Monday, January 11, 2010

Prisoners of Probation

And Parole:

Classical deterrence theory has long held that the threat of a mild punishment imposed reliably and immediately has a much greater deterrent effect than the threat of a severe punishment that is delayed and uncertain. Recent work in behavioral economics has helped to explain this phenomenon: people are more sensitive to the immediate than the slightly deferred future and focus more on how likely an outcome is than how bad it is.

[Neo-Deterrence Theory] is an example of a new approach to keeping people out of prison that is being championed by some of the most innovative scholars studying deterrence today. At its core, the approach focuses on establishing the legitimacy of the criminal-justice system in the eyes of those who have run afoul of it or are likely to. Promising less crime and less punishment, this approach includes elements that should appeal to liberals (it doesn’t rely on draconian prison sentences) and to conservatives (it stresses individual choice and moral accountability).

In many states, the majority of prison admissions come not from arrests for new crimes, as you might think, but from probation and parole violations. Nationwide, roughly two-thirds of parolees fail to complete parole successfully. Todd Clear, a professor at John Jay College of Criminal Justice in New York, estimates that by eliminating imprisonment across the nation for technical parole violations, reducing the length of parole supervision and ratcheting back prison sentences to their 1988 levels, the United States could reduce its prison population by 50 percent.
Absolutely, but I'm not sure that is what this article, by Jeffrey Rosen, seems to be saying. In fact, "immediate, yet moderate, sanctions" for parole violations, including "short jail term proportionate to the severity of the violation," is counter-intuitive to what Clear, Sen. Jim Webb and other penology reformers are arguing.

And while this seems, on the whole, to be a "new" interpretation of deterrence, there are also similarities to the Classical School of Criminology (ca. 1770's).
Ever since the days of Cesare Beccaria, the 18th-century philosopher and death-penalty opponent, classical deterrence theorists had focused on credibly threatening individuals; Kennedy’s first innovation was to focus on increasing the legitimacy of law enforcement in the eyes of groups.

In all of this, Kennedy’s insights were supported by a variety of recent research suggesting that people are more likely to obey the law when they view law enforcement as fair and legitimate...Similarly, the legal scholar Paul Butler argues in his new book, “Let’s Get Free: A Hip-Hop Theory of Justice,” that widespread incarceration in the 1980s and ’90s undermined the legitimacy of law enforcement in the eyes of the affected communities by converting a prison term into something heroic rather than stigmatic.

The judges and scholars developing new deterrence strategies are changing the way we think about parole, probation, gang violence and drug markets. But the strategies also present a rare opportunity to persuade the nation’s policymakers that the most urgent case for prison reform is not only economic but also moral and practical. Yes, it’s an outrage that the United States locks up citizens for so long with such uncertain effect; but it’s also self-defeating, because long sentences give rise to a crisis of legitimacy that can lead to more crime, not less.

A crisis of legitimacy may sound like a huge, perhaps intractable problem, but the tantalizing promise of the new deterrence thinking is that the crisis can actually be solved, practical step by practical step. The relative simplicity of the solutions, it turns out, is at the core of their radical potential.

Agreed, but this is easier said than done, particularly in those communities where criminal justice legitimacy is not only low, but non-existent.

I'm also troubled by the use of parole and probation to achieve this deterrent effect. If lowering the technical violation punishments can actually bring greater deterrence and lower incarceration, wonderful. But using probation and parole more than it is currently being used (over 4.3 million probation; 800,000 parole) is not necessarily a good thing either (as I've written previously, the rule of thumb for probation should be: does the crime warrant jail/prison time? If not, you shouldn't be on probation).

In that sense, growing probation/parole only keeps more people in corrections. I applaud Kennedy's work and Rosen's article, but fewer people in the ENTIRE correctional system should be the end goal.

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