by David M. Reutter
The political atmosphere surrounding criminal justice reform features strong rhetoric on both sides. Those who pontificate the “get-tough-on-crime” culture argue for increasing criminal sanctions and imposing punishment upon prisoners. On the other side are criminal justice reform advocates who push for a second chance by changing sentencing and prison policies.
PLN regularly reports on the increasing levels of violence, overcrowding and staff shortages that create dangerous, and even deadly, conditions in our nation’s jails and prisons. This article explores the history and current state of America’s criminal justice policies, examining changes since 1970 and providing the author’s personal insights gained from 35 years imprisoned in the Florida Department of Corrections (DOC), which gives him a front row seat at ground zero.
Getting Tough on Crime
The U.S. is revered worldwide for its constitutional commitment to the concept that ‘all men are created equal.’ The sheen cast by that enshrined right, however, is tarnished by America’s infamous distinction of having the world’s largest prison population.
Our Founding Fathers, who were outlaws in the eyes of the British government they rebelled against, sought to cure some of the errors they saw from London. So, the signers of the Constitution prohibited the use of “cruel and unusual punishment.” The Supreme Court of the U.S. (SCOTUS) has held that when courts are deciding whether to enforce that Eighth Amendment prohibition, they should keep an eye on ‘the standards of decency in an ever-evolving society.’
Data released by World Prison Brief in October 2021 counted 2,068,800 U.S. citizens incarcerated, either awaiting trial on criminal charges or imprisoned to serve sentences for criminal convictions. That was 25% of the world’s total prison population, all held behind bars in a nation that comprised only 4.17% of the world’s total population in June 2023, giving America the highest per capita rate of incarceration with 664 prisoners per 100,000 citizens, according to a 2021 study by Prison Policy Initiative (PPI). Prisons in America have become so prevalent that they earned an industry moniker: the prison industrial complex.
The sheer size of the prison business has drawn in private companies to provide services, also propping up the economy of many a small and rural community. PLN readers are familiar with this issue, the bottom line being that plenty of money is made by these companies because they gain a huge profit while failing to provide adequate staff and scrimping on services. Lawsuits and small settlement payouts are part of their business model. Private prison medical company Corizon Health exhibited some real business savvy by creating a new company, YesCare, for its prison and jail contracts. It then spun off its liabilities into another company, Tehum Care Services, Inc., which promptly filed for bankruptcy protection against its debtors – including those who had won jury verdicts based upon a finding of the denial of medical care that caused pain, suffering, injury or death. [See: PLN, June 2023, p. 21]
The profiteering by such companies creates animosity and discord among prisoners because they are denied needed or preventative medical care, suffer annual canteen price increases of 10% and receive food portions that would not be deemed adequate for a child. For instance, prisoners in Florida receive four chicken nuggets on a main meal tray from DOC’s food service vendor, Aramark – while a child’s “happy meal” at McDonalds has six nuggets, 50% more. Half-sized portions are the norm to cut costs, and mechanically separated chicken is a main staple. The use of Aramark to provide food services was abandoned once already in Florida because of poor service and low “participation” by prisoners, who refused the meals.
Meal participation is a bit higher now because prisoners are prohibited under an April 4, 2022, policy from receiving money from anyone not on their approved visitation list – which is limited to a maximum of 15 people. According to DOC, “the purpose of the rule amendment is to provide greater accountability in order to prevent fraudulent, unauthorized, or other illegal financial transactions involving inmate trust accounts.” But the rule change left many prisoners scrambling to get those who sent them money on their approved list. Some prisoners’ only source of income was a donation from someone who is not or cannot get on the approved list. Or it might have been an organization who sent them a small stipend. Without these sources of income, they are left relying on the meager provisions from the state. The more resourceful prisoners then find ways to earn money, resulting in rule violations or even criminality.
Private companies in the prison industrial complex are regular political campaign contributors. Politicians, in turn, propose and vote for laws that keep the prison industry profitable, either by hiring more police to make more arrests and feed more prisoners into the system or by lengthening sentences to keep more prisoners from getting out. To support these tougher sanctions upon the souls who run afoul of the law, the public’s perception has to be manipulated through media reports and political rhetoric.
Three Phases of Prison Reform
It wasn’t always this way. As a report by the Sentencing Project stated, “The founding of our corrections system in the early 1800s was driven by a belief that wayward individuals could be ‘saved’ from permanent criminality through a functional corrections system.” By the 1930s, every state and the federal government had an ‘indeterminate sentencing’ system, giving judges wide discretion to impose prison, jail, probation, or monetary sentences as they deemed fit. By 1972, the incarceration rate had been falling nationwide since 1961. Set maximum and minimum sentences guided parole boards in deciding when to grant parole. Prior to 1972, prisoners in Florida seldom served 9.5 years before being granted parole. This included those convicted of the most violent offense: first degree murder.
But criticism of indeterminate sentencing grew in the late 1960s and 1970s. The system was accused “of lacking procedural fairness, transparency, and predictability …. Unwarranted disparities were said to be common and risks of racial bias and arbitrariness to be high,” a report by National Academies recalled. “Others asserted that parole release procedures were unfair and decisions inconsistent.”
Conservatives argued that indeterminate sentences allowed undue ‘leniency’ in individual cases and insufficient attention to punishment’s deterrent and incapacitating effects. However, researchers have found that increased punishment is not a deterrent, and incapacitating prisoners merely means holding them until they are too old to present a public safety threat.
The 1970s and 1980s saw several SCOTUS decisions that delineated prisoners’ constitutional rights. It was an era of prison overcrowding and violence, and numerous jurisdictions came under federal court control to rectify poor conditions of confinement.
National Academies finds three distinct phases of change in “American sentencing and punishments, and ultimately in the scale of imprisonment.” The first phase occurred from 1975 to the mid-1980s. That “reform movement aimed primarily to make sentencing procedures fairer and sentencing outcomes more predictable and consistent.”
As that phase began, SCOTUS declared the death penalty unconstitutional in Furman v. Georgia, sending state politicians scrambling to find an alternative. A 1976 Florida Legislative Report detailed interviews with guards at Florida State Prison (FSP). The legislature was considering imposing life without parole (LWOP) as an alternative. The guards unanimously were of the opinion that if you take away a man’s hope of release, there will be an increase in violence. Legislators listened to the voice of those experts. They amended sentencing laws to provide for a sentence of life without the possibility of parole for 25 years upon conviction of a capital offense, which in Florida is defined as first-degree murder and sexual assault upon a person 12 or under.
To address parole issues, many states adopted a matrix system to guide parole decisions. Such a system scores points for the crime at conviction, with “aggravators” based upon the crime and the prisoner’s history. It creates a presumptive parole release date that is discretionary.
The second phase of reform, from the mid-1980s through 1996, “aimed primarily to make sentences for drug and violent crimes harsher and their imposition more certain.” By 1983, 49 of the 50 states had adopted mandatory sentencing or “three strikes” laws. By 1994, every state had adopted mandatory-minimum sentences; most had several. The federal system and many states abolished parole and adopted Uniform Guidelines, as those who advocated for ‘Truth in Sentencing’ argued that the amount of time served by prisoners was a problem that needed fixing. In most states, the percentages of those entering prison at least doubled.
In the midst of this, the U.S. was experiencing two drug epidemics that fueled a surge of violence. TV’s Miami Vice in the 1980s dramatized the drug trafficking problem in Florida as a cocaine epidemic swept the nation. Media sources sensationalized these crimes to increase viewer ratings. Tough-on-crime was a peg on which many a politician hung his hat, including former Delaware Senator – and now U.S. President – Joseph R. Biden, Jr. (D).
In 1992, then-U.S. Attorney General William Barr argued that ‘prison works.’ He called for increasing the number of people in prison and proposed a major national program of prison construction. Congress heeded him and enacted the Violent Crime Control and Law Enforcement Act of 1994. It authorized $8 billion to states to pay for prison construction. To qualify, states had to demonstrate that violent offenders would be required to serve at least 85% of the imposed sentence. The District of Columbia and 28 states satisfied this and other requirements.
The third phase, since the mid-1990s, “has been a period of drift,” read the National Academies report. “The impetus to undertake comprehensive overhauls or make punishments substantially harsher has dissipated.” Most of the several hundred state laws passed since 2000 that sought to make sentencing less rigid and less severe have targeted minor or shorter sentences. Violent offenders have, for the most part, been excluded from reform efforts. The Sentencing Project identified 75 criminal justice reforms in 40 states and the federal system that excluded violent offenders.
Florida voters were praised in 2018 for passing Amendment 4 to the state constitution, reinstating to returning citizens the right to vote once they complete all terms of their sentence. Yet even that move created a class of deplorables by excluding those convicted of murder or a sex offense, drawing PLN’s opposition to the initiative. In the end, it didn’t matter anyway; the state legislature’s GOP majority immediately gutted the change by insisting that completing all terms of a sentence included paying fines and fees, even if the released prisoner is unable to pay and even though the state often can’t say how much is owed. The U.S. Court of Appeals for the Eleventh Circuit agreed in September 2020, effectively re-disenfranchising some 774,000 Floridians. [See: PLN, Oct. 2018, p.32; and Oct. 2020, p.46.]
Outside of ballot initiatives, criminal justice reform usually dies in Florida legislative committees each year. But the 2023 Legislative Session ended the loss of programming money from DOC kickbacks for phone calls and canteen items. In 1996, the Legislature abolished the Inmate Welfare Fund (IWTF), which funded education, chaplaincy, wellness, library and other self-improvement programs, ordering those kickbacks to be placed in the State’s General Revenue Fund. In 2021, the Legislature heeded former DOC Secretary Mark Inch’s request to reinstate IWTF and permit usage of about $2 million annually from those receipts. At the 2023 session, Legislators approved $32 million to be used by IWTF for prison programming purposes.
On the national level, Congress took a big reform step with passage of the First Step Act of 2018. It retroactively reduced the penalties for drug offenses. That led to a reduction in the number of people serving life or virtual life sentences. But despite that legislation, the number of prisoners held by the federal Bureau of Prisons (BOP) swelled by 3% in just one year, from 2020 to 2021. Nationwide, the federal Bureau of Justice Statistics reported in December 2022 that the number imprisoned in the U.S. declined 25% from 2011 to 2021 – though over half the drop was recorded in 2020 with the onset of the COVID-19 pandemic. Moreover the number imprisoned without hope of release has hit historic proportions.
Unaffected by reform, and even deprived of consideration of its benefits, is the population of “lifer” prisoners, including those serving LWOP or a parole-eligible sentence that is considered a “virtual life sentence” because it lasts 470 months – over 39 years – or more. That class of prisoners is currently larger than the total of number prisoners fifty years ago: In 1970, there were 197,245 persons held in all state and federal prisons, while in 2020 there were 203,885 lifers and virtual lifers serving time in the “land of the free.”
Every state has increased its number of lifers since 1970. The smallest jump was in Maine, with a 24% increase. But in 24 states, like the U.S. as a whole, the lifer population alone is greater than their total prison population in 1970. The top three increases were found in Utah (458%), Nevada (415%) and Alaska (208%). The states with the most lifers were California (40,878), Florida (15,116) and Georgia (10,148).
Every state but Alaska authorizes LWOP. Half of the LWOP population is serving time in California, Florida, Louisiana, Michigan and Pennsylvania. Florida had the most LWOP-sentenced prisoners (10,438). California’s lifer population comprised 33% of its total prisoner population; of those, 5,134 were LWOP-sentenced. Only 13 states and the federal system have a lifer population that represents less than 10% of their total prisoners. In all, 55,945 people were serving LWOP sentences in 2020.
In state prisons, lifers have often committed less severe crimes, with 44% of those serving LWOP not convicted of murder. The Sentencing Project reports that 30% of lifers are 55 or older, which is well past the age when committing a new offense is a risk. About 15% of lifers are repeat offenders who committed crimes such as robbing a church of a laptop, holding up motel clerks for small amounts of cash or stealing a television or even waving a knife. A report by the American Civil Liberties Union (ACLU), A Living Death – Life Without Parole for Nonviolent Offenses, details the effects of LWOP upon prisoners who are sentenced to hopelessness.
The rise in the number of life sentences is the fruit of laws such as a 1997 Florida bill titled the Prison Releasee Reoffender (PRR) Act. It allows prosecutors to seek a mandatory statutory maximum sentence against anyone convicted of a felony within three years of release from prison. Since 1983, when a life sentence was allowed to be imposed for anything other than a capital crime, it was an LWOP sentence. In 1994 and 1995, Florida Legislators closed the capital crime parole loophole and mandated imposition of an LWOP sentence.
“The scope of life without parole is huge in Florida,” said Christopher Seeds, a professor at University of California in Irvine and an expert in life sentences. LWOP has a severe, negative psychological impact.
“It’s part of the requirement for normal human development and psychology to have a vision for yourself in the future so that you have a goal. So that you can imagine that things will get better in the future. It’s the view of the future, and it’s the hope that things will get better – there’s always that hope that things will get better,” said Terry Kupers, a psychiatrist who specializes in prisons. “But when you get LWOP, there’s such a starkness to it, you are never going to get out of there. That leads to a kind of despair, the despair of ever having another life, because in prison with LWOP that just gets wiped out.”
“Offenders sentenced to death by incarceration suffer a ‘civil death,” said a report by Real Cost of Prisons Project. “It might be better to say they ‘exist’ in prison, as prison life is but a pale shadow of life in the free world. Their lives are steeped in suffering. Their prison is their cemetery, a cell their tomb.”
The Sentencing Project found that a higher percentage of LWOP prisoners suffered from mental illness – primarily serious depression – than parole-eligible prisoners with a life sentence. Studies on the mental health consequences of indefinite detention have found that their open-ended term of confinement causes detainees to develop feelings of hopelessness and helplessness that lead to depressive systems, chronic anxiety, despair and suicidal ideation.
“Despite my best efforts,” observed one lifer, “I lead a pointless, monastic existence with no end in sight . . . I live in hell.”
“It’s a slow death sentence,” said LWOP-sentenced prisoner Tyrone Bolden. “It is a terrible, horrifying feeling [to] know every day you wake up you [are] bound to die in prison or never see daylight. It’s unexplainable.”
The ramifications of mandatory sentences – or those that require serving 85% of a lengthy imposed sentence – also have a dramatic effect upon the environment inside prisons. A statutory maximum sentence of 15, 30 or 40 years requires serving 12.75, 25.5 or 34 years, respectively. Sentences totaling decades are a regular occurrence as courts impose consecutive sentences.
The Council on Criminal Justice (CCJ) reported in July 2022 that 57% of state prisoners are serving sentences of 10 years or more. That’s up from 46% in 2005. CCJ also found that the average length of time served has ballooned from 9.7 years to 15.5 years, as has the age of those serving it, with the 55-and-over share jumping from 8% in 2005 to 19% by 2019.
Program fatigue can accompany those who have long sentences and begin their terms with programming. “Now I’m at year nine and you tell me I still have another 15 years to serve, then I begin to ask myself: what more can I do?” said Sam Lewis, who served 24 years in prison and is now the executive director of the Anti-Recidivism Coalition (ARC) in Los Angeles. “What happens is you have a person that has given up on that transformation.”
Such severity in sentencing is a recent concept in our criminal justice system. “The increase in life imprisonment and the growing extremity of our criminal system was largely driven by policies enacted in response to public fears about crime, often rooted in sensationalized media stories rather than actual prevalence of violent crimes in most communities,” the Sentencing Project notes. “Life sentences have been a part of our corrections systems since the start, but only in recent decades did it become the expectation that ‘life means life.’”
“Other industrialized nations view life sentences, like the death penalty, as immoral and unethical,” the Sentencing Project said.
as a Purpose”
Prior to 1986, Florida’s prison agency was known as the Florida Department of Rehabilitation. Like most prison systems, it focused on protecting the public by incapacitating prisoners while providing the means and opportunity for them to reenter society. With the second phase of change came clamors to end the ‘coddling’ of prisoners. Politicians and the mainstream media decried prisoners having opportunities at college, cable television, hobby crafting or living on pristine looking ‘campuses.’
Florida abandoned parole and implemented guideline sentences on October 1, 1983. Just three years later, the prison agency acquired its current name. Along with that change, legislators included a provision stating that the primary purpose of prison was ‘punishment.’ At the time, DOC was under federal court overview of its overall conditions and its provision of medical services. It was bursting at the seams and handing out hundreds of days of provisional credits monthly to alleviate overcrowding.
When I entered DOC on October 2, 1989, it still presented opportunities. There were vocational and hobby craft programs. Prisoners earned up to 20 days good time per month. Pell grants were available to take college classes. What prevailed among prisoners was an atmosphere of hope and a fear of losing privileges.
Tough-on-crime rhetoric by politicians and sensationalism from mainstream media during the drug epidemic in the late 1980s and early 1990s – along with the increase in crime that was its by-product – created an atmosphere that encouraged tough talk on criminal justice issues. The main purveyor of that rhetoric in Florida was ‘Chain gang’ Charlie Crist. Before he became a Democrat and lost the 2022 gubernatorial election in a landslide to incumbent Ron DeSantis (R), Crist was a GOP state senator from St. Petersburg who successfully sponsored laws in the 1990s that removed funding for prison programs, abolishing hobby crafting and de-beautifying prison grounds. An 85% sentencing law was enacted, too.
Since 1996, no reform has occurred. Florida also took advantage of federal grant money under the Violent Crime Control and Law Enforcement Act of 1994. Flush with that money, it went on a prison building binge to create its human warehouses, their capacity peaking at over 102,000 prisoners.
In my current environment, it is not unusual to hear comments such as “Why do I want to do programs or make change? I have no hope of release.” Others have said they don’t care about getting in trouble because it will have little, if any, impact upon their release date. Of course, there are many lifers and other long termers who make changes to have a better life under the circumstances, and those who take programs for the sake of self-improvement. The point is that there is a large group of prisoners who perceive they have no incentive for programming or change, nor any rationale to comply with rules because their situation is hopeless.
The environment I live in is not conducive to change. Currently, I reside within Florida’s most violent prison. Idleness is enforced because recreation is sporadic and extracurricular activities are, for the most part, restricted to religious programming. Stabbings are an almost daily event, resulting in numerous “trauma hawk” medical helicopter flights from the prison, which cost upwards of $36,000 each. Many other prisoners place themselves in a comatose state to deal with their situation by self-medicating with synthetic drugs.
The National Offender Management Service found that prisoner drug use is linked to an increase in “disturbed and disruptive behavior.” Steve Gillan, general secretary of the U.K.’s Prison Officers’ Association, said in 2015 that attacks on staff in that country’s prisons the year prior could be partly attributed to drug use. “It is leading to an increase in violence both on each other and on staff,” he said.
Severe understaffing is a nationwide problem in the U.S. In Florida, it is so bad that the National Guard was called in to help provide security on the perimeter of some prisons. Mandatory overtime is the rule for guards. The lack of staff inhibits opportunities for recreation, typically a prisoner’s avenue to burn off the daily anxiety of doing time. Security posts that used to have three certified guards now regularly have only one, and that staff member is typically a trainee due to a high turnover rate. When needed to conduct counts or respond to violent incidents, guards must leave their posts in other areas to pick up the slack.
As this article is written, I sit in an open bay dormitory that houses 75 other prisoners. Bunk beds separated by three feet of space line the walls and two rows of single bunks fill the middle. The heat index was 107° on July 1, 2023, and it is hotter in the dorm than outside. The six ceiling fans slowly twirl, providing air movement to the few who were lucky enough to be assigned to a bunk underneath one. Cold water is not available to drink or for a shower.
When questioned about the latter during a dormitory inspection, a captain stated, “We are required to provide you water. We do that; there is no requirement it be cold.” Another shift supervisor was asked about fans sitting in the warehouse that were donated for the dorms. She responded, “Those are for the dog program.” These prison supervisors then returned to their air-conditioned office once they completed their daily rounds of housing areas.
The combination of hopelessness, enforced idleness, and warehousing in these deplorable conditions creates a volatile atmosphere. It leads to increased violence and conditions that promote recidivism.
“It’s a system in crisis,” former DOC Secretary Mark Inch told a state Senate budget committee in February 2021. Since then, guards’ starting pay increased from $33,500 per year to $41,600. That, however, has not alleviated the staffing problem, as DOC continues to experience a 24% vacancy rate.
Prison officials have responded in various ways to the violence. California and Florida have infamously relied upon lockdowns and solitary confinement as a solution to control prisoners. Solitary incapacitates violent prisoners by placing them in long-term isolation. According to the Southern Poverty Law Center, Florida has about 10,000 prisoners – one of eight – in solitary confinement. A legal challenge was recently beaten back by DOC, which also won legal costs and fees, as reported elsewhere in this issue. [See: PLN, Oct. 2023, p. 47.]
Florida has set aside seven “incentivized prisons” offering increased privileges for good behavior even as it has created Administrative Management Units (AMU) to hold prisoners in isolation with enhanced security, an effort to tame them with a choice between the carrot or the stick. The vast majority of prisoners, though, still reside in between these extremes.
Prison officials at Florida’s Hardee Correctional Institution are “tired of the violence,” said Assistant Warden H.A. Finch at a meeting on June 30, 2023, with prisoners selected to start a sanctuary program at the prison called Casting Hope. Their mission is to create a faith and character-based program to provide a safe haven for prisoners who have made a commitment to personal change. The objective is to provide a place for prisoners to offer and receive instruction in changing their criminal thinking. Finch admitted that prison officials do not have the solution, so they turned to prisoners in hopes of reducing the violence that prevails at the prison.
This is a huge shift from traditional policy, but the question is: Will it work? It is this writer’s personal experience that it may have some effect, but it is not the solution. The real solution lies in reforming the criminal justice policies that resulted in the current crisis. As the experts who oversaw FSP in 1976 prophesied, without hope, violence will increase.
A Public Disservice?
Every generation has a duty to administer checks and balances upon the policies promulgated and implemented by the previous generations. As Eighth Amendment precedent holds, our standards of decency evolve. Abolishing slavery was an evolution in public policy that changed the country. But many of today’s prisoners are slaves who work for little or no pay. Prison housing conditions during the summer in Florida would be deemed a violation of law if they were visited upon domesticated pets in a kennel.
The second phase of reform – in the dozen or so years before 1996 – occurred during a unique period of time. Two drug epidemics in one decade, sensationalized violence fueled by those epidemics and extreme early release policies to relieve overcrowding created the atmosphere in which tough-on-crime and “Truth in Sentencing” policies became popular refrains that easily passed into laws.
The current generation must understand the history of how we got where we are before they accept the rhetoric that props those policies up. We should question whether the policies born out of that era line up with current standards of decency. People are quick to say that everyone deserves a second chance; that is, until they are convicted of a violent felony. The result is that the single largest group of incarcerated prisoners remains untouched by reform efforts.
A PPI report counted nearly one million people in the U.S. who are imprisoned for a violent offense. The failure to provide them meaningful programming means that some will commit additional crimes in prison that will lengthen their sentences. When they are released – and most will eventually be released – the long-term exposure to violence and hopelessness they have faced means they will often pose a threat to their communities.
“When violent crime increases in neighborhoods, sometimes lawmakers instinctively respond with demands for stiffer sentencing or increased punishment, but those actions are often taken without regard to the effectiveness of the penalties imposed,” said Kathryn Bocanegra, an associate professor at Jane Addams College of Social Work at the University of Illinois Chicago. “Just because we increase long term prison sentences, the evidence does not bear out that that makes our community safer.”
The National Research Council conducted studies in 1978, 1993, and 2012 that examined the literature on deterrence and concluded that insufficient evidence exists to justify predicating policy changes on the general assumption that harsher punishments yield measurable deterrent effects. Despite the fact that nearly unanimous findings over the last three decades reached the same conclusion, calls continue to be made to reject reform or to impose tougher sanctions.
One study concluded that incarceration can be counterproductive. While a prison sentence can incapacitate people in the short term, it actually increases the risk that someone will commit a crime.
Increased sanctions are often justified in the name of victims. Most victims, however, want prevention, not incarceration. “States concerned about victims’ rights should respect those preferences and invest in alternatives to incarceration and violence prevention,” stated a 2016 national survey of survivors of violence by the Alliance on Safety and Justice.
Recent efforts at reform have drawn the line at violent offenders. The result is that these offenders receive lengthy sentences, become geriatric prisoners, and ultimately cost the most to incarcerate. Statistics demonstrate this is bad policy because it is these offenders who have the lowest recidivism rate. Research shows that those convicted of violent crimes do not “specialize” in violence, and they are not inherently dangerous people, PPI concluded.
The federal Bureau of Justice Statistics (BJS) recently released two studies of 400,000 people released in 30 states in 2005. While it found re-arrest rates are high for all those released from prison, people convicted of violent offenses are less likely to be re-arrested within three years for any offense than those convicted for nonviolent offenses. BJS found that only 2.7% of the estimated 7,500 people convicted of homicide are re-arrested for a homicide; they were much more likely to be re-arrested for nonviolent property offenses (24.4%), drug offenses (26.1%), or public order offenses (45.8%), which includes violations of probation or parole.
Remarkably few people convicted of a violent offense return to prison after release. Safe and Just Michigan examined the re-incarceration rates of people convicted of homicide and sex offenses who were paroled from 2007 to 2010. Of 820 people released on a homicide conviction, only two (0.2%) were convicted of another homicide. A 2010 Stanford University Law report followed 860 released murderers. Only five returned to prison in the study period.
A 2012 Maryland court ruling (Unger v. Maryland) led to the early release of almost 200 people convicted of violent crimes in 1981 or earlier. As of 2018, only five of those offenders had been returned to prison for violation of parole or a new crime. “‘The Ungers’ were released with robust social support, underscoring the effectiveness of community-based programs and services in preventing future offending,’’ noted the PPI report.
PPI also noted that many who committed violent crimes were victims themselves of violent crimes. Most often, the victimization occurred when they were juveniles. As a result, many also developed substance abuse disorders.
“While past victimization does not excuse violent behavior, it is certainly a mitigating factor,” the report continued. “Moreover, it is further evidence that violence is not inherent, but rather a context-dependent behavior that can change with intervention.”
When running for the Florida governorship in 2018, the Democratic version of “Chain gang” Charlie Crist repented of his advocacy for tough-on-crime laws as a Republican in the 1990s. He said they were too severe and were not working towards the public interest. Reactionary GOP voters were not swayed, and Democratic voters were unwilling to forget, leading to his loss. But some states have taken steps towards reform, resulting in declining prison populations. [See: PLN, Oct. 2023, p. 19.]
Some reformers advocate for investing resources into those who have been traumatized by a violent crime, saying it is necessary to prevent them from engaging in future violence as perpetrators. “When violence occurs, we need to attend to those who have been traumatized,” said Bocanegra. “If there is an effective trauma response to violent incidents, we will see fewer of them and disrupt the cycles of violence.”
Preventing violence is essential, but when it occurs, what should be the response of the criminal justice system towards the offender? As someone who has been convicted of first-degree murder, I understand the position of those who advocate for serious punishment for a crime for which there can be no restitution.
Researchers have found that most offenders are imprisoned for crimes committed while in their developmental stage and punished far beyond what is required to protect public safety. The cost of imprisoning these offenders takes billions from taxpayers each year, and the cost continues to increase as the prisoners age.
“[V]iolence is highly dependent on age,” said PPI. “As people change over time, their risk for violence also changes. It’s a well-established fact that crime tends to peak in adolescence or early adulthood and then decline with age, yet we incarcerate people long after their risk for violence has diminished.”
PPI said that what it calls the “age-crime curve” can be explained in part “by the fact that brain development continues well into people’s twenties, particularly in the prefrontal cortex, which regulates impulse control and reasoning.” This is “especially important because nearly 40% of people serving the longest prison terms were incarcerated before age 25. By issuing such lengthy sentences for young people convicted of violent crime, we are also ignoring their great potential for personal transformation and rehabilitation.”
A report by the Sentencing Project said that “[w]hile those who engage in violence may take a while longer to distance themselves from crime, the aging out process begins its downward slope in the average case by one’s mid-20s.” Analyzing BJS data, researchers found “the peak age of arrest for robbery is 19, declining by more than half in the late twenties. Likewise, the peak age for murder is 20, a rate that is more than halved by one’s 30s and is less than one-quarter by one’s 40s.”
“Even among the small number of people identified as ‘chronic offenders’ who have committed a series of serious crimes,” the report concluded, “most no longer engaged in criminal behavior past their late 30s.”
In a recidivism report for Florida prisoners released from 2010 through 2017, DOC found that those convicted of murder had a 16% recidivism rate, the lowest rate among all offenders. It also found that those who were 50-59 had a 22% recidivism rate while those 60 or older had a 16% rate of recidivism. By contrast, a separate CCJ report found that three-quarters of those with the most serious criminal histories who were under 21 were rearrested within eight years.
PPI advocates for alternatives such as increased probation, problem-solving courts, and community-based programs. These alternatives, however, are not digestible for victims and politicians when faced with a violent offender.
When asked about how often his office seeks a mandatory maximum sentence under Florida’s PRR, St. Petersburg State Attorney Bruce Bartlett said not “100% of the time.” He also offered a solution to the problem of lengthy sentences: “Quite frankly, I wish they would bring parole back.”
The Florida Commission of Offender Review has jurisdiction over about 3,700 parole-eligible prisoners. The state paroles less than 30 per year. In recent years, though, few or none of those paroled were returned to prison.
Australia has a parole system that illuminates the potential for larger success. According to a report by the Bureau of Crime Statistics & Research for the state of New South Wales – which includes Sydney – release to parole reduces the likelihood of re-conviction within 12 months for the marginal parolee by 17.5%. For those convicted of a personal property or serious drug offense, it falls by 24%.
The European Court of Human Rights in 2013 barred the imposition of LWOP on the principle that individuals who have reformed themselves have the “right to hope.” While lifers committed serious offenses, the Court found those individuals were capable of reform.
“The concern for upholding human dignity and opportunities for transformation prioritized by other nations, even for the most serious crimes, contradict the unmitigated harshness of the U.S. criminal legal system,” the Sentencing Project said.
Is the current stance towards violent offenders in the U.S. consistent with the standard of decency in an ever-evolving society? Or is it a reversion to the dark ages? The current policies do not align with society’s belief that people change and are deserving of a second chance.
This is a tough battle to fight because lobbyists hired by the prison industrial complex infuse cash into politicians’ war chests. Those politicians then vote for policies that drive mass incarceration to ensure they continue to receive political contributions. In addition to sentencing reform, though, prisons must begin to offer rehabilitative programming and conditions that inspire change by offering hope of release.
“Our prisons should do everything we can to encourage and reward rehabilitation,” ARC’s Lewis said. “It gives hope and it changes how a person sees the world.” Absent that kind of hope, we can expect violence to continue to increase inside our nation’s prisons.
Sources: ACLU, Forbes, The Marshall Project, National Academies, Pew Charitable Trusts, Real Cost of Prisons Project U.S. Sentencing Commission, Sentencing Project, Time, Washington Examiner
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