Unfair (36 page)

On a related note, we should make full restoration of the rights of citizenship a goal for every prisoner. Today, even after someone has repaid his debt to society, his criminal record continues to hold him back in countless ways.
Roughly nine out of ten employers look into the criminal histories of the people they are considering hiring.
And criminal records are also used to deny people welfare benefits, rental housing, loans, and voting rights.
The problem is that although a person's criminal record stays with him forever, its usefulness in predicting reoffending decreases significantly over time.
Across a range of offenses, experts have tracked what they call the “point of redemption”—usually three to seven years after the crime—at which time a previous arrest ceases to make an individual more likely to be rearrested than someone in the general population. We can't tie anchors around people's waists, toss them in the deep end, and expect them to swim. If our goal really is for those who have committed crimes to become productive citizens, we've got to give them
more
help than other people, not less.

Eliminating the sharp, adversarial divisions within our criminal justice system and cultivating empathy raises an intriguing question: why not get rid of blame as an organizing principle altogether? Why not instead treat crime like a public-health issue—an epidemic that we are all fighting together?

The more we understand the genetic and environmental factors that shape criminal behavior, the more it looks like a disease, and the less our current framework of ascribing moral responsibility appears justifiable.
We're told that horrible acts reflect wicked dispositions and bad, but voluntary, choices. We're told that offenders are worthy of condemnation because they knowingly disregard the rules in pursuit of their own repugnant desires.
But that just doesn't mesh with a nuanced understanding of human behavior.

It is not a coincidence that roughly a third to a half of the American prison population suffers from serious mental disorders.
It is not a coincidence that those who are incarcerated are disproportionately uneducated, poor, and survivors of childhood abuse and neglect. And while we already acknowledge that some harmful acts are not the product of free will—the man whose sudden seizure causes him to drop his baby cannot be said to have chosen to assault his child—the lines we draw between compelled behavior and voluntary, intentional conduct are a convenient fiction. They simply reflect the divide between the unmistakable, documented influences on human actions and the determinants that remain hidden. The fact that it is very difficult to figure out the particular nexus of factors that led a person to pull that trigger, kick in that back door, or write that bad check does not mean that he freely chose to commit a crime.

We need to quit wasting our time trying to sort out who
really
deserves blame. But how might we proceed? There is no quick and easy path through the thicket of laws, practices, and beliefs that take the existence of rational actors, good and evil, as a given.

We can start by acknowledging that removing blame from our
criminal justice system doesn't mean that harmful conduct would suddenly become acceptable or that people who commit crimes would suddenly be free from sanction.
The idea that if we stopped vilifying the criminal we'd have to treat rape victims and rapists exactly the same way is entirely false. Even without a legal framework grounded in personal volition and culpability, a serial rapist has still committed terrible acts that we would rightfully denounce, and we might very well prevent that person from interacting with society for the rest of his life. But we'd no longer subject individuals to poor treatment and contempt on the grounds that they're bad people who deserve it. We'd get out of the payback business. Instead, we'd focus on remedying the harm, rehabilitating the criminal, discouraging others from taking similar actions, and treating the conditions that precipitated the crime in the first place.

This may sound revolutionary, but it's really not so different from how we handle outbreaks of disease. When a dangerous virus overwhelms a town, causation is relevant, but blame isn't. We don't treat someone who has contracted Ebola or dengue fever as sinful. We get to work restoring the person's health, preventing new cases, and trying to eliminate root causes.

As we've seen, that basic model is already being embraced in certain countries. Innovative prisons like Halden show us what's possible. And Americans, too, might come to view prisons more as hospitals, with the focus on “treating” the underlying factors that lead to offending and quarantining certain individuals who pose a particular threat to the public and are incurable.

Indeed, there is strong precedent in the United States for moving the criminal justice system away from blame.
In the early twentieth century, juvenile courts were created with the idea that the state should not be a retributive punisher of delinquent children but rather a guardian of their interests.
The moral responsibility of the child became irrelevant; the focus was placed instead on rehabilitation.
Unfortunately, in the intervening decades, juvenile
proceedings lost this compassionate edge and came to look much like their adult counterparts.

Yet there are hopeful signs that the impulse to deemphasize blame may again be catching on.
In response to the failure of our legal system to address drug relapses, mental health problems, and high levels of reoffending, a number of jurisdictions have begun experimenting with community-based programs that reject a model of corrections focused on vigorous prosecution and harsh punishment.
One of the most notable developments has been the emergence over the last two decades of problem-solving courts, which divert offenders away from the single revolving door of the prison toward a forum where they receive tailored treatment based on their history of mental illness, drug abuse, or prostitution.
The underlying theory is that you cannot prevent reoffending unless you work to understand and address the true sources of criminal behavior, like addiction or schizophrenia.
So, rather than acting as adversaries, keeping one another at arm's length, the prosecutor, defense attorney, and judge work collaboratively to come up with a plan of treatment and monitoring. Offenders are not seen as evil people who deserve to suffer, but rather as individuals with serious long-term problems, who merit realistic expectations and compassion.
Drugs courts, for example, treat addiction as a disease and accept that those who are addicted to drugs will, in all likelihood, relapse. As a result, the zero tolerance and harsh reprimand systems inside prisons—and built into normal parole procedure—make little sense.
Problem-solving courts instead use empirically validated techniques to modify behavior, like ratcheting up minor sanctions after repeated failures (including community service, more drug testing, fees, homework, and occasional jail time) and employing simple reinforcement techniques.

And it works.
Research shows that the more humane approach of problem-solving courts—based not on hurting offenders in proportion to their wrongdoing but on helping them according to their needs—is more effective than highly punitive alternatives.
Those who come before mental health courts are less likely to reoffend, less likely to commit more serious offenses when they do, and more likely to experience improvement in their mental health.
Drug courts get similarly high marks on reducing recidivism and drug use, as well as on cost-effectiveness.

With more than three thousand problem-solving courts now operating in the United States—and others in countries as diverse as Jamaica, Brazil, New Zealand, and England—the future looks bright.
Yet they still handle only a very small fraction of the people who come through the criminal justice system.
And the major question is why all offenders don't deserve similar treatment. We need to make a better case for reform across the board.

One of the great benefits of removing blame from the system is that it allows us to turn to things we've been neglecting, like ensuring the healing of those harmed by crimes, including victims and their families, witnesses, and community members.
Victims shouldn't be pushed to the side and treated as mere pieces of evidence—they should be respected as integral parts of the proceedings.
It makes little sense that the U.S. Constitution focuses so much attention on the rights of the accused and convicted but fails to offer any protections to victims.
They should be permitted an active role in the various parts of a case, from initial hearings to plea bargains to sentencing and even post-conviction. The legal system should ask victims what they need to mend and work to achieve those ends. In some cases, that may mean facilitating apologies and aiding victims in forgiving those who have committed crimes against them.
Recent research suggests that such actions can be far more effective at repairing the harm than retributive punishment of the offender.
In fact, granting forgiveness may provide a victim with a heightened sense of justice and fairness, as well as improved psychological well-being. In other cases, catering to a victim's needs may mean figuring out how the perpetrator can provide restitution. Even if offenders are not treated as blameworthy, they ought to mitigate the impact of
what they've done. If you broke a glass while visiting a friend, it wouldn't matter if it was a complete accident: you would still help pick up the pieces, and if it had any real value, you would probably offer to replace it.

Perhaps the biggest consequence of moving away from a blame-based criminal justice system is a shift in societal resources from punishing crime to preventing it. Giving up a blame mindset lays the groundwork for transferring tax dollars from prisons and courts to schools, neighborhood improvement initiatives, and mental health care.
A single death-penalty case, from arrest to execution, costs a state government between $1 million and $3 million.
The average cost of housing an inmate in a supermax prison is approximately $75,000 a year. Justice is a finite resource: we have only so much money, so much time, and so much empathy. Should we spend such a large portion of what we have on trials and punishments? The fact that we still err despite our massive investments only strengthens the case for intervening before crimes are ever committed.

When we prevent a crime from occurring, we avoid nearly every one of the problems identified in this book. Yet we tend to think about criminal justice only after the fact. We wait for the shot to be fired. We wait for the claim of police brutality or the allegation of prosecutorial misconduct. We convince ourselves that reacting is just as good—that executing a criminal balances the scales of justice for the loss of the murder victim; that providing an appeal ensures that any error made during an investigation or trial can be set right. But that is always wrong. By focusing on responding, our criminal justice system always comes up short. Ask any murder victim's parent: no punishment can make up for what has been lost. And many criminals are never caught at all.

Moreover, we can expect to identify only a tiny percentage of the mistakes, biases, and acts of dishonesty marring the work of police officers, judges, jurors, and others. Most who have been wronged will never know it. Even if they do find out, the opportunity
to remedy the problem is severely restricted: people often aren't aware of their rights, there aren't enough competent attorneys to file complaints and appeals, and there's frequently no hard evidence to convince a judge to address the issue.
In only 5 to 10 percent of all cases, for example, is there a biological sample for DNA testing. And if a judge, two decades down the line, by some miracle, does acknowledge a suggestive eyewitness identification or a coercive interrogation and overturns a sentence, we still can't call it justice, for we placed an innocent man in a closet-sized cell for twenty years of his life.

The strongest argument for shifting resources toward prevention is simple fairness: we profess to care deeply about equality, but certain people have a much greater chance of ending up as criminals, and as victims. There is nothing inevitable about this. It is a lie to say that a significant rate of crime is unavoidable and that we must simply accept the status quo of thousands of people being shot and robbed and raped. The question is, how much do we care about other people—the unlucky ones? And how willing are we to invest in changing the environments that encourage criminality? Eliminating blame from our criminal justice system will push us in the right direction, because blame is often our best excuse for doing nothing.

The reforms I have suggested are only a small fraction of the possibilities, and whether we choose to pursue them will have less to do with our natural limitations than with our commitment to equal justice under the law. While some solutions require significant restructuring and long-term planning, many innovations in police protocol, rules of procedure, courtroom design, and our legal code are well within our reach today.

Unfortunately, when it comes to law, we have a particularly strong resistance to change and tend to believe that those before us were more enlightened and less fallible. We fetishize our Founding
Fathers and the learned jurists of old. We treat the frameworks they developed as optimal, incapable of improvement, and we therefore deny the very possibility of reform. But if they were alive today, the visionaries of yesteryear would have quite different visions. And our laws and legal practices are just as likely to benefit from the centuries of progress—and, yes, science—as building design, medicine, and transportation. To think that Henry Ford would build the same Model T today is absurd.
And yet we convince ourselves that James Madison would deliver an identical copy of the Bill of Rights—and that other modernizers of the criminal justice system would choose to disregard the latest research on human behavior if they were our contemporaries. But why?
Why should law be different?