May
15

Reframing Recidivism

About 44 percent of all those we release from prison are expected to return within three years. To many, this high rate of recidivism represents a failure of the criminal justice system. If our prisons aren’t rehabilitating people and deterring them from the commission of future crimes, what’s going wrong? How can prisons do a better job?

Putting the question this way avoids confrontation of the real point: high recidivism rates have less to do with criminal conduct than they do with the use of prisons as social control mechanisms. We incarcerate folks for many reasons, criminal conduct is only one of them. Prisons remain a means of exercising social control over folks who are different, whom we cannot, or will not, integrate into the larger society. Many of the folks we imprison are destined to return because they cannot choose but to do other than what the law prohibits.

The classic crimes, murder, robbery, rape, these reflect broad and bold challenges to social order. By almost any standard, acts of such violence place the offender beyond the pale. In such horrific cases, prison reflects a decision to isolate a dangerous individual. But the prisons are filled with many individuals who do not represent a clear and present danger to others. We incarcerate folks for possessing narcotic drugs. We justify that decision by talking about the harm narcotics use does to a community. But what about the harm done by nicotine and alcohol? Why no prison for use of these products? The answer is obvious: these means of self-medicating are used by too broad a spectrum of the population.

Social choices frame the decision about whom to incarcerate: "African-Americans are far more likely to get prison sentences for drug offenses than white offenders," Michelle Alexander notes in this morning’s New York Times. Race matters. Prisons are a means of controlling deviance, in this case from the predominant white norms. A black man is far more likely to be imprisoned, not because black men are criminals, but because they are different. Deviance is less a matter of moral choice that political and sociological status.

I suspect the same is true of mental health. A significant portion of the prison population, estimated to be as high as 25 percent in Connecticut, suffers from mental illness. We are incarcerating these folks not for making choices we regard as wrong. These folks are incarcerated because we prohibit the conduct in which they engage. Once incarcerated, there is little hope of rehabilitating these folks. Once released, it is small wonder a man or woman suffering from mental illness is incarcerated again. The same mental illness that drove them into the law’s arms the first time will not doubt drive them once again.

A recent study by The Pew Center on the States recited the dismal figures. Forty-three percent of those released from prison in 2004 returned to prison within three years. The Center notes: "If more than four out of 10 adult American offenders still return to prison within three years of their release, the system designed to deter them from continued criminal behavior clearly is falling short." That’s too narrow a perspective. Putting a mentally ill person behind bars for a behavioral offense and then releasing them back to a community ill-equipped to meet their special needs in the first instance accomplishes nothing. You don’t deter a person unhinged by mental illness by appealing to a better moral or civic vision of themselves.

The sad reality is that many folks who fall into the clutches of the criminal justice system do so not as a result of failing to adhere to communally recognized and accepted norms. There is no community of reasonable minds binding a world of strangers to a joint vision of the good. We stumble along, most of us, most of the time, much like cattle, prodded this way and that by stimuli we scarcely recognize. The mentally ill, the different, simply respond to things the rest of us are not prepared to accept. Incarcerating folks because they are different does not, and never will, produce uniformity.

It appears as the states are now searching for ways to release folks from prison given the economic slow down. It costs almost $80 per day to imprison a person, that’s almost $30,000 a year. One out of eight state employees works for a department of corrections. We’re spending a lot of time and money incarcerating folks for being different. Few of them really belong in prison. The money we spend locking away the deviant and expecting them to change while living in a box would be better spend producing realistic opportunities for all to find and retain a place in society.

Our prison population grew by more than 700 percent from the 1973 to 2009. This represents the era of the war on crime. We lost the war. We can’t afford to wage it any longer. Our recidivism rates do not reflect a failure of the penal system; they reflect a broader failure of how we conceptualize criminal conduct. It ought not to be a crime to be black, mentally ill, or different. High recidivism rates do not reflect a failure of penal system; they reflect a broader failure of what we choose to criminalize.

Comments (1)
Posted on May 19, 2011 at 8:26 am by real education
recidivism
maybe we should incarcerate more of our corrupt politicians and judicial folks. Upon their return to society, with personal knowledge of inner workings, they'll know how to "fix it".
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
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