Progressive Punishments, A Conundrum

In his inaugural speech, newly-elected Philly District Attorney Larry Krasner said that he would do what he promised:

He reiterated those goals during his inaugural address, saying he wanted to begin “trading jails — and death row — for schools,” “trading jail cells occupied by people suffering from addiction for treatment and harm reduction,” and “trading division between police and the communities they serve for unity and reconciliation.”

Whether it works out the way he says will be seen, as it’s not so easy to trade jail cells for schools, but there remains an open question. What to do about the people who commit crimes. The big crimes are easier, murder and rape, but what about the small ones? Putting people in jail for petty offenses is ruinous. It destroys lives and achieves no legitimate sentencing objective. And it’s very expensive.

So what about imposing fines? For the poor, and most are poor and minority, there is no ability to pay, and when they fail to pay, the costs multiply (since there must be some penalty for failure to pay, and the penalty ends up being pay more when you couldn’t afford pay in the first place) until it goes from exceptionally hard to totally impossible.

Fines for drug offenses, in particular, can have long-term consequences for people who are unable to pay. In many jurisdictions, if a person cannot pay a court-imposed fine, probation is lengthened, warrants are issued and he or she can even be jailed for nonpayment. The burden is piled on, as interest, surcharges and collection fees are added to unpaid court costs.

So if not jail or fines, then what?

They can reform the justice system without adding the financial burden of fees and classes that defendants must pay for. They should instead search for ways to reduce criminal justice budgets by prioritizing preventive measures proved to decrease recidivism and improve public safety such as free drug and alcohol treatment programs, low-cost housing, restorative justice and job training.

The mystery here is who the “they” are. Neither courts nor prosecutors have anything to do with “prioritizing preventive measures.” They don’t build schools. They don’t fund drug treatment centers. They don’t build housing or train for jobs. They only deal with people after they’ve been arrested. So “they” must refer to other arms of government, since it can’t possibly refer to courts or prosecutors.

To start, lower courts should rely on day fines,where monetary sanctions are determined based on a person’s daily wage and the seriousness of the offense. The sanction is proportionate to a person’s ability to pay and the degree of harm inflicted.

To argue that fines are too high is fine, but the argument then depends on what fines actually are. To argue that lower fines, geared to a person’s ability to pay, is a tricky proposition. For people living hand to mouth, pretty much any fine is more than they can afford. Then there is the question of whether a fine of, say, $20 serves any purpose at all, beyond annoyance. Is there any deterrence? Does any fine serve a deterrence? Does any punishment really serve as a deterrence?

Punishments are problematic by definition. They aren’t supposed to be fun and easy, but a penalty. They should always be proportional to the crime and the individual being punished, but then the same people who call for easing up the burden on the poor are the first to demand life plus cancer for others.

Jurisdictions could reduce justice-related budgets by restructuring drug-sentencing laws to match public opinion and revise the use of mandatory minimum, long-term and life sentences.

Public opinion is that people they hate should get burned at the stake and people who make them sad should get a free meal and a puppy. It’s not just that the public is fickle, but ignorant. The public can’t be bothered to think hard enough to understand doctrines and principles, and instead hears each story and arrives at a sui generis solution. Whether it’s life or a walk has more to do with the adjectives chosen to tell the story than what a person has done.

Even though there is little doubt that the dedication of resources to preventing crime would go much further than building prison cells, people will still commit offenses, and most of them will be of the petty sort. Short jail sentences are no good. Fines are terrible. So what then?

We are enjoying a period of exceptionally low serious crime, despite what Attorney General Jeff Sessions says. Why this is so is entirely unclear, but that doesn’t change the statistics. And yet, low crime isn’t no crime, and fails to answer the question of what should be done when crime is committed.

One answer is to reduce the number of offenses, but that means people will behave in ways that annoy, and possibly risk harm, to others. Can people tolerate this? Can the same person who calls for decriminalization of drugs suffer their child being in a car crash with an uninsured reckless junkie? Not everybody wants drug treatment, you know. Despite our fantasy vision of a society filled with only good and loving people, there are some out there who aren’t going to behave with the degree of concern for your welfare that you wish they would.

This isn’t to dispute the problems with incarceration or fines. This is to note that all punishments are problematic, and maybe no punishment actually serves a purpose beyond retribution. But then, what do we do when people commit crimes?

Even Larry Krasner’s best wishes as Philly DA will eventually have to come to grips with the fact that people do bad things, and good people are hurt by them. So if the answer isn’t jail or fines, what is the answer?

28 comments on “Progressive Punishments, A Conundrum

  1. B. McLeod

    So we just call the jails “reeducation camps,” and they become schools. Presto (it is not a new idea).

  2. LocoYokel

    Oh come on, really? You want them to actually think about their rainbows and unicorn world? And to find real, workable solutions to serious issues?

    What kind of monster are you? Thinking is hard, and solutions require real effort.

    Get with it man, it’s all about the promises and fluff, then you find (or create) some other crisis to distract the masses so you can just continue on as usual. Give it (at most) two months and you won’t be hearing about this again, if anyone brings it up it will be deflected with a comment about studying the issue and collecting data or some crap like that.

  3. womanwarrior

    Gee, don’t have your creative cap on today? How about community service? I have had clients get a lot out of that in terms of doing something positive and feeling useful. And it does penalize their free time. How about restorative justice mediations where people sit and face their victims and discuss ways that the crime hurt and ways to make up for it?
    Of course, DA Krasner is not going to stop prosecuting serious and violent crimes, but he will put more resources into that, and less into giving young people records for marijuana. And when you spend less on jail cells, you have more money for schools. Ya gotta start somewhere.

    1. SHG Post author

      How about them? What does 100 hours of community service do to a defendant? Cost him a job, his car, the rent for the apartment where his children live? If he can find some place that will let him do community service, which is becoming increasingly difficult. A fine once paid is paid. A job once lost because a guy had to take a couple weeks off to do community services is hard to replace.

      As for restorative justice, the only people who seems to find that a viable substitute are criminal defense lawyers, bronies and the rare victim who doesn’t think a sentence of life plus cancer is absolutely necessary.

      In the real world, will this work? Does it trade one harm for another? Is it another fantasy solution?

      1. LocoYokel

        Can the community service not be scheduled around their jobs and obligations? Nobody works 24/7 and there are off days that are not completely filled with other obligations. Maybe we rethink and redefine community service so that it’s something that can be done in their daily routine and to give it more meaning than just taking a chunk of someone’s life to pick up trash on the roadside and find ways that turns it into something that will give a person a sense of accomplishment and maybe some skill training so they can improve their life if they choose? I don’t know what that would be or how it would work but perhaps someone smarter than me could give it a couple hours thought.

        I am not sure that restorative justice as presented here would work. While I am in favour of alternate means rather than just locking everyone up and throwing away the key and like to think I will still feel that way if a crime was committed against me I have never been the victim of a significant crime and cannot honestly say how I would react. However, I cannot imagine very many people wanting to sit down and have a heart to heart to someone who broke into their house or vehicle. Restorative in the since that any damage is made whole and stolen items were returned or replaced where the loss doesn’t involve sentimental value, yes. However that doesn’t address the root issue of the crime, it just makes the perp (sorry but I couldn’t think of a non-pejorative term to use) see that the system is crapping on them again and taking from them to give to someone else who they probably see as better off to begin with. Something is needed to make them see the impact on the world and internalize it but I, personally, would probably not be able sit there and have deep a conversation about feelings over it and I’m not sure that would work anyway.

        Maybe I’m not that good a person and I’m a rarity in that I doubt I could sit and have a meaningful conversation with someone who has harmed me but I don’t think I see that in very many other people in the world either. There are those who can do that and I applaud them but they seem to be in the minority.

        People have to want to change, if they don’t see any reason to or they’re in such a hole that they don’t see any other way out we cannot change them by any external means. They will just cover up and say what they think you want to hear until the coast is clear and then it will be back to the old ways. There is a group (hopefully relatively small in the scheme of things) who were born under a bad sign and are just “evil” and there is not much that we can really do for them. Society needs to present better options for the rest to give those who fall astray better choices.

        A lot of rambling here and maybe I didn’t convey what I wanted to but I hope some of what I wanted to express made it through.

        1. SHG Post author

          That was very long. I read it. You owe me. Community service isn’t magic. You do it where you find it, if you can find it. You do it when they tell you to do it. And nobody will take you on if you’re more of a pain in the ass than a help, or at least a neutral. Somebody has to manage you. Somebody has to track your hours. Somebody has to make sure you’re not selling meth to the homeless in the shelter or poisoning the macaroni. Much of it involves activities like cleaning litter on the highway. They don’t do that at midnight.

          Or to get to the point, no, they can’t arrange community service around thousands of people’s schedule and convenience. Have you ever met our government?

          1. LocoYokel

            Give me an address and I’ll see about having Black’s ship you some good Texas BBQ, And, no, there’s nothing you’re going to get in New York that’s gonna compare, although I’ll grant you that Katz’s does alright with the pastrami.

    2. Sgt. Schultz

      Every time somebody tries to sell “restorative justice,” I laugh my ass off. People are screaming for harsher, more Draconian sentences, and someobdy on a yoga mat feels singing Kumbaya is gonna cut it. Must be a wonderful planet you live on.

      And not to gett too pointed, but the same people pretending that hugs are good enough are the same ones screaming for death for stare rape.

      1. SHG Post author

        Restorative justice would be great in limited circumstances, if we hadn’t spent 40 years espousing tough on crime. For now, it’s a fairy tale, not because it isn’t a good idea, but because victims demand “justice.” Remember “justice”?

      2. Patrick Maupin

        It’s hard to hug and stare at the same time. Unless there’s a mirror, in which case you’re OK, unless, of course, there’s two mirrors and she can see where you’re staring.

          1. LocoYokel

            I would say that evidence points to his not having them. After all Hogan pulled off pretty much any caper he wanted right under the Sgts eyes.

  4. MelK

    Now we know why you are always telling people to “sit down. I have something to tell you and it will make you sad.” You have all those puppies you are trying to give away…

  5. womanwarrior

    C’mon, Negative Nellies. We have some great community service programs where people help with cleanups in parks and learn some landscaping. They are usually on weekends although people can choose other dates. I have had people’s lives change from being assigned to shovel walks for old people in the winter (under supervision).
    As for restorative justice, of course, it is only if the victim wants it, and surprise, many do. There are trained facilitators to make it work. Otherwise, there are community panels with trained volunteers to engage the person who needs correction in structured dialogue. Just because it doesn’t work for everyone, is there a reason not to try thinking outside the box? It costs us taxpayers lots more to put people in correctional boxes. Some of you make me think there is an interest in buying stock in private prison companies. And really, don’t give me the kumbaya crap. I have way tougher skin than that. You really think it helps heroin addicts to lock them up with no treatment in a prison cell? Let’s put that money into long term inpatient treatment, instead of the useless 14 days that insurance will pay for. Sure it doesn’t work 100 %, but for the people it works for, it’s cheaper than prison and better than death from fentanyl. Their mothers will tell you that.

    1. SHG Post author

      I sincerely hope it works for Krasner, and then others see it, and replicate it, and it spreads. And next thing you know, we close down prisons, cut prison nation by 90% and use all the money saved for schools and (working) drug treatment.

      I would still like to see far fewer crimes. But there is still one curious thing. In the Times op-ed arguing against fines, why wasn’t community service proposed as an alternative? I know why my clients hate it, but even assuming my experience isn’t the norm, why?

      My issue isn’t that it wouldn’t be good, but that untenable reforms fail and cause a backlash, and the backlash is worse than before. We start with bold aspirations and end with brand new prisons to hold all the newly convicted. We’ve both been around a while. We’ve seen it happen before.

    2. Sgt. Schultz

      Community service is already available, and often offered as an option where I practice. Some take it, and learn how hard it is to find someone willing to take them on. Some don’t. After I explain what 100 hours means, most prefer the fine. Glad it works for you, but as far as my experience goes, my clients don’t want it.

  6. Jardinero1

    Incarceration as a form of punishment is a relatively recent, 19th century, phenomenon. It was first implemented in, of all places, Pennsylvania. Until that point, punishment usually consisted of either execution, or public humiliation via the stock or corporal punishment. Lawmakers, Prosecutors and Judges should reconsider those penalties. They would be appropriate for crimes that enjoy broad public opprobrium like vandalism and theft, maybe battery. They serve both retributive and deterrent purposes. They allow the perpetrator to stay in society and the workforce. As punishment, they are also exceptionally cheap and quick to administer.

    1. Jardinero1

      A clarification. By penalties to be reconsidered, I was referring to the stock and corporal punishment.

    2. John Neff

      Monarchs did not want to waste money incarcerating commoners. When a noble was incarcerated it was primarily to incapacitate them. After the revolutionary war the hard labor was the preferred punishment in county work houses and camps with many deaths in custody in the Southern states.

      The reformers claimed that incarceration was an alternative to capital punishment, but the legal historians said the state prisons were filled as soon as that opened with county work house and work camp prisoners. Obviously the counties wanted the state to pay the cost of incarceration as is the case today.

    3. Pithy the Fool

      Which 19th Century was that then? I’m currently reading John Howard’s campaigning 1777 book “The State of the Prisons in England and Wales”. 240 years, and still the English Gaols have an offenfive fmell.

  7. billmcwilliams

    Eliminating the threat of incarceration would have an economic impact on many fine lawyers.

    1. SHG Post author

      So here’s how basic economics works. If they can’t afford a fine, they can’t afford a lawyer. The PDs will do fine without them.

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