Individual incentives & sentencing reform…

I recently posed a question on a LinkedIn forum.  Jon Paul, from Milwaukee Wisconsin, replied privately with considerable insight.  He offers the unique perspective of an individual with a family member who was convicted of a financial crime and as professional law enforcement officer.

I think the biggest general issue that is vitally important at sentencing is to treat each case, each person and each circumstance individually and uniquely

The question is this: From your perspective, what are the problems associated with sentencing in criminal proceedings and what are the solutions?

I am interested in your response as well as your thoughts regarding Jon’s comments.  You are invited to share them publicly here or privately in an email via the Contact page.

incarceration is not always the most appropriate punishment… there is no incentive to act appropriately or to try to better oneself

Jon has graciously granted permission to publish his comments on SENTENCING ALTERNATIVES.  I have taken the liberty to emphasize what I consider key points.  Thank-you Jon

Subject: RE: From your perspective, what are the problems associated with sentencing in criminal proceedings and what are the solutions?

many acts which could be handled in a non-criminal manner are referred to the criminal justice system

I perhaps have a unique perspective on this issue – I am a career professional in the criminal justice field, and I have arrested and helped convict many criminals; but I also have first-hand experience with having a loved family member convicted and incarcerated for a financial crime. This combination has influenced my thoughts on the subject. So here are a few ideas to hopefully be considered:

Issue: The overburdened judicial system.

Comments: In this country as a whole, and in many individual states, many acts which could be handled in a non-criminal manner are referred to the criminal justice system; and incarceration is looked at as the primary and most desirable/effective means of punishment. For this reason, the entire system – courts, judges, prosecutors and defense attorneys, and the entire support network for the system are tremendously overburdened. The result is that individual cases cannot be looked at individually, and people and acts are pigeon-holed into broad general categories rather than being looked at as individuals and unique circumstances.

every criminal’s situation is unique… all crimes are not equal, and all motives for committing crimes are not equal… the system needs to get away from the “one-size-fits-all” mentality

Issue: Taking into consideration an individual’s particular circumstances which led to the arrest/conviction/sentence.

Comments: In reality, every criminal’s situation is unique. And unless those individual circumstances are fully explored and dealt with, person’s with entirely circumstances/motives will be lumped together and treated the same, which perpetuates the problem of unjust and inequitable sentencing. For example, in my family’s situation: Because of case load and time and financial constraints, the case value of my family member’s crime was not independently verified by defense counsel – he simply accepted the DA’s case value (which we thought was unreasonably and even impossibly inflated) because he did not have the time or resources to personally examine the thousands of pages of documents which were involved in the financial situation. As a result, the sentence was probably significantly longer than it would have been had we been able to establish a lower case value.

And as a related issue, the specific, verifiable motive for a crime needs to be established to assure a more just sentence. The person who steals a loaf of bread to feed her hungry child should be sentenced differently than the person who steals a loaf of bread because he is bored and has nothing else to do who should be sentenced differently from the person who steals a loaf of bread to sell to get money to support a drug habit. All crimes are not equal, and all motives for committing crimes are not equal.

demographics and circumstances differ from person to person, so those issues should be taken into account at sentencing

Issue: Few alternatives to incarceration.

Comments: Many states simply believe that incarceration is the most appropriate punishment for persons convicted of criminal offenses, period. But this is not really the case. In today’s world, with significant changes to the types of crimes being committed – financial crimes, crimes related to gambling addictions, web-based crimes, etc. (basically non-violent crimes); and significant changes to the types of persons committing crimes – more middle-aged persons of both sexes, many being first-offenders, the need and efficacy for incarceration is changing. Again, the system needs to get away from the “one-size-fits-all” mentality.

Issue: Taking into consideration an individual’s propensity for rehabilitation.

Comments: Individual demographics and circumstances differ from person to person, so those issues should be taken into account at sentencing. The recidivist should probably be sentenced differently from the first-time offender. In many states, rehabilitation and early-release programs are available only to persons convicted of drug- and alcohol-related crimes; yet these are the very persons who are most likely to be recidivists. Rehabilitation and early-release programs should be developed for those individuals who are the most likely not to re-offend.

Issue: The need for rehabilitation – is it necessary for everyone?

Comments: Everyone who has committed a crime – especially those who commit first-time offenses and whose motivation for the crime was “understandable” (ala the woman as noted above who stole the bread to feed her hungry child) – may not necessarily need rehabilitation. So sentencing should be aware of those kinds of circumstances, and perhaps incarceration is not always the most appropriate punishment.

Issue: Mechanisms for sentence adjustment based on behaviors and activities while incarcerated.

Comments: Even when “truth in sentencing” is the norm (the sentence imposed is the sentence served), there should be some provision for sentence modification based on behavior and other activities while incarcerated. Absent such opportunities, there is no incentive to act appropriately or to try to better oneself.

Issue: The convicted person’s outside network to help deal with incarceration experience and ultimate rehabilitation.

Comments: An offender’s family and peer group are as important to rehabilitation efforts as are formal rehabilitation programs, because it is these groups which will be around long after a period of incarceration has ended. If these groups are strong and supportive enough, they should be considered during sentencing, and perhaps even incorporated into sentences.

Issue: Reentry programs to prepare person for dealing with the outside world after incarceration.

Comments: Being in a totally structured environment and away from the fast-changing real world for lengthy periods of time does not prepare persons to face that real world after the period of incarceration has ended. Upon release, offenders are required to adjust virtually immediately to a world that they have not participated in since the beginning of their sentence, because not doing so creates the risk of being re-incarcerated. If we are going to expect people to deal with the outside world, much needs to be done to prepare offenders to do so.

I think the biggest general issue that is vitally important at sentencing is to treat each case, each person and each circumstance individually and uniquely. For to not do so results not only in unfair sentences, but in individuals who are not being helped to return to productive life after incarceration.

I hope these comments are helpful.

Jon Paul