Matthew T. Mangino |
GateHouse Media
May 5, 2017
America incarcerates more people for longer periods of time
than any other country in the world.
Why?
To answer that question it is imperative to determine how
men and women end up in jail and prison. Generally, judges sentence individuals
convicted of a crime to a period of incarceration. The time spent behind bars
is punishment.
Any meaningful effort to address the nearly 2.2 million
people incarcerated in this country would need to examine the reasons why
judges sentence people to jail and prison.
The theory behind punishment is supposed to be more than an
“eye for an eye.” Most sentencing schemes across the country incorporate four
theories into sentencing — incapacitation, deterrence, retribution and
rehabilitation.
Incapacitation is the simplest and maybe the most sinister
theory of punishment. If an offender is incarcerated he or she cannot commit
more crimes while locked up. If we took everyone inclined to commit a crime off
the street we would have fewer crimes and fewer people on the street.
There is no question that incapacitation reduces crime rates
by some unknown number. The problem is that it is very expensive.
Incapacitation carries high costs not only in terms of building and operating
prisons, but also in terms of disrupting families and diminishing communities
and neighborhoods — continuing the cycle of crime.
Is incapacitation worth the cost? Sure, a violent offender
who has multiple offenses should be incapacitated. Should a chronic shoplifter
or drug user be incarcerated? They may be a nuisance, but are they a danger?
Does punishment deter crime? Those opposed to the death
penalty say absolutely not. A number of states with the death penalty have
higher homicide rates than states without the death penalty. If the harshest
penalty imaginable does not deter crime, how can a period of incarceration?
Generally, supporters of deterrence suggest that punishment
deters crime if it is swift and certain. They also point to the distinction
between general deterrence and specific deterrence. General deterrence uses the
person sentenced for a crime as an example to induce others to refrain from
crime, while specific deterrence punishes an offender to dissuade that offender
from committing crimes in the future.
Recidivism rates of former prisoners seems to challenge the
effectiveness of specific deterrence. There are limits to the impact of general
deterrence as well.
Do offenders think about the consequences of their conduct?
General deterrence would make sense if an individual did a cost benefit
analysis before committing a crime. Something like this, “If I rob the
mini-mart I could go to prison for 5 years — but if I get away I could make
$5,000.” That scenario is unlikely. Most crimes are impulsive, such as crimes
of passion and crimes committed while under the influence of drugs or alcohol.
Those crimes cannot be deterred.
The theory of retribution suggests that the severity of
punishment should be proportionate to the seriousness of a crime. Retribution
is a subjective, backward-looking theory of punishment. The criminal justice
system has a difficult time in matching punishments and crimes. How does a
court uniformly determine the moral depravity of a crime or the impact of a
specific punishment on a specific offender?
Finally, and often overlooked or minimized, is
rehabilitation. Correctional interventions — such as drug-treatment or
cognitive restructuring — seek to change the conduct and thinking of offenders.
Rehabilitation is a forward looking theory of punishment.
Unfortunately, the cost of rehabilitation, inside and
outside of prison, is a hard sell. With inadequate funding, correction
officials, prosecutors, judges and legislators never get to see the full
potential of rehabilitation.
Does society have another viable option? Punishment for
punishment’s sake is costly and all but a small percentage of inmates will get
out of prison someday. Society would benefit immensely if those inmates were
prepared to reenter society as productive, law-abiding citizens and only
rehabilitation has the promise to make that happen.
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C.
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