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Judge Gray: Reduce Incarceration of Non-Violent Offenders

The Functional Libertarian

May 16, 2013

One thing that starkly sets the United States apart from the other Western industrial countries of the world is our incarceration rate. Today our country has more than 2.3 million people in jail or prison, which means that, with about 5 percent of the world’s population, we have 25 percent of its prisoners.

In the years 2006 to 2008, which are the latest dates for which statistics are available, the United States led the world with 753 people incarcerated for every 100,000 of our population. Russia was next with 629, followed by Rwanda, Cuba and Belize with 593, 531 and 476, respectively. So look at the company we keep. The five countries with the lowest incarceration rates were Iceland, Japan, Denmark, Finland and Norway, with 44, 63, 66, 67 and 70, respectively.

These statistics mean that one out of every 99 adults in the United States is either in jail or prison. And with Black males it is even worse, with one in every nine being incarcerated! Faced with numbers like these, people of every political persuasion are beginning to understand that punishment for the sheer sake of punishment doesn’t work, and, besides, we can no longer afford it.

Generally there are four different kinds of people who are put into jail or prison. The first group is made up of violent offenders who have shown themselves to be a continuing threat to our safety or property. These people should be removed from society until that threat has been materially reduced.

The second group consists of people who have been charged with offenses but are a risk not to appear for their trial. Depriving people of their freedom before they have been convicted of an offense is a serious thing to do, but sometimes it is necessary.

The third group consists of non-violent offenders who personally need to be shown that everyone must follow the rules. In other words, they need to be deterred from further violations of law. And the fourth group consists of people, such as Martha Stewart, who are punished as public examples so that other people are deterred.

It is the vastly large number of offenders in the third group who are filling up our jails and prisons, and this is where some basic changes in approach must take place. For most of these people, short periods of time in jail, such as three to 30 days, will accomplish whatever positive purposes that can be accomplished.

But after this “taste of jail,” many of those offenders should be placed upon a program of strict probation. This would be a highly regimented program in which they could be required to look for and obtain employment, and then make regular restitution payments to the victims of their offenses.

Once restitution is being made, lots of good things start to happen for everyone involved. The offenders see how hard it can be to pay for the damages they caused, so they don’t want to put themselves into that position again. The victims get both some psychological satisfaction by receiving the restitution, and also the benefit of seeing their insurance rates come down. And the taxpayers don’t have to pay so much to hold the offenders accountable.

Of course, if the offenders don’t comply with the program, they can be put back into custody for longer periods of time. But even this is helpful, because those folks can serve as a bad example to others.

One of the conditions of probation can also be the requirement to wear an electronic monitoring device that will report the offender’s movements and locations. This has many positive results, because, for example, it can keep alcoholics away from bars, sex offenders away from places where their victims would be found, and gang members away from their former colleagues.

The cost of these devices is only a few dollars per day, while the average cost in California of incarcerating one inmate for a year is $50,000. And if the inmate is sick or elderly, the cost can be several times that amount.

More than one-fifth of the prisoners in California are being held for drug offenses. And since there now is very little effective drug treatment in prison, their recidivism rate after they are released is high. But if drug offenders could be placed in an outpatient treatment center with a monitoring device and on probation, they would have a much better chance to be crime-free, and at a much lower cost.

Furthermore, estimates are that about 30 percent of the people in the third group are mentally ill. This makes the local jails the largest “mental health facility” in most counties. Imagine the harm that is being done daily to these mentally fragile people due to that incarceration. And similar harm is also being inflicted upon the taxpayers, because incarceration is by far the most expensive option available.

Of course, many politicians posture by arguing that their legislation promoting things like mandatory minimum sentences, three strikes and you’re out laws, and enhancements for gang affiliation have kept our communities safer. But the surety and swiftness of punishment is much more effective to reduce crime instead of the slowness and random severity of it. And besides, now our governments simply don’t have the money to continue to pursue this course.

The State of Texas recently reduced its incarceration rate by eight percent by implementing programs of drug courts and treatment facilities. And this resulted in both a reduction of crime by six percent and a savings of $2 billion in prison construction costs! Pretty good results!

In summary, today there are tens of thousands of people in California alone who simply should not be there. Some of them, particularly many of the old and feeble, should simply be released. Many others should be placed on a program of strictly-enforced probation, often with a monitoring device and requirements for drug or mental health treatment and the reimbursement of their victims. We have the results and statistics to justify making those changes, what is lacking is the political will.

James P. Gray is a retired judge of the Orange County Superior Court, the author of “Why Our Drug Laws Have Failed” (Temple University Press, 2d edition, 2012), and was the 2012 Libertarian candidate for vice president, along with Governor Gary Johnson for president. He can be contacted at JimPGray@sbcglobal.net.

About Post Author

Jill Pyeatt

Jill Pyeatt is a small-business owner and jewelry designer from Southern California. She currently serves on the Judicial Committee of the Libertarian Party of CA. She can be found on Facebook and Twitter.

16 Comments

  1. Mark Jones Mark Jones June 12, 2013

    Good first step.

  2. Alan Pyeatt Alan Pyeatt May 17, 2013

    Another excellent article by Judge Gray

    The radicals (including me) tend to focus on our ultimate goals, such as getting all those convicted of “victimless crimes” out of the criminal justice system. But Judge Gray has a good handle on what our first step should be, starting from out current situation. He also knows how to write so that average Americans (who almost always make decisions based on pragmatism rather than political philosophy) will see the utility of taking that step.

  3. Jill Pyeatt Jill Pyeatt Post author | May 17, 2013

    BR @ 10: Yes, I’ve asked all the Democrats and Republicans to leave, but they won’t go.

  4. Brian Holtz Brian Holtz May 17, 2013

    its ok if it is being done as an act of retribution but not as an act to prevent future crimes?

    Right. Whether you committed act X, and the retribution standards for that act, are far more objective facts than are claims about your “future crimes”.

    it’s not that one is being punished for crimes not committed, but based on future risks

    Those are the same thing.

    I’m not saying there can’t be evidence about the risk that you’ll choose to commit a crime in the future. I’m just saying that unless the evidence includes your current plans for such crimes, then the government should not be allowed to use such evidence to take away your freedom.

    If libertarians won’t defend free will, then the libertarian project is doomed.

  5. Nicholas Sarwark Nicholas Sarwark May 17, 2013

    We can punish actions for the future risks they demonstrably pose to others, but we should never punish people for the future risks they allegedly pose to others. Nobody should be punished for crimes not yet committed — except insofar as planning a crime or creating a risk are themselves reasonably considered crimes.

    There’s data about the likelihood of recidivism that shows that age is a solid predictor of re-offending. So it’s not that one is being punished for crimes not committed, but based on future risks and severity of the current crime.

    Google “evidence-based sentencing” if you’re actually interested in the topic.

  6. Andy Andy May 17, 2013

    “Jill Pyeatt // May 16, 2013 at 11:39 pm

    What LP candidate forum, Matt?”

    Virginia. I was actually in the area, so I was there as well, but I arrived late so I missed the actual candidate forum, so I don’t know what it is that was cringe worthy.

  7. Be Rational Be Rational May 17, 2013

    There is an obvious problem with this sentence:

    “In summary, today there are tens of thousands of people in California alone who simply should not be there.”

    Although, perhaps just getting these undesireables out of CA will make it a better place.

  8. Steve M Steve M May 17, 2013

    so imprisonment is justifiable as retribution but not for “prophylaxis” so if “society” jails an individual for … the rest of their life as retribution for a crime committed its ok if it is being done as an act of retribution but not as an act to prevent future crimes?

    I am not sure I see the difference…. being in jail is being in jail…. aren’t we just quibbling over the reason justifying the incarceration?

  9. Brian Holtz Brian Holtz May 17, 2013

    Exile is an interesting case of prophylaxis, because landholders in a region could have covenants requiring exile for certain crimes, and that wouldn’t necessarily be aggression even if the motive is fear of future crimes. Shunning is never aggression (unless it violates a contract).

    I can’t agree a criminal should ever be imprisoned just because they cannot demonstrate that they will not commit any future crimes. That slope is not only slippery but very steep.

    The death penalty is a can of worms I’d rather not open at the moment.

  10. Steve M Steve M May 17, 2013

    Good article,

    Brian, If by prophylaxis you mean exile, imprisonment or execution then I am not so sure the general public doesn’t have the right to expect some level of public safety… issues of mutual protection… and not bouncing violently anti-social individual from town to town. I presume these are the instances that you call ” so wanton that they also deserve a retributive loss of autonomy”

    Can you speak a little more plainly…. hard to figure out if I agree with you or not otherwise, and i am pretty well educated.

    I think if an individual has demonstrated that they can initiate violence it becomes their responsibility to prove that they can live the remainder of their life not initiating violence.

    I am apposed to capital punishment…. mostly because of a likelihood of killing an innocent person… so the question becomes, to me… how a person who has initiated violence can demonstrate they wont again in the future?

    The burden of proof ought to be upon them.

  11. Brian Holtz Brian Holtz May 17, 2013

    Great topics: non-violent offenses, and restitution. Tragically bad headline. But I also have a problem with this:

    violent offenders who have shown themselves to be a continuing threat to our safety or property. These people should be removed from society until that threat has been materially reduced.

    We can punish actions for the future risks they demonstrably pose to others, but we should never punish people for the future risks they allegedly pose to others. Nobody should be punished for crimes not yet committed — except insofar as planning a crime or creating a risk are themselves reasonably considered crimes.

    Consider these five possible aims of sentencing:

    1. restitution
    2. retribution
    3. deterrence
    4. rehabilitation
    5. prophylaxis

    Restitution is the ideal purpose of sentencing. However, I can’t go all the way to (Ruwart style?) checkbook justice. Some crimes are so wanton that they also deserve a retributive loss of autonomy.

    In contrast with restitution and retribution, libertarians should fundamentally oppose the idea that deterrence, rehabilitation, or prophylaxis can be sufficient stand-alone justifications for sentencing. Each of these three rationales are subject to obvious slippery-slope dangers. While all of them may be desired (and purposely arranged) to be side-effects of sentencing, it’s just too dangerous to give the justice system the power to pursue these three objectives as stand-alone justifications for a sentence.

  12. Jill Pyeatt Jill Pyeatt Post author | May 16, 2013

    What LP candidate forum, Matt?

  13. Matt Cholko Matt Cholko May 16, 2013

    I’ll agree that on a Judge Gray “Functional Libertarian” scale this is pretty good.

    I also agree that the headline is very much cringe worthy. I cringed when I read it.

    I also cringed a whole bunch this evening at a LP candidate forum. Sad….

  14. Tom Blanton Tom Blanton May 16, 2013

    The headline, “Reduce Incarceration of Non-Violent Offenders”, alone made me cringe and then go into spasms of ethical malaise.

    What about non-violent offenders guilty of victimless crimes? In the event of non-violent theft, why not make restitution the first choice using the threat of incarceration to motivate prompt restitution?

    But, while we are at it, why not reduce the voltage of the tasers cops use? How about reducing the capsaicin content is the pepper spray used on kids in the street? Maybe instead of confiscating all of someone’s cash, we could re-write forfeiture guidelines so that cops can only take half of someone’s “suspicious” cash?

    But, realizing how vicious that average American rube is regarding law and order, and considering how many people applaud the police state, as they did in Boston recently, and understanding that political pundits that want to be published can’t offend these authoritarian freaks, it is understandable why da Judge can’t really speak freely about things like non-violent victimless crimes and risk alienating the crypto-fascist authoritarians in his audience.

  15. Jill Pyeatt Jill Pyeatt Post author | May 16, 2013

    I agree, Nicholas. Nothing cringeworthy to me.

  16. Nicholas Sarwark Nicholas Sarwark May 16, 2013

    This is probably the best of Judge Gray’s columns so far.

Comments are closed.