I appreciate D.J. Tice’s interest in greater rationality when it comes to discussions about criminal justice (“On crime, how times have changed,” Feb. 21), in particular as inquiry into its possible excesses has become the agenda. To continue the conversation, it may help to recognize two key problems in the way the system operates.

One is that decisions about imprisonment are almost all front-loaded. The other is that these front-loaded decisions are based on misapplied “economic” notions.

For most of us, our only direct experience in determining punishments comes from being a parent. The angrier we are about our child’s transgression, or the more we feel a loss of control over their behavior, the greater our instinct to pile on the punishment. For some, this could mean a more forceful spanking (though this method is past its expiration date as socially acceptable). More commonly, a longer time in forced isolation may be imposed — 15 minutes in the corner instead of five, or the whole afternoon in his or her room instead of a half-hour. For older children, stiffer punishment might mean a longer period of being grounded or denied access to computers or cars.

We often reconsider before our first, blurted penalty has been fully served. We end the punishment early, recognizing the pointlessness of grounding a kid for the whole summer, or keeping a child behind a closed door all afternoon — that is, once the child, and the parent, have entered into a different state of mind. Often, parent and child have recognized, whether or not it has been verbalized, that all will benefit from moving on, and allowing the child to re-establish some personal accountability.

I apologize for resorting to this analogy of parenting, given the demeaning implications of criminals as children, especially in a racially disparate system such as criminal justice. My aim is only to help readers see the problem with criminal justice making long-term incarceration decisions at what equates to a parent’s snap response.

Just as there’s much to reconsider about a full summer’s grounding once the teen appears to be more harmed than helped, so, too, is it often the case that, by year four of a 10-year prison sentence, further incarceration’s harm may outweigh its benefit. But while a parent can change the consequence at a moment’s notice, the criminal justice system in Minnesota offers no similar opportunity for sentence reconsideration.

The problem is compounded by the fact that criminal sentences derive from a false application of the economic theory of pricing. It may very well be good public policy to tax cigarettes and make the price high enough for consumption to go down. But the “price” of crime, as measured by sentence length, has no proportional relationship to reducing its occurrence.

As Tice commented, upon review of the research, “crime is a bafflingly complex social phenomenon” and there’s much we do not know. But that doesn’t appear to stop legislators and prosecutors from pushing for increased sentences year after year, as if this higher “price” will magically reduce crime.

The only known result of longer sentences is that people waste more of their years in prison. (An indirect problem is that longer sentences create strong incentives for plea bargains, leading some innocent defendants to plead guilty.)

The counterargument tries to claim the mantle of public safety, noting the obvious fact that persons in prison cannot commit new crimes against the general public. But the same argument could justify 100-year sentences for all crimes and ducks the issue of how much punitive isolation is truly needed to achieve public safety. Moreover, the fact is that no one really knows at the time of sentencing how long a sentence will be required to reduce the threat from the convicted party. Nor does it make sense to base a prison term solely on the crime committed and not consider other factors like age and an evolving state of mind.

That our irrational system is not only defended but yearly enhanced reflects a range of other motivations that have nothing to do with public safety. Political self-interest must be included, such as implied by recent news stories about the impact on Appleton, Minn.,’s local economy of having a prison as an employer, and the desire of a law enforcement veteran, Rep. Tony Cornish, R-Vernon Center, to keep drug sentences high.

When it’s not their own sons and daughters, it’s easy to rile up the public with something like that initial sense of parental outrage, one that never gets tempered by time, experience, or empathy. It’s easy to support grounding, and why stop at the whole summer? Why not two years? In the criminal justice world, not even judges experience the equivalent of the August of a summer’s grounding. Or the October, after the ordeal has finally ended but the shaming lingers so that it’s difficult for the “household” to regain a positive tone.

An innovation Tice did not spotlight, but which offers needed guidance, is the advent of problem-solving courts (drug, DWI, mental health, veterans), which attend both to the problem of crime and the need for rational justice. Instead of allowing a sentence to prematurely determine an outcome, these courts lengthen their involvement with the defendant, in essence living with them through their process of acquiring enough outside support and achieving enough personal accountability that the system’s involvement can end with better confidence in public safety (and, not coincidentally, reduced defendant shame and more positive motivation).

The natural evolution of such an approach, one that will bring deeper healing not just to individuals but in race relations as well, will arise once we motivate and allow a safe and supported return to society as soon as it can be safely accomplished. No matter what we first decided when we were angry.

 

Michael Friedman is executive director of the Legal Rights Center in Minneapolis.