Thursday, December 16, 2010

Sometimes right is right

I'm often a critic of the Right when it comes to our criminal (in)justice system, but, sometimes they've actually got it "right."

Right on Crime, a conservative organization looking at how we handle crime, launched this week. Right on Crime is headed up by Marc Levin, the director of the Center for Effective Justice at the Texas Policy Foundation.

One of the priority issues for Right on Crime is overcriminalization. I've written before about the explosion in the number of federal crimes over the past century. In many cases these federal crimes are crimes that are already covered in state penal codes. The vast majority of federal crimes are regulatory crimes - "crimes" in which there is no alleged victim and no required mens rea.

There are so many of these strict liability crimes that it is impossible to keep up with them. Men and women are charged with criminal violations without ever knowing the alleged conduct was criminal. Right on Crime's solution is right in line with what I've stated in the past:

• Stop creating new criminal offenses as a method of regulating business activities. Regulation is better handled through fines and market forces, not the heavy stigma of criminal sanctions
• Avoid licensing new occupations and revise laws to eliminate criminal penalties that are currently associated with many occupations.
• Ensure that an appropriate culpable mental state is included in the elements of all offenses.
• Return the responsibility for prosecuting and punishing traditional crimes to the states.
• Revise criminal laws to remove ambiguities and consolidate redundant laws to help prevent prosecutorial abuse.

There is not one of Right on Crime's proposals that I can't say I don't agree with. Strict liability regulatory crimes should be stricken from the criminal ledger. Enforce regulatory law through civil penalties, not criminal sanctions. For the most part, violent crime should be handled by the states. Let the states handle those charged with drug crimes in state court.

Now when it comes to handling substance abuse issues, Right on Crime proposes more drug courts. On this we disagree. While it is true that many defendants charged with possession are in need of drug treatment, the courts are not the proper vehicle for delivering that treatment. Courts are for meting out justice (in a perfect world). Forcing treatment upon an individual upon threat of criminal sanction is not the best way to see that someone receives treatment for an addiction. Drug courts also serve to undermine our adversarial system by forcing defense attorneys to be on the same "team" as prosecutors and law enforcement.

Another area in which we are in agreement is that warehousing inmates doesn't work. Currently approximately one person in 100 is incarcerated. Forty years ago that number was 1 in 400. While the United States holds 5% of the world's population, we hold 23% of the world's prisoners. Something's not working. Warehousing inmates drains money from state coffers and prevents able-bodied men and women from being productive citizens which reduces state and federal tax revenue. It also creates a situation in which middle-aged men and women are released from prison without the ability to earn a living.

According to Right on Crime, we need to:

• Understand that to be considered “successful,” a prison must reduce recidivism among inmates.
• Increase the use of custodial supervision alternatives such as probation and parole. In many cases, these programs can also be linked to mandatory drug addiction treatment and mental health counseling that would prevent recidivism. States' daily prison costs average nearly $79.00 per day, compared to less than $3.50 per day for probation.
• Consider geriatric release programs when appropriate. Approximately 200,000 American prisoners are over the age of fifty. The cost of incarcerating them is particularly high because of their increased health care needs in old age, and their presence has turned some prisons into de facto nursing homes for felons – all funded by taxpayer.
• Consider eliminating many mandatory minimum sentencing laws. These laws remove all discretion from judges who are the most intimately familiar with the facts of a case and who are well-positioned to know which defendants need to be in prison because they threaten public safety and which defendants would in fact not benefit from prison time.
• For those instances when prisons are necessary, explore private prison options. A study by The Reason Foundation indicated that private prisons offer cost savings of 10 to 15 percent compared to state-operated facilities. By including an incentive in private corrections contracts for lowering recidivism and the flexibility to innovate, private facilities could potentially not just save money but also compete to develop the most cost-effective recidivism reduction programming.

Again, I agree with most of their proposals - with the exception of privatizing prisons. There is something more than a little unseemly about for-profit prisons. Throw in quarterly profit expectations and concerns over share prices and you've got a recipe for cutting corners.

These proposals are based on the principles of federalism and limited government and would, in many cases, restore some sanity to our criminal (in)justice system.

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