Prisons, Off The Hook

In posts at Hercules and the Umpire, Nebraska Senior Judge Richard Kopf has posed questions relating to the use of empirical proxies to ascertain the likelihood of recidivism.  One questions why poverty, of highly correlated with recidivism, shouldn’t be considered.

While some have seen his raising this question as a reflection of his disdain for the poor, and by extension, minorities because of their disproportionate representation among the poor, I see it as an effort on his part to find a better, more reliable, methodology to sentence than what is used now.  Judge Kopf is big on empiricism.

The current method, which might be best described as “gut sentencing,” may have its virtues in that it allows advocates to use whatever factors present themselves, and to make as persuasive an argument as possible that the sentencing factors of §3553(a) are best served by a particular sentence.  That said, it remains, without a doubt, a hit or miss proposition.

By raising the question of poverty as a proxy, which fails in my opinion for a variety of reasons ranging from “correlation not proving causation,” to its inadequacy as a proxy (say, a 74% reoffend correlation rate, statistically significant for empirical purposes, means 26% of defendants will be sentenced to a longer sentence than parsimony would allow, which is just plain wrong), to its placing the full weight of recidivism on the defendant.  “What,” you ask?

Among the factors imposed by law, and embraced by sentencing theory, to justify the legitimacy of imposing a sentence of imprisonment are protection of the community, specific deterrence and rehabilitation.  When Judge Kopf uses pre-incarceration factors as empirical proxies to ascertain a defendant’s likelihood of committing crimes upon release, it leaves a huge gaping hole in the analysis.

Is it not a purpose of prison to provide defendants with the means and incentive to return to society as a law-abiding person?

Putting aside the problem with prisons being incapable of assuring they can return a person sentenced to a term of years to society alive, how is it that prison has completely escaped scrutiny in this mix of poverty and recidivism?

If part of the justification for sending a human being to be caged for a period of years is to produce a person on the backend who will not emerge to commit crimes, harm people, have no skills or knowledge that will allow the person to assume a place in society where he can live a law-abiding life, then prisons have failed.  And if prisons have failed, then why is the focus not on the failure of the institution of prison to fulfill its legal mandate, rather than on the defendant’s unrepaired past?

There is a concept in torts called an independent intervening event that relieves a person from liability.  It means that a person isn’t responsible for an unforeseeable happening that comes between conduct and outcome. Prison is the analogue in criminal sentencing.  Upon sentencing, a defendant is committed to the custody of prison for the purpose of achieving the statutory goals that justify incarceration in the first place.  Prison is supposed to do something to accomplish these goals.  It’s not just a human warehouse.

Is any judge saying:

Dear Warden,

I’m sending you this guy for 121 months.  He is a flawed human being, who put his personal gain ahead of his obligation to exist in society without doing harm to others.  He comes from a world of poverty, from a broken family where he lacked loving and supportive parents who would teach him right from wrong. His education was terrible, and his role models were people who made big money off committing crimes.  He has no skills. He has no empathy. He has no expectation of living a happy, successful, law-abiding life.

Do something about it, warden. Make him a better human being. Make him a person who will leave your prison capable of living a happy, successful, law-abiding life. That’s one of the major reasons I’m sending him to you. Don’t fail me, warden. Don’t fail society.

If not, then are we conceding that the only real purpose to imprisonment is warehousing people like animals, keeping them in cages so they can’t disrupt our cocktail parties?

As much as I can appreciate Judge Kopf’s concern for empiricism, to find a more rational, more fact-based method for honing sentence to serve the purposes expressed by §3553(a), even if it involves politically incorrect measures that have a statistically significant correlation to the factors imposed by Congress, it’s impossible to ignore that fact that we justify incarceration, at least in substantial part, by imposing a duty on prisons to turn out human beings who are better than when they came in.

Where is the empirical analysis of the failure of prisons?  What is the justification for imprisonment when the prisons fail to fulfill their purpose?  Adding additional time to a sentence based upon a history of poverty because of the statistical correlation with recidivism, assuming arguendo that it’s valid, wholly ignores the independent intervening event of incarceration.

Before we dump on people for being poor, there is a very real reason to challenge the efficacy of imprisonment if it fails so miserably to fulfill the purposes we use to justify sending people there.  And if prisons fail as miserably as the statistical correlation suggests, then the problem isn’t poverty, but prison.  It may be too big an issue to fix poverty, but prison is a man-made institution. If it doesn’t work, then the solution is to fix it rather than blame defendants.

15 thoughts on “Prisons, Off The Hook

    1. SHG Post author

      For reasons I can’t explain, that was not his focus. Not that he was seriously suggesting his slightly snarky modest proposal, either, but this was most assuredly about empirical sentencing.

      1. Edward Adamsky

        In reading the comments to the Judge’s post, I realize you are right. I had thought he was making an extreme argument to prove its absurdity. He does appear to be considering whether the wealth or poverty of a defendant should be a factor in sentencing. That is absurd, and it probably happens daily.

  1. Robert Singarella

    I have to ask, are you serious that there’s not been any major empirical analysis about the failure of prisons? Is there no data on individual prisons’ recidivism rates over time? I mean, I’ll admit that until I started reading your blog just a few weeks ago, I had never given much thought to these sorts of issues. It’s given me a lot to think about.

  2. John Barleycorn

    This entire ruse that isn’t exactly a ruse is actually a pretty decent attempt by the esteemed one and the robed one from Nebraska to start up a band that will be performing at Folsom Prison next fall.

    I am personally hoping the robed one from Nebraska is in fact a closeted punk rocker who knows how to tear it up when he lets the his hair follicles channel the rage and that the esteemed one will be growing out his to hair to channel a genetically modified Barbra Streisand crossed with a Neil Diamond cyborg which could result in a more cleverly capable Neil Young-ish sort of sound with the Judge taking the thrashing of the beat to new heights.

    This brave new collaboration will not be televised or make the editorial pages of the eastern seaboard press.

    But then again you never know…

    I for one am hoping their 2016 Chambered Anarchy; Throwing Tomatoes Tour sells 100 million tickets.

    1. david

      I think you are being a bit ageist here; personally, i find the thought of shoog and k-law teaming up to do a Clarence darrow-themed “reimagining” of “anaconda” almost too much to contemplate sitting down. Imagine how much baby oil would be required . . .

  3. Pingback: The effects of prison sentences on recividism « Hercules and the umpire.

  4. Charles Platt

    Prisons are ineffective at rehabilitation because there is no incentive for them to rehabilitate anyone. For example, the pay of social workers or probation officers or, yes, prison wardens could be enhanced with a small bonus for each client who doesn’t commit more crimes after serving time. A market-based solution would be even better. A convicted felon should be free to select the prison of his choice, with prisons receiving compensation in proportion with the number of inmates, just as motels make more money when they have more guests. Without this user feedback, you have privatized prisons controlled by regulatory authorities–the worst possible combination. Prisons should be as competitive as motel chains.

    1. SHG Post author

      If convicted felons were allowed to pick their prison, they would go for food and amenities. Rehab still wouldn’t matter.

      1. Charles Platt

        No doubt! But there is also the factor that most prisoners do not want to return to jail (at least, the ones I have known). I think if a facility really did have a good rehab record, felons would want to go there.

        Just to make this even more hypothetical, felons should also be paid. The county or state or feds are going to pay for incarceration anyway, so why not give the money to the convict, on an annual basis, like a school voucher, and let him choose where to spend it. He could splurge on a high-end facility, or go to a fleabag version which would only take some of his money, leaving him with savings. The vouchers could be convertible into cash at the end of his sentence. Of course the convict is just as likely to use the saved vouchers as a new form of prison money for gambling or drugs, but that would be educational.

        More seriously, I think that if you take away someone’s rights and turn him into a slave, he won’t behave well, and rehab remains a fantasy. If you give him some rights as a consumer of services, the services can only improve, and so will he.

Comments are closed.