Does Jail Work?

It seems that many U.S. counties have aging county jails, sometimes poorly maintained and often overcrowded. The "solutions" proposed to such a problem is often to build a larger county jail, or to rent space from another county which has an excess of jail cells and house prisoners in that other county's jail. Sometimes, as is presently the case in Washtenaw County, Michigan, the proposal for a new jail also includes funding for jail alternatives.

I don't doubt that incarceration in a county jail can have a deterrent effect. I don't dispute that, with some individuals, it has a profound rehabilitative effect. But it also seems to me that the population we most wish to deter through the threat of jail is often the least intimidated by its prospect, and the population we least need to deter is the most intimidated.

By way of example, it is not unusual to encounter a first time offender in a criminal law practice who is so mortified and humiliated by an arrest, an overnight in jail, and then being processed through the criminal justice system that you can be pretty sure that they won't reoffend. A hard drinker might quit alcohol after a drunk driving offense. A teenager might see shoplifting in a whole new light when the thoughts of jail and probation overshadow thoughts of college. But at the same time, the guy who protests at the criminal clerk's office that he would rather spend 15 days in jail than pay a $150 fine (something I have in fact witnessed) obviously doesn't share what might be called the traditional middle class perspective on jail.

There is also the belief, both in short-term incarceration and long-term incarceration, that repeat offenders should get progressively longer sentences. Thus, one might see a first time drunk driver get a sentence of probation, a second-time drunk driver spending a month in jail, and a third-time offender spending six months. Unfortunately, I have seen little evidence that the habitual drunk driver is deterred by the prospect of jail - if the first jail sentence doesn't inspire reform, there is a deeper issue at play, perhaps the extent of the defendant's alcoholism, or perhaps the extent to which the defendant's values simply don't align with what the system "expects" of a defendant.

It is interesting to sit through a session of a busy District Court, Michigan's trial court for misdemeanor offenses, on a morning when the arrestees from the night before are being arraigned. Some courts will have the arrestees sit in the jury box as they await arraignment. It is not unusual to see a person among them who looks mortified and traumatized. But it is common to see a significant number of arrestees (ones we might deem "regulars") smiling, laughing, joking, and chatting with each other as if they were waiting for a movie to start. I am simply not convinced that those people are much affected by whether a judge sentences them to ten, twenty, thirty, sixty, or ninety days, or even to six months or a year in jail. They don't want to get caught, but perceive that consequence as "no big deal". With habitual petty criminals, the biggest difference in sentence often seems to be its ultimate cost to the taxpayer.

Frustrations with the effectiveness (or ineffectiveness) of jail have inspired sentencing alternatives, including diversion programs, county work crews (a modern variant of the "chain gang"), "name and shame", and house arrest, and have inspired legislatures to add penalties such as forfeiture or driver's license sanctions onto a variety of offenses. It is not unusual to see a judge or a probation officer express frustration as to how to reach a particular defendant, particularly one who seems to have a lot of potential if only he would stop breaking the law. You may even encounter some people who propose a return to corporal punishment - bringing back public floggings, if not the stocks and pillory. (And you may take note of the "street justice" that some police officers have historically meted out to individuals they deemed unsavory, sometimes with tragic results.)

There do not seem to be any easy answers to this conundrum. But perhaps counties could pool some of the money that might otherwise be spent on longer incarcerations and larger jails, and at least conduct some empirical research into the effectiveness of various sentence lengths and of alternatives to incarceration.

Comments

[Mike]

It is not unusual to see a person among them who looks mortified and traumatized.

Yeah -- I look for those guys in an exercise called: Can You Spot the Innocent Guy?

[Three Generations]

Shaming used to be the punishment du jour a few centuries ago. Given today's society, where image seems to be most important, it might not be that bad for us to return to that. I'm also all for inmates working. Keeps them occupied; they can learn a trade and it dispells public notion that inmates live charmed lives.

Also, and I know this is oft-said, I seriously think some of the money allocated towards prison management should be diverted into studying drug/alcohol rehabilitation programs. I'm not sure I buy into the "you can't rehabilitate an addict" argument. I just don't think we've created an effective program/model yet.

[Aaron]

Thank you for your comments.

A few centuries ago, many shaming sentences took the form of things we no longer view as civilized, and would also now regard for many petty offenses as disproportionate - branding, being sentenced to the stocks or pillory, or a public whipping. Now we seem to think of shaming as a special license plate for drunk drivers, a notice in front of a house, the publication of offender nffender names and pictures for certain offenses, and similar announcements to the public. Which, I suppose, are in some respect reminiscent of Hawthorne's Scarlet Letter.

In my opinion, shaming still works - but not with everybody, and those most shamed by involvement with the criminal justice system are those who typically need the fewest "add-ons", such as the publication of their pictures in the newspaper. The drug addicts and alcoholics you allude to in your last paragraph are apt to make their drug buys and commit their DUI's despite "shaming" penalties because they are driven by addiction. The person who does not expect to get caught is not likely to be deterred by "shaming", and those most likely to view shaming as a serious penalty are will for the most part be sufficiently shamed by a night in jail, or by having some subset of their families, employers, and peers learn of their legal woes.

Unfortunately, "shaming" is of little value to those segments of society who we would most like to affect with "shame", which often seem also to be those most likely to view a jail sentence or public announcement of their act as a rite of passage, or as of no major significance in their lives. (As Dylan sang, "When you got nothing, you got nothing to lose." And even if it did have an initial effect, a second shaming probably has less of an effect in the event of recidivism.

If handled properly, shaming seems likely to have some deterrent effect on middle class youth crime, and if applied with sufficient publicity and frequency would probably deter some drunk driving behavior. But that, unfortunately, is the tip of the proverbial iceberg.

One of the reasons inmates are not put to work is because of the costs involved. When you find a type of work which inmates can do at a minimum of expense to the public (e.g, a laundry), and with the limited job skills many bring with them to prison, private sector merchants (and their elected representatives) often strenuously object to the use of prison labor to compete with their private enterprises. And many "prison industry" job skills seem to have limited value post-release. I do think that there should be job skills programs in jails - even short-term inmates can benefit from lessons in how to look for a job, how to interview, why they need to get to work on time, and appropriate on-the-job demeanor. (I would even give them an alarm clock as a delightful parting gift.)

I agree with you wholeheartedly about rehabilitation programs for addicts, and you will likely be interested to learn that Wayne County is reportedly experimenting with a buprenorphine diversion program for opiate addicts. I have enough experience with addiction to believe that an addict must want to quit before rehabilitation is likely to be effective, but a "carrot and stick" approach with appropriate counseling, and appropriate medical support, can help some people get to that point. I once had a client effusively thank a judge for sentencing him to twice-weekly AA meetings, which he credited with helping him break decades-long and worsening alcohol addiction. As cynically as some view the sentence of AA or NA meetings, it does seem possible (particularly if we start collecting data and doing empirical research) to see what is working, and who the best subjects are for diversion and treatment.

[Three Generations]

You're absolutely correct with a lot of the points you raise. I really wasn't advocating branding people (it may be unclear from my post - because of my lethargic nature, I rarely fully explain myself, hoping that the reader gets the gist of what I want to say).

This conversation then raises a very important question: Who do we shame? What methods do we use and what do we do with those who cannot be shamed.

Let me state, first of all, that I am a public defender. So some of my comments may seem incongruent with my job description. However, I am not an advocate for not incarcerating anyone (I doubt anyone actually thinks that, but.), merely an advocate of the Constitution.

Having said that, I do think that the first place to start would be with youthful offenders. I'm not quite sure that a closed, sealed hearing which a probationary period is going to cut it for most youths in today's rough and tumble world. Perhaps a photograph, as you suggest, in the local newspaper (yes, I realize these cases are sealed - i'm fantasizing here) and to take it one step further, a picture of the parents as well. Parents are taking far too little responsibility for their children's actions and it's time we put it back squarely on their shoulders.

Fortunately, punishments like whipping and riding backwards on a donkey while your face is painted black are beneath our cultural sensitivity. But the principle still applies. The one thing every human values highly is pride and if that pride is damaged, inroads can be made. Sitting in jail, for "those segments" is more often than not, unproductive. Maybe mandatory schooling in jails is a solution, where they spend more time reading and learning.

The problem is deeper than most people imagine, in my opinion. It is a reflection of our changing society and a lack of emphasis on education and knowledge. We need to change that before we will start seeing an impact on our prison population.

I fully understand that being incarcerated is no walk in the park. Yet, I do not wish to treat inmates like forgotten citizens and apply the old adage "out of sight, out of mind". For that is nothing short of a grave error. They are members of our society, they can be productive. I do not suggest that they should all be made telemarketers, but there's nothing wrong with physical labor. Break stones in a quarry, work for road crews, bind books. Sure, some of our goods might become a little more expensive, but the money saved from recidivist incarcerations will more than compensate. Not to mention the productivity they will bring to society.

I seem to have lost my way, so I will stop here.

[Aaron]

Please excuse any ambiguity in my comment. I know you weren't proposing branding people - I was merely meaning to illustrate the extremes of past centuries' "public shaming" methods. Anecdotally, I don't think that some of the more attention-grabbing current variants have been effective, not because I have any hard data, but because those models don't often seem to be emulated and, after the initial headlines, many seem to be quietly discontinued.

It doesn't surpise me that you are a public defender. That puts you in one of the best positions in our society to observe the effects (and failures) of current sentencing policies and practices. A job where you will meet many people for whom going six months without an arrest seems to be an impossible dream. (I once had a client who hadn't gone a full six months from the age of 13 without a new criminal conviction, despite frequent short-term incarceration. He didn't show up for sentencing, so when he was finally picked up on a bench warrant the judge broke his streak by imposing a six month sentence. This client was able-bodied and fully capable of work, although probably sociopathic. As a public defender, you can probably guess with about 80% accuracy the circumstances of his childhood.)

A friend who used to do a lot of public defense work once joked, after representing a particularly difficult client, that he favored restoring the death penalty - but only on the motion of defense counsel. At least, I think he was joking. ;-)

[Three Generations]

You know what, I should further clarify some things. Most of my clients are currently incarcerated (I do post-conviction work) and are challenging their convictions. I have clients who are serving sentences ranging from 2 years to life. What I have seen, is that it is the inmates who are serving much shorter sentences who are not "rehabilitated". Most of my long-term guys (8 years and up) seem to have genuinely changed or in some cases, simply grown up. They don't make grandiose claims about walking the straight path or going clean. They just talk about getting out of there, never coming back and moving on with their lives.

Wow, some might think I am advocating stricter, longer sentences. I am not. What I would love to study, however, is why is that so? Why do inmates serving longer sentences adopt such a view? Is it because they are resigned to the fact that they have nowhere to go and are losing a large portion of their lives? That then dictates that perhaps we should impose longer sentences for first time offenders and shorter sentences for recidivists. Scare the hell out of them the first time they get there and then if they repeat, try tackling it another way.

The underlying theme of all of this, ofcourse, is that we need to give some serious though to our prisons and prisoners, not with a view to forgetting about them, but rather with a view to doing something beneficial and reconstructive.

Some people liken crime and criminals to disease. Using that analogy, sure one would possibly quarantine an individual, but surely not indefinitely? At some point, one must begin to cure and ultimately, to prevent. Apply the same principles to crime and I sincerely believe that slowly, but surely, we shall see progress.

[Aaron]

I recognize that longer-term incarceration can have some very different effects on inmates. I am not sure that longer sentences are needed for first offenders - unless that is the only way to reach them. (I do believe that many people are deterred from crime by fear of incarceration, but I also believe that most criminals have convinced themselves that they won't be caught and are thus not much deterred by the penalty once they have decided to commit the crime. This is yet another area where empirical studies might help, were anybody collecting data for analysis.)

Crime is an area where the axiom that an ounce of prevention is worth a pound of cure can make a lot of sense. But we, as a society, have opted not to invest or to underinvest in care for the indigent mentally ill, effective intervention for at-risk youth, and other programs of prevention. One would think that the raw economics would make people reconsider incarceration - or at least try to figure out how to apply it in its most effective manner - but it sometimes seems that anything goes when being "tough on crime".

I agree with the observations about jail, posted on CrimLaw.

[Aaron]

On a related note, CrimProf Blog describes a research-based article which asks Does Criminal Law Deter.

[Three Generations]

Yes, I read both those posts and CrimLaw does raise valid points.

One thing that I wanted to point out that really irks me, is that in my jurisdiction (I don't know how it is where you practice), inmates who discharge their sentence are not given any gate pay. Sometimes, they are dropped of in one of two major cities and left to fend for themselves. This I find rather counterproductive.

The state "punishes" an individual for committing a crime, locks him away for years and then just kicks him back out into the open world. I have had clients say to me, "What am I to do? I have no money, nowhere to go. Shelters won't take me. I can't get a job. How am I supposed to eat or sleep or live?" The obvious answer, however unpopular, is that they would end up doing something criminal again, in order to survive. Perhaps there needs to be a study of recidivism and the causes for that. I would not be surprised to learn that economic desperation is a huge motivating factor.

People will continue being "tough on crime" as long as they live in an isolated bubble of suburbia. Most people who take that stance have not fully understood how fallible we as humans are and how restrictive our penal code is. They also do not understand the severe economic desperation of underpriviliged individuals. Until we start educating people (and this works both ways - the criminals and the hardliners), there will always be severe crime and severe punishments.

We should not lose sight of the fact that these are, after all, human beings. And to understand human beings, we need to understand their motivation.

[jay]

ok this is old news. this is the prime topic taught in corrections text books. so thanks for your opinions about something that has been and still is being studied. by the way, it's not only washtenaw county, ITS EVERY JAIL. the average jail and state prison run at 150% occupancy. and everyone KNOWS jail doesn't work, that has very little to do with why we still send people there. would you want a murderer or child molester to be put on probation instead of jail and live next door to you? so checkmate, these people will go to jail until there is an alternative to send them to. i say ship murderers burglars rapists and all the other cast outs of society to the bottom of the ocean. the spanish inquisition had the right idea and i don't think people dared commit crimes during that time. people need a hard punishment in order to fear the law. todays correctional society has spawned some of the worst criminals because people are no longer afraid of johnny law. to some people jail is just like summer camp and they could care less.

[jay]

ok this is old news. this is the prime topic taught in corrections text books. so thanks for your opinions about something that has been and still is being studied. by the way, it's not only washtenaw county, ITS EVERY JAIL. the average jail and state prison run at 150% occupancy. and everyone KNOWS jail doesn't work, that has very little to do with why we still send people there. would you want a murderer or child molester to be put on probation instead of jail and live next door to you? so checkmate, these people will go to jail until there is an alternative to send them to. i say ship murderers burglars rapists and all the other cast outs of society to the bottom of the ocean. the spanish inquisition had the right idea and i don't think people dared commit crimes during that time. people need a hard punishment in order to fear the law. todays correctional society has spawned some of the worst criminals because people are no longer afraid of johnny law. to some people jail is just like summer camp and they could care less.