Knee-jerk Legislation Makes Bad Law

With the highest incarceration rate in the world, American liberals and conservatives are crossing ideological lines to question why.

For every 100,000 citizens, China jails 165, Russia 450, and the U.S. 754. In 2008, one in 100 Americans were behind bars and one in 32 was under the supervision of the criminal justice system.

There are many reasons for this, some racist, some paranoid, some xenophobic but very few are based in reality or even on sound penal philosophy. In 2014, 68 % of offenders were rearrested within three years and 77% within five years. So much for detention and the death penalty as deterrents to crime. As The Free Press famously headlined ambiguously some years back, Death Penalty Found to Reduce Recidivism.

Whether we’re questioning our mass incarceration policy now because of the $75B cost, the poor societal return-on-investment, or the questionable logic and ethics is less important than the fact that the policy is finally being examined through new lenses.

Here in Vermont, Corrections is making serious efforts to reduce the population and to find successful pathways to social and economic re-entry. But Corrections doesn’t jail people; police, prosecutors, legislators, and courts do. Corrections simply oversees their sentences and security.

The human desire to eliminate risk often generates legislation responding to a tragic, if rare, criminal incident. Vermont S. 154 is such a bill, calling for “enhanced penalties for assaulting an employee of the Family Services Division of the Department for Children and Families and to establish the crime of “criminal threatening.”

Such knee-jerk legislation, although inspired by a horrific murder, only expands the thoroughfare into prison and removes discretion from the hands of judges, as did the Rockefeller Drug Laws with their mandatory minimum sentences.

Most penal authorities agree that the prison environment enhances criminal skills and recidivism, and that the best strategy for successful social re-entry is diversion from prison, not sentencing to prison. S. 154 criminalizes more bad behavior. It doesn’t prevent it.

Since prison has become the de facto storage system for the mentally ill, drug addicts, impulsive young men, those awaiting trial or past their release date but homeless, we must eventually confront the larger society we’re creating and think differently.

We can start by avoiding efforts to legislate morality or criminalizing more bad behavior as does S.154, and by passing S. 206, which amends technical and administrative violations – often beyond parolees control – that sends them back to prison and S.207 that opens new doors to secure reentry and compassionate release.

We might also imagine how to use our underutilized college systems to forge a secure offender pathway to reunion with families, society, and the economy.

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