Unfair (30 page)

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 murders 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.

We are so obsessed with the idea that the experience inside prison must not be like the experience outside that we overlook how much harder that makes it for inmates to rejoin society once they are released. Depriving people of normal human contact does not eliminate criminal behavior; it eliminates the capacity to engage in normal human contact.
Losing the stimulation of work, entertainment, or socialization does not prompt people to make better choices in the future; it leaves them unprepared to get a job or interact with the outside world when they are released.

One of the strangest side effects of our ineffective and unfair
incarceration system is that it may also make people less likely to follow the law in the first place. To many policymakers, severe mandatory sentences seem to offer a powerful incentive to follow the rules.
But the extreme harshness of our punishments may actually increase the likelihood of malfeasance because they suggest that the law is not worthy of respect.
If a couple of garage break-ins over the summer and a stolen car can land a nineteen-year-old in prison for life, then it is hard to trust the system, believe in its rules, and rely on its processes and officers.
Research has shown that citizens are more willing to defer to the decisions of legal authorities and more willing to follow the law when they see those authorities and legal rules as legitimate.
In one study, a group of participants read about a proposed law that seemed unjust because it raised civil liberties concerns or hurt certain citizens, while another cohort read about a seemingly just law.
Those who had read about an unjust provision were more likely to report that they planned to disregard other completely unrelated criminal laws in their day-to-day lives.

The same dynamics play out in the real world.
One of the reasons that Hawaii's HOPE program has been so successful is that it has bucked the trend and made procedural justice a key component of its deterrence approach. From the outset, Hawaiian offenders understand that judges and probation officers want them to succeed.
And although the punishments are consistently enforced, they are not overly harsh (a failed drug test often means simply a few days in jail), so defendants view the penalties as fair and legitimate. This perception, in turn, seems to encourage program participants to show greater respect for the law.

Yet the HOPE initiative is the rare exception, and while the program has done an admirable job of crafting an approach that more effectively deters, there is serious reason to question whether deterrence should remain a major focus of our correctional system. Ultimately, it is not enough to ask whether our current approach to punishment deters some set of criminals (or whether it could be
properly reformed to deter more); we must also ask whether any benefits that accrue are worth the costs.

A trip to the pokey doesn't come cheap; nor does an execution.
The total bill for our correctional system is some $60 billion each year.
A year in a New Jersey prison costs more than a year at Princeton University.
The trends are equally disheartening: state spending on prisons has outpaced spending on higher education in the last twenty years, increasing at six times the rate.
And the cost of building and managing a supermax facility is generally two or three times the cost for other kinds of prisons.
The irony is that spending money on education—in particular to keep male high school students from dropping out—appears to be a far more effective way to combat crime.
Time in the classroom reduces the opportunity to get into trouble, helps instill positive values, and provides skills that lead to better jobs, diminishing the need to offend and increasing the perceived cost of being caught and imprisoned.

None of this, of course, takes into account the broader costs of our current punishment regime.
As the Commission on Safety and Abuse in America's Prisons explained, “Many of those who are incarcerated come from and return to poor African-American and Latino neighborhoods, and the stability of those communities has an effect on the health and safety of whole cities and states.”

In the end, the biggest cost may come to the values we say we hold dear. We say we want a system that is humane, but we deliver unimaginable suffering. We say we want to punish only those who deserve it and to punish in proportion to their wrongdoing, but we end up punishing randomly or, worse still, delivering the harshest experiences to those who least deserve it. We say we want to protect ourselves and reform prisoners, but instead we teach them brutality and leave ourselves less safe.

If we were somehow able to remove our cognitive blinders, we would never design our system of punishment as it currently stands. We would forget Eastern State. We would start again.

Halden is one of Norway's highest-security prisons.
It houses murderers and rapists.
But there are no bars on the windows.
You cannot see the huge wall that surrounds the prison—just trees.

It was not built to intimidate or deter or separate.
It was built to rehabilitate.

The facility has a sleek, minimalist aesthetic.
Each prisoner is given a room with a flat-screen television, a toilet (behind a door), a shower, a fridge, and a desk.
Linked to every ten or twelve rooms is a common living space.

Prisoners are locked in their cells only during the evening, with the day open for educational, vocational, and leisure activities.
The prison has several workshops and sports facilities, as well as a library, a chapel, and a school.
The inmates often save up their money to buy ingredients—including wasabi and garam masala—for communal cooking.
There are tablecloths on the tables.

The prison staff aren't cast as unyielding enforcers, as in the United States; their role is to help inmates overcome their criminality and change their lives.
And effort goes into fostering family ties (including permitting overnight stays in a house located at the facility) and preparing prisoners to reintegrate back into society.

It makes sense, according to Halden's governor, because everyone is eventually going to be released. A monstrous prison will create monsters. And what is the point of that?

Halden will never be repurposed as a haunted house or host dozens of paranormal investigations because, unlike Eastern State, it isn't scary, and it wasn't designed for suffering. It is hard to think of a model more different from our own.
When Eastern State's architect, John Haviland, put his pen to paper, it was to “strike fear into the hearts of those who thought of committing a crime.”
And the grim fortress that he engendered has left a frightening legacy: in the United States, we are still wedded to
the belief that the best way to protect the public is through harsh punitive sanctions and incapacitation. But times have changed. If once Europeans flocked to Pennsylvania to learn about its novel penitentiary, it is now time for Americans to look across the Atlantic.

In 2013, more than 150 years after Tocqueville and Dickens visited Eastern State, a delegation from Pennsylvania traveled to northern Europe to tour prison facilities, meet with inmates, and talk to correctional officials. What they found startled them.
At the German and Dutch prisons they visited, inmates were making meals, wearing their own clothes, and locking their cells with keys when they went to work or study.
Women with children under three had them by their side in special mother-baby units.
And prisoners were provided with frequent home leave.
Solitary confinement was very rare—a last resort—and restricted to short amounts of time (just hours or a few days), with provision made for regular human contact and the opportunity, with good behavior, for an early return to the general population.
To encourage proper conduct, positive reinforcement was used far more often than harsh discipline.
And when offenders were released, they were not permanently excluded—as is commonly the case in the United States—from voting, receiving government benefits, or enjoying other normal rights of citizenship. They were free.

The reason is simple: Germany and the Netherlands, like Norway, have organized their penal system around resocialization and rehabilitation.
It's right there in their laws.
Germany's Prison Act, for example, makes rehabilitating the inmate the
sole
aim of incarceration; protecting the public is simply a natural outgrowth of ensuring the inmate's successful transition back into society upon release.
To help inmates with that eventual transition, the conditions inside the prison resemble the conditions outside as closely as possible. The rehabilitation model brings special benefits to mentally ill offenders.
Incarcerating them makes little sense in this context, so in Germany they are instead placed in
psychiatric hospitals, where they can get the specialized care they need to get better.

It is easy to think that there must be a catch or a trick. But the numbers suggest that the northern European model works.
Norway has one of the lowest recidivism rates in the world—20 percent after two years. And reoffending in neighboring countries is also far lower than in North America. Do some prisoners take advantage of the comparative leniency? No doubt, but the numbers seem small indeed.
In Germany, only one percent of prisoners fail to report back to prison after being given home leave.

Could America ever give up its punitive bent and focus on rehabilitation? There are plenty who would point to our unique culture to suggest that it's a fool's endeavor. The public wouldn't stand for it, they warn. Our criminals are more dangerous. We've always been a sink-or-swim nation: freedom to succeed and freedom to fail. No handouts. No tears for the wicked.
And it's true that the success of European prisons is facilitated by a much more robust social safety net and a political environment in which civil treatment of offenders is more widely accepted. But the differences can be overdrawn.
Britain, which managed to turn away from long-term solitary confinement starting in the 1980s, had—like us—a history of prison attacks on staff, murderous psychopaths, and inmate groups intent on undermining the correctional system.
But British leaders found the courage to pull their punches, to give those behind bars more command over their lives, and things didn't get worse—they got better.