Unfair (77 page)

It is not a coincidence that those:
Fried, “Beyond Blame.”

We can start by acknowledging that:
Fried, “Beyond Blame.”

The idea that if we stopped:
Gideon Rosen, “Beyond Blame,”
Boston Review
, July 10, 2013,
http://www.bostonreview.net/​forum/beyond-blame/gideon​-rosen-blame​-necessary-law
. It is true that, all things being equal, when we move away from believing in free will and having a system grounded in blameworthiness, there is a danger that people will actually commit more crimes. Research shows that reducing free-will beliefs can result in more dishonest behavior, more aggression, and less pro-social behavior. Clark et al., “Free to Punish: A Motivated Account of Free Will Belief,” 502; Kathleen D. Vohs and Jonathon Schooler, “The Value of Believing in Free Will: Encouraging a Belief in Determinism Increases Cheating,”
Psychological Science
19 (2008): 49–54, doi: 10.1111/j.1467-9280.2008.02045.x; Roy F. Baumeister, E. J. Masicampo, and C. Nathan DeWall, “Prosocial Benefits of Feeling Free: Disbelief in Free Will Increases Aggression and Reduces Helpfulness,”
Personality and Social Psychology Bulletin
, 35 (2009): 260–68, doi: 10.1177/0146167208327217; Tyler F. Stillman and Roy F. Baumeister, “Guilty, Free, and Wise: Belief in Free Will Facilitates Learning from Self-Conscious Emotions,”
Journal of Experimental Social Psychology
46 (2010): 951–60, doi: 10.1016/j.jesp.2010.05.012. But all things need not be equal: indeed, as we will discuss, we can replace these concepts with an approach that is likely to yield net crime-reduction benefits.

In the early twentieth century:
In re
Devon T., 584 A.2d 1287, 1291 (Md. Ct. Spec. App. 1991).

The moral responsibility of the child:
In re
Devon T., 584 A.2d at 1291.

Unfortunately, in the intervening decades:
In re
Devon T., 584 A.2d at 1292.

In response to the failure of our:
David DeMatteo et al., “Community-Based Alternatives for Justice-Involved Individuals with Severe Mental Illness: Diversion, Problem-Solving Courts, and Reentry,”
Journal of Criminal Justice
41 (2013): 64.

One of the most notable developments:
DeMatteo et al., “Community-Based Alternatives,” 66; David DeMatteo et al., “Treatment Models for Clients Diverted or Mandated into Drug Treatment,” in
Addictions: A Comprehensive Guidebook
, eds. Barbara S. McCrady and Elizabeth E. Epstein, ed. 2 (New York: Oxford University Press, 2013), 553. It is important to note that there are a number of community-based alternatives that may divert the offender from the normal criminal justice process at various points along the way, from the moment that he encounters law enforcement to just before trial to the time he is about to be released. DeMatteo et al., “Community-Based Alternatives,” 65. For example, a police officer encountering an individual who has committed a low-level offense could divert that person toward mental-health treatment instead of arresting him. DeMatteo et al., “Community-Based Alternatives,” 65. As with problem-solving courts, research suggests that officers specifically trained in handling those with mental illness and in making use of community behavioral health services enjoy better outcomes. DeMatteo et al., “Community-Based Alternatives,” 66; H. Steadman and M. Naples, “Assessing the Effectiveness of Jail Diversion Programs for Persons with Serious Mental Illness and Co-Occurring Substance Use Disorders,”
Behavioral Sciences and the Law
23 (2005): 163–70.

The underlying theory is that you cannot:
There has been a realization, for example, that drugs play a special role in shaping crime and any corrections approach that ignores that role is doomed to failure. Four out of five of those locked up at the state and federal level are there for a substance-abuse–related offense—using or selling, committing a crime to get money in order to buy, under the influence while acting—or have a clear history of alcohol or drug problems. DeMatteo et al., “Treatment Models,” 551. Drugs are implicated in roughly half of all violent crimes and domestic abuse crimes. DeMatteo et al., “Treatment Models,” 551. And those who have previously abused drugs are not only more likely to use drugs in the future but also more likely to be rearrested: at the state level, 95 percent of inmates with drug histories return to using within three years and 68 percent are rearrested. DeMatteo et al., “Treatment Models,” 552; Steven S. Martin et. al., “Three-Year Outcomes of Therapeutic Community Treatment for Drug Involved Offenders in Delaware,”
Prison Journal
79 (1999): 194–320; Patrick A. Langan and David J. Levin, U.S. Department of Justice,
Recidivism of Prisoners Released in
1994 (Washington, DC: Bureau of Justice Statistics, 2002),
http://www.bjs.gov/​content/pub/​pdf/rpr94.pdf
; DeMatteo et al., “Community-Based Alternatives,” 65.

Problem-solving courts don't ignore these realities; they accept and address them. Indeed, one of the underlying motivations for problem-solving courts is the notion that social science should be employed to understand how legal rules and processes actually impact the well-being of those who come under its command. DeMatteo et al., “Treatment Models,” 555; Christopher Slobogin, “Therapeutic Jurisprudence: Five Dilemmas to Ponder,”
Psychology, Public Policy, and Law
1 (1995): 193–219.

So, rather than acting as adversaries:
DeMatteo et al., “Community-Based Alternatives,” 67; DeMatteo et al., “Treatment Models,” 556. The role of the prosecutor may present the greatest shift: unlike in a traditional criminal law case, the prosecutor in a problem-solving court is not focused on high conviction rates and harsh sentences. DeMatteo et al., “Treatment Models,” 556; Elaine M. Wolf, “Systemic Constraints on the Implementation of a Northeastern Drug Court,” in
Drug Courts in Theory and in Practice
, ed. James L. Nolan, Jr. (New York: Aldine de Gruyter, 2002), 27–50.

Drugs courts, for example:
DeMatteo et al., “Treatment Models,” 555.

Problem-solving courts instead use:
DeMatteo et al., “Treatment Models,” 555; Michael C. Dorf and Charles Frederick Sabel, “Drug Treatment Courts and Emergent Experimentalist Government,”
Vanderbilt Law Review
53 (2000): 831–83.

Research shows that the more humane:
DeMatteo et al., “Community-Based Alternatives,” 69. That said, some critics have raised concerns that specialty courts lack the procedural rigors to deliver fair and equal justice, while others have suggested that judges and attorneys lack training and expertise in dealing with cases of mental illness, drug abuse, and other specialized problems. Leon Neyfakh, “The Custom Justice of ‘Problem-Solving Courts,' ”
Boston Globe
, March 23, 2014,
http://www.​bostonglobe​.com/​ideas/2014/03/22/the-​custom​-​justice-​problem-solving-​courts​/PQJ​LC75​8Sgw​7qQhi​efT​6MM/​story.​html
.

Those who come before:
DeMatteo et al., “Community-Based Alternatives,” 68. They also appear more likely to believe that they were treated with dignity. Neyfakh, “The Custom Justice of ‘Problem-Solving Courts.' ”

Drug courts get similarly high marks:
DeMatteo et al., “Treatment Models,” 558; C. West Huddleston, Douglas B. Marlowe, and Rachel Casebolt,
Painting the Current Picture: A
National Report Card on Drug Courts and Other Problem Solving Court Programs in the United States
(Alexandira, VA: National Drug Court Initiative, 2008); Douglas B. Marlowe, David S. DeMatteo, and David S. Festinger, “A Sober Assessment of Drug Courts,”
Federal Sentencing Reporter
16 (2003): 113–28; DeMatteo et al., “Community-Based Alternatives,” 65. For instance, research suggests that every $1.00 invested in drug courts brings $3.36 in benefit to the criminal justice system for higher-risk offenders (and $2.21 in benefits overall). DeMatteo et al., “Community-Based Alternatives,” 65.

With more than three thousand:
Neyfakh, “The Custom Justice of ‘Problem-Solving Courts' ”; DeMatteo et al., “Treatment Models,” 553.

Yet they still handle only:
Although drug courts were first to arrive on the scene, today, they manage only about 5 percent of those who would be eligible to participate in them. DeMatteo “Treatment Models,” 560.

And the major question is:
One problem with problem-solving courts is that while they do a far better job at understanding and then treating the specific issues underlying an offender's criminal behavior than the standard incarceration approach, they still rely on overly general classifications and channeling. For instance, a significant number of those who end up before mental-health courts also have serious substance abuse problems that may not be actively treated. DeMatteo et al., “Community-Based Alternatives,” 68. And those who find themselves before drug courts can have very different dependencies, yet they tend to all face the same general protocols. Most importantly, the categories of covered individuals naturally leaves many offenders stuck with the ineffective and cruel status quo.

Victims shouldn't be pushed to the side:
Paul G. Cassell, “Standing for Victims: They Need Their Own Constitutional Amendment,”
Slate
, June 14, 2012,
http://hive​.slate.com/​hive/how​-can-we-fix-constitution​/article/standing-for-victims
.

It makes little sense that:
Cassell, “Standing for Victims.”

They should be permitted an active role:
Cassell, “Standing for Victims.”

Recent research suggests that such actions:
Julie Juola Exline et al., “Forgiveness and Justice: A Research Agenda for Social and Personality Psychology,”
Personality and Social Psychology Review
7, no. 4 (2003): 337–48; Michael Wenzel and Tyler G. Okimoto, “How Acts of Forgiveness Restore a Sense of Justice: Addressing Status/Power and Value Concerns Raised by Transgressions,”
European Journal of Social Psychology
40, no. 3 (2010): 401–17; Charlotte vanOyen Witvliet et al., “Retributive Justice, Restorative Justice, and Forgiveness: An Experimental Psychophysiology Analysis,”
Journal of Experimental Social Psychology
44, no. 1 (2008): 10–25. Some recent research, for instance, suggests that it is a perpetrator's change in moral attitude communicated to the victim that brings a victim satisfaction and closure, not simple punishment. Friederike Funk, Victoria McGeer, and Mario Gollwitzer, “Get the Message: Punishment Is Satisfying If the Transgressor Responds to Its Communicative Intent,”
Personality and Social Psychology Bulletin
40, no. 8 (2014): 993–95. Unfortunately, such communication is very rare.

In fact, granting forgiveness may provide:
Charlotte vanOyen Witvliet, Thomas E. Ludwig, and Kelly L. Vander Laan, “Granting Forgiveness or Harboring Grudges: Implications for Emotion, Physiology, and Health,”
Psychological Science
12, no. 2 (2001): 117–23; Witvliet et al., “Retributive Justice, Restorative Justice, and Forgiveness,” 10–25; Giacomo Bono, Michael E. McCullough, and Lindsey M. Root, “Forgiveness, Feeling Connected to Others, and
Well-Being: Two Longitudinal Studies,”
Personality and Social Psychology Bulletin
34, no. 2 (2008): 182–95.

A single death-penalty case:
Amnesty International, “Death Penalty Cost,” accessed May 27, 2014,
http://www.amnestyusa.org/​our-work/issues/death​-penalty/us-death-penalty-facts​/death-penalty-cost
; National Coalition to Abolish the Death Penalty, “Cost,” accessed May 27, 2014,
http://www.ncadp.org/​pages/cost
.

The average cost of housing an inmate:
Sal Rodriguez,
Fact Sheet: The High Cost of Solitary Confinement
(Washington, DC: Solitary Watch, 2011),
http://solitarywatch.com/​wp-content​/uploads/2011​/06/fact-sheet-​the-high-cost-of-​solitary-confinement.pdf
.

In only 5 to 10 percent of all:
Innocence Project,
Reevaluating Lineups: Why Witnesses Make Mistakes and How to Reduce the Chance of a Misidentification
(New York: Benjamin N. Cardozo School of Law, Yeshiva University),
http://www.​innocenceproject.org/​docs/Eyewitness_​ID_Report.pdf
.

And yet we convince ourselves:
J. D. Gowdy, “The Bill of Rights and James Madison's Statesmanship,”
The Washington, Jefferson, and Madison Institute
(blog), June 9, 2013,
http://wjmi.blogspot.com/​2013/06/the-bill-​of-rights-and​-james-madisons.html
.

Why should law be different:
Imagine if we possessed the knowledge to light houses with electricity, make walls that didn't crack in earthquakes, and produce hot running water whenever we liked, but were told that such innovations were ill-advised because our dark and cold, wood slat houses had worked well enough (surprisingly, well, even) for the previous two hundred and fifty years. Would we accept that? Would we sit idly by, shivering in candlelight awaiting “the big one”? No—we would push ahead. It is true: not every building design innovation has been
successful (indeed, some have resulted in injuries or even deaths) and many core construction principles have lasted for decades if not centuries, but we have not resisted or feared progress.

In Montgomery, Alabama:
Melissa Block, “Theodore Parker and the ‘Moral Universe,' ” NPR, September 2, 2010,
http://www.npr.org/​templates/story​/story.php​?storyId=129609461
.