where together crime has dropped 27.1 percent since 2004. But large cities like Philadelphia, Baltimore, and New Orleans, smaller cities like Birmingham, and many rural areas have seen crime rebound to levels not seen since the late 1990s. And a handful of mostly first-time trends—including the release into the general population of several million prisoners—are forming a potential upsurge in crime.

Crime is coming back at a time when the economy is in free fall and government budgets are skin-tight. In the past, crime rates have often run countercyclical to the economy. Some of the biggest spikes occurred during the economic downturns of the 1970s and early 1980s. The last gasp of increasing crime rates coincided with the 1991 recession. Some credit the decrease in crime over the past 15 years to a stronger economy in which plenty of jobs have been available, particularly for youth, who are statistically more prone to be involved in crime.

But something else changed 15 years ago: A Democratic Congress and president delivered the most ambitious crime-fighting package in history. The package included stiffer sentences, prison construction, new gun restrictions, 100,000 cops for local communities, and an infusion of grants for after-school and weekend programs for kids. The price tag was $30 billion over six years. However, with deficits exceeding $1 trillion today, it seems unlikely that another $30 billion will be forthcoming. But even if we had the money, it’s not certain the same strategies would work. Crime, like a virus, mutates. Old prescriptions don’t necessarily possess the same potency. The 1990s mindset was about getting tough; the approach was based on removing criminals from the streets. What is needed is not just a new approach, but a new mindset. The new approach should be based on reconnecting the criminal justice and penal systems to society at large by creating better mechanisms for reintegrating ex-cons, bringing underground economies into the light of day, and using technology to more easily prevent and solve crimes. We need to see the systems not as something separate from civil society but as an extension of it, and all but its worst occupants not as condemned others but as once and future productive members of society. Ultimately, that is how we can best respond to the converging crime trends of the twenty-first century—with a results-based, prevention-oriented, cost-effective approach that redefines success, so that we are not simply postponing today’s problems until tomorrow.

The Gathering Storm

Five trends are converging to form a potentially perfect storm of crime. Chief among these is the return to the general population of millions of inmates from prison. Recidivism has always been a problem in America, but we have never experienced anything close to the impending wave. In 1988, fewer than 700,000 people were in state and federal prisons; in 2008 alone, 700,000 were released from state and federal prisons. Over the next five years, 3.5 million people will be returned to the streets. If they simply behave like previous inmates, they will commit 10 million crimes by 2013, one out of every six expected over the next five years.

This is the hangover effect of the stiffer sentences for both violent and certain non-violent crimes promulgated in the 1994 Omnibus Crime Bill. These stiffer sentences, some argue, were part of the American success story on crime, a key reason why violent crime rates declined for 14 consecutive years, from 1991 to 2004. But incarceration strategies have boomerang effects—after all, 98 percent of people who enter prison eventually come out. And because prison provides a graduate-level education in criminal behavior, they usually come out in a much more hardened state than they were when they went in. Another trend stems from illegal immigration. This doesn’t mean the criminality of mere status offenders or those who use false identification in order to work. Nor does it refer to the statistically false canard about immigrants being more prone to commit crime. Rather, the sheer number of illegal immigrants, now estimated to top 12 million, and Congress’s inability to resolve their status, has created a shadow economy of criminal activities, some meant to help and some meant to harm illegal immigrants. Human smuggling and human trafficking operations have morphed from mom-and-pop industries to organized crime syndicates. A network of illegal businesses has sprung up to create new identities for the millions here without documentation. Federal resources for real crimes have been siphoned away to deal with status offenders. Perhaps most appalling, violent criminals have figured out that illegal immigrants are easy prey, since they are loath to report crimes against them for fear of deportation.

The third trend is an increase in the number of Americans between the ages of 15 and 24, the so-called Baby Boomlet. This group of teenagers and young adults represents the promise of America, but this age group is statistically more likely to be involved in a crime than any other cohort. In 2006, 15- to 17- year-olds, who comprise 4 percent of the U.S. population, were arrested for 11 percent of all crimes. The most likely age to be arrested for murder was 18, followed by 19 and 20.

Fourth, the federal commitment to crime fighting has receded. Aid to states for the major crime-fighting programs is now down by 56 percent compared with 2001. The Community Orienting Policing Services (COPS) program to put police on neighborhood streets is all but gone. A report produced by then-Senator Joe Biden found that the “number of FBI agents for crime and drug cases, white collar crime, and violent crime matters all decreased by 39 percent, 23 percent, and 10 percent respectively.” FBI caseloads and criminal referrals have fallen 33 percent during the Bush years, according to an exposé by the Seattle Post-Intelligencer.

And last is simply the economy. Bad economic times don’t guarantee higher crime rates, but many of the spikes in crime occurred during rough economic patches. These are also times in which cities and states cut budgets to offset dwindling tax revenues. Even before state budgets eroded, the number of law enforcement officers per capita had declined by 3.4 percent between 2000 and 2007 and 7.4 percent for cities with populations over 250,000.

From Tough to Smart

In one of the few times that crime was mentioned in the 2008 campaign, then-Senator Hillary Clinton called for putting 100,000 cops on the beat, resuscitating the centerpiece of the 1994 Crime Bill. The impulse is to repeat what worked in the past, and it’s hard to argue against the 1994 law. It represented the first truly concerted federal effort to help local governments take on crime since the 1960s. Most of the discussion today is about tinkering around the edges of the old approach—tweaking sentencing laws a bit, providing transitional help to people leaving prison. But underlying these five trends are several complicating factors that make it impossible simply to return to past solutions. The 1994 Crime Bill, effective as it was, leaned heavily on incarceration. But the cost of incarceration to the taxpayer is enormous, and the long-term effect on the individual is mostly negative. Plus, the bill was static: It dealt with a particular crime problem at a particular moment, one fed by crack cocaine and gang membership. The means and motives for crime change over time, and the solutions must change with them.

Redefining Success for Prison Systems

We know that on average two out of three ex-convicts will be arrested for a crime within several years of release. We have no idea what percentage of former inmates become contributors to the tax base. We have no idea, because it is not measured. And if it is not measured, it is not valued.

No prison program is going to enjoy complete success, because this is an exceptionally difficult population. But we must accept that we cannot simply incarcerate ourselves to public safety. Those inside eventually come out. If we redefine success and measure outcomes based on an ex-con’s contributions to or withdrawals from the coffers, we may not only solve much of our crime and fiscal problems concurrently, we may help former inmates become better people. Recidivism is the most notable unintended consequence of the 1994 crime bill. If idle hands are the devil’s tools, then prison is the factory floor. For the most part, prison is marked by a high degree of idleness among a population that is primed for failure. Even though 68 percent of inmates lack a high school degree and half are functionally illiterate, only 52 percent of prisoners take any education courses during their stay. Even though 53 percent of state inmates are drug dependent, less than 40 percent of those participate in any drug counseling activities whatsoever, and most of the participation is informal, sporadic, and ad hoc. And only one-third of prisoners who were diagnosed as mentally ill received any sort of treatment. In the end, the typical inmate costs the taxpayer roughly $30,000 each year, roughly the cost of college tuition at the nation’s most elite universities, but when they are released the only thing prison has done is made them a better criminal.

There are currently two inadequate measures of success for prisons: first, keeping dangerous people away from society. By that measure, prison gets an “A.” On any given day, two million mostly dangerous people are off the street. Second, when prison institutions measure their own success, the focus is almost entirely on safety and cost. The American Correctional Association defines success as “improve[d] conditions of confinement, increased accountability and enhanced public credibility for administrative and line staff, a safer and more humane environment for personnel and offenders, and the establishment of measurable criteria for upgrading programs, personnel and the physical plant on a continuing basis.” And how is success measured under these criteria? Sadly, chief among them is “defense against lawsuits.” The Corrections Corporation of America, the largest privately run corrections operation, defines its “outstanding performance” using one simple matrix: “[Our] escape rate is consistently comparable or better than that of the public sector with 0.81 escapes per 10,000 inmates.”

We should all be pleased that escapes are rare, facilities are maintained, and that a humane environment is considered desirable. But beyond keeping the confined safely in confinement, success must be defined as changing outcomes, turning as many inmates as possible into productive, rather than destructive, citizens. Success should be measured by the number of taxpayers we create post-release, as well as declining rates of recidivism. Otherwise the only thing prison accomplishes is a massively expensive turnstile operation that temporarily houses very dangerous people.

The first step forward should be to create a 40-hour “work week” for inmates. Work, in this context, is really short-hand for structured activities designed to foster and encourage productive, rather than destructive, behavior. People in the general population work 40 hours; so should inmates. The 40 hours may include any combination of education, literacy, drug counseling, anger management, faith-based activities, family counseling, and labor. The work week should be a requirement of, not a benefit for, prisoners. It should be part of paying their debt to society. And in this case their job is to become a better person.

Several states have begun to experiment with this idea, including Arizona, Oregon, Illinois, and Maryland, which runs a mandatory GED program for inmates. In Oregon, recidivism rates are far lower than other states, though no study has determined whether the work-week program is the reason. In the other states, the initiatives are too new to know for sure. However, preliminary reports out of Illinois are positive, according to Deanne Benos, the head of the state’s prison system.

Second, we need to re-imagine parole. In Kansas, Governor Kathleen Sebelius was alarmed to discover that the state was slated to spend $500 million to construct new prison space, in part because, as a study of the Kansas prison population revealed, 68 percent of its prisoners were parole and probation violators. Many of the violations were either technical in nature or nonviolent; as a result, many of these inmates, who should have been contributing to the tax base, were simply draining it.

Parole boards mostly measure success by the number of violators they catch. But if the measurement is instead the number of taxpayers created, and if they took a violators’ social contributions into account when considering a case, the entire mindset of the organization would change. Reimagining parole has been so successful in Kansas that Sebelius has canceled the construction of new prisons, and the prison population in her state has actually bucked the national trend and gone down.

A Détente Between Illegal Immigrants and Local Police

Federal prosecutions of immigration cases reached 70,000 last year, nearly double from the previous year, according to a Syracuse University research group that tracks federal caseloads. Nearly all of them were charged with misdemeanors like illegal entry; beyond their status, they have not committed a crime. The same study found that white-collar prosecutions fell 18 percent, weapons prosecutions 19 percent, organized crime prosecutions 20 percent, and public corruption prosecutions 14 percent.

This is just one of the costs of keeping a large population totally outside of the civil rules and laws of American society. Arizona Attorney General Terry Goddard called the situation a “national abdication by the Justice Department.” He noted that U.S. attorneys on the Southwest border are so strapped with penny ante immigration cases that they now decline to prosecute drug cases involving less than 500 pounds of marijuana, referring them instead to overburdened local courts.

When there were a few million illegal immigrants in the country, their exploitation was relatively low and concentrated within the handful of states where they lived. Now there are 12 million, according to the Pew Hispanic Center, more than twice the population in 1997, and they are spread throughout the country. Between 2000 and 2005, ten non-Mexican border states experienced an increase in their illegal immigrant population of 50 percent or more. With the increase in numbers, criminal operations meant to help and harm illegal immigrants have become more sophisticated and profitable. “Triads have taken over the smuggling of [Chinese] illegal immigrants from smaller ‘mom and pop’ organizations,” according to a State Department communiqué. The smuggling of Latin Americans now increasingly relies on mob-owned travel agencies and Mexican organized crime syndicates.

The failure to pass a comprehensive and practical immigration reform bill in Washington is costing billions in meaningless law enforcement and is siphoning precious crime-fighting resources from vital areas. Even beyond the border, the failure to resolve the illegal immigration crisis is causing dangerous ripple effects.

For most traditional criminals, crime is a risk-versus-reward proposition. What is my financial gain from committing this crime relative to the likelihood of getting caught or hurt? Criminals reap high rewards when they target illegal immigrants because many do not have traditional bank accounts and often work at jobs that pay cash; they are almost completely outside the normal rules and protections of society. The risk is low because local police in many jurisdictions now automatically check the immigration status of those with whom they come in contact, regardless of the reason. As a result, if an illegal immigrant is the victim of, or witness to, a crime, they will not report it or provide testimony.

Though there are few records on the number of unreported crimes, newspaper accounts document a steep rise in crimes aimed at Latinos, particularly those who are undocumented. They range from the sadistic—the case of a Latino man and his pregnant wife murdered in a “drop” house in Arizona—to the brazen—like recent reports of roving bands of thugs preying on Latino workers in Prince William County, Virginia. In North Carolina, crimes against Latinos increased 500 percent over a five-year period that saw national crime rates decrease. The number of reported armed assaults against Latinos climbed seven-fold in Yuma County, Arizona from 2005 to 2006.

In the absence of a comprehensive immigration reform that legalizes those already here, the next-best solution is to create a détente between illegal immigrants and local and federal law enforcement in criminal matters. This is modeled on a successful approach already in use in communities across the country, from progressive New York City to conservative and rural Colquitt County, Georgia.

In New York City, police encourage illegal immigrants to come forward with a promise of anonymity and a pledge not to check on their immigrant status. In Colquitt County, police have reached out to community and church leaders in the immigrant community to increase trust and cooperation. Victims and witnesses are given immunity from prosecution for immigration violations. In the communities where law enforcement has established bonds of mutual self-interest, police are able to crack down on crimes ranging from murder and assault to fraud and human trafficking. In these and other communities, local police redefined success—from apprehending immigration violators to reducing violence and increasing public safety. In doing so on a national scale, we would once again be reincorporating those considered “outside” mainstream society.

Aim Younger—From Circumstance to Behavior

Much of our current efforts to interdict youth violence are aimed at risk factors based on circumstance, such as poverty and family structure. These programs often involve strengthening institutions like community centers and after-school programs. This strategy has been part of the success story of reducing teen crime rates, but it is insufficient.

Circumstance is important, but the vast majority of poor kids will never commit a serious violent crime. Likewise, there are kids from the best backgrounds who commit illegal violent acts. According to the Surgeon General’s report on youth crime, “At least half of chronic violent offenders can be identified as being at risk in childhood,” adding that this identification is as much based on how they behave than from where they come. Six studies found that “between 20 percent and 45 percent of boys who are serious violent offenders by age 16 or 17 initiated their violence in childhood,” according to former Surgeon General David Satcher.

A selection of scattered but groundbreaking initiatives have made the shift from circumstance to behavior. They have been aimed at ‘tweens, not teens, and have attempted to redefine success from merely reducing violence to increasing measures of standard responsibility. The most successful pre-teen programs are almost entirely behavior-based; working through the classroom, they are designed to make teachers better identifiers and handlers of at-risk kids. They identify kids who exhibit clear anti-social behavior; have very weak social ties; experience difficulty dealing with emotions like anger, frustration, or embarrassment; and frequently resort to violent acts. They work with the student, parent, mental health professionals, and often church and community partners to change behavior and teach better coping mechanisms.

Dozens of peer-reviewed initiatives like CASASTART (in Austin, Texas; Bridgeport, Connecticut; Memphis, Tennessee; and elsewhere); Second Step (from urban Los Angeles to rural Dunbar, West Virginia); and the Seattle Second Social Development Project have taken this approach and successfully changed pre-teen behavior, with continuing results during teen years. In Los Angeles, violent behavior fell from 1,800 incidents to fewer than 500 at one school after Second Step was implemented. These programs are inexpensive—at about $2,500 per classroom—but underutilized. Putting early violence interdiction programs in 10,000 fifth grade class rooms would cost a pittance—$25 million per year.

Reducing youth crime and violence is but one measure of success. When disruptive children behave better, classroom disruptions significantly decrease, academic performances by targeted youths and classmates increase, and youth crime falls. (In contrast, many of the popular “get tough” programs aimed at teens, like boot camps, have generally failed to yield positive results.) Again, the underlying principle is not to weed out and isolate problem individuals, but to weave them back into their school and neighborhood communities.

Spend Smarter by Embracing the New

Imagine you’re cruising down an Arizona freeway and you suddenly see a state trooper on the shoulder holding what looks like a radar gun. You tap your breaks and check your speedometer—78 mph. You drive along waiting to be pulled over, but nothing happens. You exhale.

That wasn’t a radar gun. It was a high-speed digital scanner hooked up to a national database. It read your license plate and matched it against those of reported stolen vehicles. It can read up to 12,000 plates in a single eight-hour shift. In Arizona, police armed with such scanners read 30,000 plates over a three-week period by simply cruising through Phoenix neighborhoods and parking lots. They turned up 113 stolen vehicles worth $900,000 resulting in 90 arrests. That’s a nice investment.

With the economy a mess and state budgets in reverse, more money for police is unlikely to be forthcoming. That means communities are going to have to do more with less. Beyond license-plate scanners, there are tremendous new resources and gadgets ranging from surveillance technology in high crime neighborhoods, forensic breakthroughs on ballistics, and detectors that can precisely identify the location of a gunshot based on sound.

Aside from using technology to target scarce resources, states have also found better ways to use their law enforcement manpower. Georgia has created a “hot list” that identifies the 500 most dangerous people in the state based on computer analysis and has developed state, county, and city law enforcement strategies to crack down on their behavior. Through a computer model developed by University of Pennsylvania, Philadelphia now pays special attention to a small group of parolees and probationers whom they believe are 50 times more likely to be involved in a homicide than other ex-cons. This makes the police more effective and efficient, saving money while at the same time effectively fighting crime.

A New Opportunity

During this current economic downtown, at precisely the time that we expect crime rates to increase, the last thing governments should do is cut law enforcement budgets. But citizens have a right to expect law enforcement to increase their performance with the resources they currently have. Many jurisdictions have found a way to do so, and the federal government should play a far larger role in promoting these new ideas, training local law enforcement, and making the modest investment to make crime-fighting technology more available.

It seems hard to imagine today how the issue of crime occupied center stage in the nation’s culture wars. Willie Horton was the “Joe the Plumber” of a previous presidential campaign, a man lifted from obscurity to represent either the promise or threat of a political party. Today, the political environment on crime is comparatively benign. Crime rates, though showing signs of bursting higher, are still low by recent historic standards. And the two parties are no longer at each other’s throats on this issue, seeking to score political points over who is “weak on crime” rather than actually accomplishing something. This gives President Obama and Congress a tremendous opportunity.

The temptation will be to tinker around the edges and dust off the old playbook. But the factors leading to this potentially new wave of crime are different from the past, and a new mindset and approach is needed—from tough to smart, from defining success by incarceration to reintegration and long-term public safety and civility.