We Can’t Just Talk About it, We Need to Fix the Criminal Justice System

Over the past 30 years, our nation has built an edifice of intolerance, unkindness and lack of direction around our criminal justice system, which reflects poorly on us and has devastating consequences to our social fabric. We know we have the human instinct to punish. The question we must ask ourselves is whether we possess the human instinct to forgive.

The school-to-prison pipeline is well documented. People are imprisoned for increasingly longer sentences, families are broken up and communities lose their continuity. The United States has the highest incarceration rate in the developed world. California spends 7.4% of its annual budget on prisons, the state Department of Finance reports. If one could point to positive metrics upon release from prison, perhaps one could make an argument that the system works. But rehabilitation is hardly a factor.

Our criminal justice system and how we view crime and punishment is a model of cruelty and indifference to humanity. I suggest the key to our collective safety is not length of incarceration but the quality and purpose of that incarceration.

Punishment has several somewhat-interrelated purposes:

• • The specific deterrence of the individual (that person can’t commit the crime again and locking up him or her keeps us safe)
  • General deterrence of others (by seeing the punishment, others will not commit a similar act)
  • Retribution (people “deserve” to be punished)
  • Societal statements of an underlying morality that somehow “purifies” society (i.e., telegraphing society’s purity by punishing those who have transgressed)

All these are the traditional justifications for why we imprison people. They don’t address what happens in prison, and how people can emerge as productive members of society.

Dating to Hammurabi’s Code (circa 1754 B.C.E.), “an eye for an eye” doesn’t mean “take at least an eye.” Rather, it means the punishment can be no greater than the crime committed. Yet, our criminal justice system removes people from society for prolonged periods of time that only sometimes are related to the gravity of the crime. What else can explain the “three strikes” rule, significant jail time for drug-related crimes, or the length of mandatory sentencing guidelines? All this points to a society seemingly unconcerned with rehabilitation and hellbent on retribution.

Added to the problem are systemic reasons why so many are incarcerated for long periods of time.

Our criminal justice system and how we view crime and punishment is a model of cruelty and indifference to humanity.

Our focus on “law and order” rather than “to protect and to serve” makes police officers feel they are there not to be part of the community they are serving. Instead, they are being told to protect “us” from “them.” On a bright front, there are police officers whom I have met who are making differences in reducing crime, and dealing with helping young people traumatized by violence. Until more police officers are seen as part of the community rather than policing the community, I fear we will find it difficult to make our cities safer, and the underserved and mentally challenged better understood and served.

We have a public-prosecutors system that rewards prosecutors for wins and for extracting the greatest sentences. Often, extenuating circumstances, legitimate alibis and scientific exoneration are not even part of the program. Plea-bargaining with defendants who cannot receive adequate defense leads everyone —particularly the poor — to accept a sentence even when it would be in his or her best interest not to do so.

Even if one is worried about recidivism, what is accomplished by housing 50-something people in horrible conditions when statistics show that by that age, crimes generally aren’t committed?

The idea that victims’ relatives should be allowed to speak to the judge at sentencing is absurd. It’s not about “victims’ rights.” The victims should be compensated by society for their losses (or in civil court for some form of restitution). There is no place for “piling on” because relatives tell tearful stories. 

Prosecutors should not be permitted to speak against the parole at parole hearings. The hearings themselves are not about punishment — that’s already been meted out. These hearings should determine whether the person is sufficiently rehabilitated.

We are in a moment when rethinking our objectives in criminal justice is in order. Perhaps we have evolved such that we no longer crave the retributive punishment that satisfies base human attributes to inflict pain. Perhaps the statement we should be making is that we care about the crime, but we also care about the person. We need to refocus on rehabilitation and job training. We need our justice system to be one of fairness and moving forward — not merely a system of long-term incarceration. Some of this is fueled, of course, by prison guards’ unions and the corporate jail system, both areas in need of examination and reform.

Finally, let’s acknowledge that many crimes are not crimes at all; they are illnesses. People who are addicts are not in full control of themselves. We should treat them as ill, not as criminals, and should fashion rehabilitation accordingly.

The idea that victims’ relatives should be allowed to speak to the judge at sentencing is absurd.

We throw around prison sentencing guidelines and prison terms as if they’re Monopoly money. Should a particular crime bear a three-year prison term? Or 20? Or life? Does society get more “bang for the buck” from more years behind bars?

It seems to me that the denial of someone’s liberty for any time is a meaningful punishment. None of us would want to spend a month in prison, much less a year. Even a few years is more than enough to separate convicted criminals from society. So let’s shorten terms.

It seems prison is about three things: deter other crimes, satisfy ourselves that the person will not commit a similar crime in the future, the person can reenter society and be productive.

We spend far too little time on understanding these last two.

There are a number of things we can do to reduce prison populations and redirect dollars where they can be of greater help.

We need our justice system to be one of fairness and moving forward — not merely a system of long-term incarceration.

All crimes that do not involve murder, rape or the attempt of either, or use of a deadly weapon in the commission of a felony, have a three-year maximum term. That’s it. Spend all the money that would have been spent on longer periods of incarceration on job training and counseling. At the end of three years, it is incumbent upon a third-party arbiter to make the case that either the person is not rehabilitated or it is reasonable to assume he or she are at high odds to commit a similar crime again. If not, away they go.

1. 1. All crimes that involve the use of drugs (versus its sale) carry a maximum one-year term. All users should be in a drug rehabilitation program while imprisoned. All these people, upon release, would be subject to periodic review and continued treatment.
   2. With respect to more serious crimes, consider early release, particularly after age 35. Most crimes are committed by young men. Although much is not known about the reasons, some researchers suggest that until the risk-reward center of the brain is fully developed at age 25, criminal behaviors are more likely. The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system, notes that criminal careers don’t last very long. Alfred Blumstein of Carnegie Mellon University, a leading criminology researcher, has determined that most criminal careers have a life of five to 10 years. The commission of violent crimes pretty much ends in the mid-30s. So why are there people aging and dying in prison?

What can you do? Vote to let felons vote. It will be on the ballot in November. After they’ve paid their debts to society, let’s mark it “paid in full.” Let’s not require them to identify as criminals for the rest of their lives. After a year out and “clean,” former felons should be just like you and me. Also on the ballot in November is the elimination of the cash bail system. Bail should be based on ensuring those with flight risk can’t flee, not on whether someone has the bail money.

Society needs to address some of the inherently unfair aspects of police questioning, police misconduct and a system that rewards prosecutors for overreach. Something must be done to fix the system so we can be safe, suspects receive a fair shake, felons are rehabilitated and we can improve, rather than ruin, lives.

Glenn Sonnenberg is the former president of Stephen Wise Temple and is on the boards of the Jewish Federation, the Children’s Institute, Wayfinder Family Services, Bet Tzedek and Center Theatre Group.