Criminal Justice at the Crossroads: Transforming Crime and Punishment

William R. Kelly, professor of sociology and director of the Center for Criminology and Criminal Justice Research at the University of Texas at Austin, discusses his new book, "Criminal Justice at the Crossroads: Transforming Crime and Punishment," and the costs of mass incarceration.

The following is a transcript:

RAPHAEL POPE-SUSSMAN: Hi. This is Raphael Pope-Sussman for the Center for Court Innovation. Today I'm speaking with William Kelly, professor of sociology at the University of Texas, Austin, and the author of the new book, Criminal Justice at the Crossroads: Transforming Crime and Punishment, from Columbia University Press. Professor Kelly, thank you for speaking with me today, and welcome.

WILLIAM KELLY: It is my pleasure.

POPE-SUSSMAN: Why is this a crossroads in the American criminal justice system?

KELLY: I believe we're at a decision point that was triggered from the recession that began in 2008, that caused states to start taking a hard look at how they spend money. They began to realize that crime control was a very expensive proposition, and that began the discussion affecting about how might we go about doing this differently, primarily motivated by trying to save public revenue. That seems to have begun to evolve into a broader discussion of, not only saving money, but trying to be more effective in how we go about the business of administering criminal justice.

It's a crossroads because of the opportunities that have been presented by economic considerations, really a fair amount of lead from the U.S. Justice Department. Eric Holder, when he was the attorney general, launched a discussion about being “smart on crime.” And those types of phrases and that type of thinking has really begun to take hold.

POPE-SUSSMAN: Your book explores the origins and evolution of America's fixation on this idea of being “tough on crime.” Can you give our audience a sense of what that's translated into in terms of policy?

KELLY: Beginning in the early 1970s, we shifted policy rather dramatically from focusing more on rehabilitation than on punishment. The events of the 1960s, 1970s--high crime rates, race riots, campus protests, led to the evolution of a focus on controlling crime primarily through the mechanism of punishment. That policy, at the time, made really quite perfect intuitive sense. The problem is disorder; the remedy is punishment. Policymakers got it; the public got it. That launched decades of what we call “crime control,” or “tough on crime” policies that led to, among other things, a really substantial capital investment in things like prisons, extraordinary expansion of the criminal justice system, fundamental changes in statutes like sentencing laws that shift discretion away from judges to more determinate sentences that, in the end, are more severe, changes in parole policies and laws that keep inmates in prison longer and longer.

As the dust has settled on 45 plus years of tough on crime policy, we see the largest prison system in the world. We are the country with the highest incarceration rate in the world. I think the public is getting to be familiar with the statistics that we have 5 percent of the world's population, but 25 percent of the world's inmates. The image that the world has about the U.S., is the use of incarceration, which is certainly a distinguishing point, but that's not the end result of the reach of the American criminal justice system. It is much bigger, much broader, and deeper than that. Jails serve to incarcerate huge numbers of individuals on a day-to-day basis. Probation and parole, versions of community supervision, also have very extensive reaches in terms of supervising and trying to control criminal offenders.

The end result of this has been a fairly deliberate march, decade after decade, into developing a fairly efficient system of punishment. Unfortunately, as it turns out, punishment doesn’t work. It's legitimate to want to punish somebody for punishment's sake. That's fine, but I think part of the bigger picture here is we need to appreciate that retribution as a motivation for punishment has no utility other than some emotional satisfaction or emotional release that we get from an eye-for-an-eye type of approach.

POPE-SUSSMAN: What was the biggest revelation for you in researching and writing your book?

KELLY: Now that is a really good question. I would say the greatest revelation is that a fairly comprehensive package of reforms that I talk about in the book, that are evidence-based, for which we have sufficient scientific research indicating that these are effective mechanisms, that that package of reform is feasible. It is doable. It is cost-effective, and it can accomplish the goal of enhancing public safety, reducing victimization, and saving money.

I think the thing that’s the most troubling thing about it, about the path forward, is not so much the mechanics of what reform should look like. In my mind, the most concerning challenge is changing how we think about crime and punishment, changing the culture, not so much of the public, but the culture of the administration of criminal justice. We've all been pretty much focused on trying to punish people, and it's difficult to change the environment, the day-to-day working environment of probation officers, of law enforcement officials, of, in-particular, prosecutors. Some individuals will embrace some reform more than others, pretty much as we saw what happened with crime control decades ago.

POPE-SUSSMAN: What are the most promising reforms or proposed reforms out there?

KELLY: Diversion is the key in terms of overall umbrella policy going forward. We should reserve prison, which all evidence indicates is criminogenic in and of itself--we should reserve incarceration for those people, those offenders, that we reasonably, truly, fear, violent offenders, clearly habitual offenders, not just somebody who has a third strike. Those are the individuals that we need to incarcerate. That should reduce the prison population dramatically. Everybody else should have some version of a balance between control, compliance, accountability on the one hand, and rehabilitation, behavioral change, on the other.

Another major challenge is the scope and scale of the criminogenic circumstances that bring criminal offenders into the justice system in the first place. We know that poverty and crime are linked, but today we know that it's much more than just, "I don't have money because I'm poor. I'm going to have to go out and commit a crime."

There are clear neurodevelopmental implications of living in poverty. There are clear neurocognitive implications of being in an environment of violence, and all the factors that are correlated with poverty play out in a variety of different ways, including mental illness, substance abuse, things like that, but a much bigger and ever-evolving list of implications in terms of the less-visible neurodevelopmental problems. If you ask the basic question, "Why didn't punishment work?" The answer is, "Because punishment doesn't change somebody's mental illness. Punishment doesn't address addiction recovery. Punishment doesn't fix somebody who has a neurocognitive deficit or impairment." Punishment doesn’t address why many people commit crime.

Now, this is not an excuse for crime. Criminals commit bad acts and they need to be held accountable, and we need to keep the public safe as we attempt to change their behavior. In my mind, and I believe the evidence pretty clearly supports this, that environment of behavioral change is not prison, but rather a balance of supervision and control in the community, and vigorous efforts at behavioral change.

POPE-SUSSMAN: I'm wondering what you think the ultimate goal of reform is. Is all policy dictated by the bottom line?

KELLY: You know, I think the thing that's going to move the public and policymakers in the direction of serious criminal justice reform is precisely that, the money issue. We can debate until the end of time what is morally correct, what is ethically correct, what is fair, and what is just, but if we want to attract attention from a variety of different perspectives, and I think that's precisely what has happened here, the reason that the Koch brothers and Right on Crime are at the same table as the ACLU is the same reason that we had sentencing reform in the 1970s, '80s, and '90s. We had both political parties concerned with different things, but with the same solution.

Republicans, the conservatives, were concerned about judges being too lenient. Liberals were concerned about unfairness and discrimination. The remedy was, get judges out of the picture. I think it's the same thing here. What brings the Koch brothers and Right on Crime to the table, at least initially, is the financial issue. What brings the ACLU and liberals to the table is that we can do a better job of this. We can make it a fairer system, but also, perhaps, a more effective system.

I think they're at the table and I think they're heading down the same road. That road is one that appreciates the fact that, while behavioral change may be expensive, it is not nearly as expensive as what we have been doing in terms of simply incarcerating individuals. The evidence indicates that, in the moment, using interventions to change behavior is generally cheaper than incarceration, and I think what policymakers sometimes fail to appreciate is that, for every offender that we can effectively change behavior, every time they don't reoffend, the cash register doesn't ring. The cost savings we can incur now will reap benefits longer term if we can reduce recidivism.

POPE-SUSSMAN: How should we define success?

KELLY: I think success is multidimensional. After a period of serious reform effort, can we look back and say, "We have really developed a system that is more cost-effective"? That's important, but that is not the end game. The end game, really, is public safety. Can we then, at some point, say, "We have effectively by whatever amount reduced recidivism"? Can we say that we have a system that does not unnecessarily place all the rest of us who are not involved in crime at the risk of being a victim?

Public support--does the public believe that justice is being done? Reducing inequity in terms of race and ethnic concentrations of individuals in the justice system, and, ultimately, the extent of which we can take individuals who grow up in circumstances many of us would find foreign and horrific, can engage them in sufficient behavioral change to become productive members of society.

POPE-SUSSMAN: Thank you.

KELLY: My pleasure.

POPE-SUSSMAN: This has been Raphael Pope-Sussman for the Center for Court Innovation, and I have been speaking with William Kelly, author of the new book, Criminal Justice at the Crossroads: Transforming Crime and Punishment from Columbia University Press. For more information on the Center for Court Innovation, visit www.courtinnovation.org.

August 2015