Beyond Bars

Eric Haines lives in his father's basement in Paterson, New Jersey, just across the street from a freshly anointed memorial to a childhood friend who was shot to death two weeks ago -- Haines' second friend to die violently in as many weeks. A white sheet hangs over a chain-link fence, facing an audience of Jesus candles sprinkled with dirt kicked up from a recent rainstorm. A few dozen feet away, several men are gathered outside a corner store, where they will remain past nightfall.

Haines might be out there with them if it weren't for the black box that's been strapped to his ankle since he violated the conditions of his parole several weeks ago. Haines, 27, has only caught two non-drug charges -- one for trespassing, one for weapons possession -- but he has been under supervision for the past nine years because he's made parole violations something of a habit. (Haines' name has been changed for his safety.)

Haines joined a local affiliate of the Bloods in 2001, and gang life brought him security and fellowship but also criminal obligations. "I wanted to live the street life and get caught up in it," Haines says. "You see guys and all the hot girls, the cars, the jewelry. You're working at McDonald's, you ain't getting that. It's not gonna happen. Why would I bust my ass all day and make like $100, when I can make like $1,000 doing nothing, selling drugs?"

The last time Haines violated his parole (by failing to report to his parole officer), instead of running and waiting to get caught, he simply turned himself in and ended up with an ankle bracelet that monitors whether he is home when he's supposed to be. On the street, Haines says, a culture of superstition has built up around the bracelet. People believe it contains a GPS, which it doesn't. People also believe it records conversations, which it doesn't. What it does do is track whether the bracelet is in the vicinity of a base transmitter placed in Haines' house to ensure he's there when he's required to be. His parole officer will remove the ankle bracelet only if he finds a full-time job or enrolls in school -- if he makes a substantial effort to leave the streets behind.

In the meantime, he showers with it on, sleeps with it on, and while it's starting to drive him crazy, Haines admits that it has probably saved his life. As a result of both the constant supervision and the suspicion the bracelet draws, he has been isolated and unable to figure out who killed his friends and potentially retaliate. In his pajama pants, white socks, and flip-flops, Haines hardly cuts the intimidating figure he hints at in conversation. He now rarely leaves his father's house, preferring to stay at home and take care of his little sisters.

The ankle bracelet might be more commonly associated with law-breaking celebrities like Martha Stewart or Paris Hilton, but some experts believe it could be the future of criminal justice -- a way to supervise offenders in the community without incurring the social, financial, and community costs of incarceration. Instead of sending Haines back to prison for a lengthy sentence that will cost the state a great deal of money, New Jersey turned him into a kind of outpatient inmate whose ability to cause suffering to himself and others is greatly diminished. He also has a chance at building a new life -- something he wouldn't have if he were incarcerated.

In the 1980s and 1990s -- the "tough on crime" era -- -incarceration was touted as the simple solution to our crime problem. Today, the United States imprisons 1 percent of its entire population. Including the number of people on probation and parole, one in 31 Americans is under supervision of the criminal-justice system. Mass incarceration has succeeded in reducing crime, but the strategy has diminishing returns. The offense rate of the top 20 percent of offenders is more than 10 times that of the average prisoner -- a few very active criminals commit most of the crime. But under the current system, offenders who could be more cheaply deterred or rehabilitated instead incur the most expensive -- and, from the perspective of its effect on the community, damaging -- form of punishment possible. This is why, even as the number of incarcerated people has increased exponentially, crime hasn't decreased at the same rate.

Fueled by the damage mass incarceration has done to state budgets, a new "smart on crime" movement has emerged to seek new ways of reducing the number of people in the system. Many states, including New Jersey, have attempted to do so by reforming probation and parole, in part by using something called "graduated sanctions" -- levying small punishments on those who violate the terms of their supervision. Instead of being thrown back in jail, parolees are confined in short-term residential assessment centers -- privately run institutions where they are evaluated. The parole board, based on recommendations from the parole officer, then decides the best course of action: revoking parole, placing the offender in a work or treatment program, or putting him on position-monitoring (using the ankle bracelet), which is one of the harsher sanctions in New Jersey.

It's important to understand that most people who violate parole aren't committing crimes. In New Jersey, a full 81 percent of parolees who return to prison are doing so because of technical violations -- two of the most frequent are failing to report as instructed and failing to obtain approval for a change of address. To throw someone back in jail for two years because of a technical violation seems unfair even to probation officers, many of whom are relieved to have more choices. "It gives you other options instead of just locking them up," says Sgt. Albert Kozak, a New Jersey parole officer. "Instead you put them in a place like [residential assessment center] Logan Hall, and they learn their lesson."

America is slowly inching away from decades of a draconian approach to criminal justice -- one that has resulted in the "land of the free" imprisoning more of its citizens than any another country in the world. In Congress, bills to repeal the sentencing disparity between crack and powder cocaine are gathering momentum. The new head of the Office of National Drug Control Policy, Gil Kerlikowske, has abandoned the "drug war" rhetoric. Religious conservatives commiserate with bleeding-heart liberals over what to do about recidivism. In states like New Jersey, officials are thinking of creative ways to curb offending behavior without relying solely on incarceration. Although ideas like graduated sanctions have been around for years, they are now being implemented in earnest as states seek new strategies for deterring crime rather than simply punishing it.

"We have the emergence of a very pragmatic, non-ideological crime-policy conversation that is allowing us to set aside philosophical differences to reduce crime and prisons," says Jeremy Travis, president of the John Jay College of Criminal Justice.

"This is the great breakthrough of the last decade."

***

Traditionally, liberals saw crime as the result of "root causes" such as poverty and poor education. Deal with these fundamental issues, the thinking went, and people will commit fewer crimes. Over time, however, conservatives successfully argued that this view was dangerously naive. Perhaps the most high-profile instance was the 1988 presidential election, in which Democratic nominee Michael Dukakis was portrayed by his opponent, George Bush Sr., as "soft on crime" for supporting prison work-release programs. Bush trounced Dukakis -- and liberals learned their lesson about crime as a political issue: There is no such thing as too tough.

In the 1992 presidential campaign, Bill Clinton took that lesson to heart. The then-governor of Arkansas left the campaign trail to make a show of signing the death warrant for Ricky Ray Rector, a 40-year-old black man who had killed a white police officer. (Rector had suffered a bullet wound to the head, and his lawyers argued he wasn't mentally competent to stand trial, let alone be executed.) Clinton sent the message to crucial middle-of-the-road white voters that he was no Dukakis. It would be a mistake, though, to characterize Clinton's behavior as mere political posturing. Later, as president, he supported the "three strikes" law that helped swell the prison population.

The intellectual champion of "tough on crime" was James Q. Wilson, a political scientist and an official in the Nixon, Reagan, and Bush Sr. administrations, who argued that breaking the law was an individual decision, not the product of social circumstances. Therefore, the only way to reduce crime was to make sure crime didn't pay. (Crime actually doesn't pay, and never did. The sociologist Sudhir Venkatesh estimates that the average drug dealer barely makes minimum wage.) Both Democrats and Republicans have, for the past two decades, made criminals pay dearly, swelling the incarcerated population to more than 2 million. But it wasn't just the criminals who paid -- it was their families, their neighborhoods, and society as a whole.

Criminal-justice policy wonks and academics recognized the problems associated with mass incarceration as early as the 1980s, and law-enforcement officials, from the federal level on down, have been searching for answers since the 1990s. A turning point came in 1998, when then-Attorney General Janet Reno organized a conference on "re-entry" -- or the return of formerly incarcerated people into society. The meeting brought together crime-policy experts, who had already been thinking about how to reduce the number of incarcerated people, with law-enforcement types who could lend credibility to their efforts.

Encouraged by the federal government, a number of states have spent the past 10 years looking for new approaches to probation and parole. Some jurisdictions funded nonprofits to help former inmates learn parenting and job skills. Others tried using drug courts that divert nonviolent drug offenders to treatment programs instead of locking them up again. Some states, including New Jersey, implemented graduated sanctions.

By all accounts, graduated sanctions are a step in the right direction. In New Jersey, the system is cheaper and more effective than re-incarcerating parole violators, and the number of violations has dropped precipitously since it was implemented in 2001. Still, with a large menu of re-entry programs, the approach is resource-intensive, throwing a number of solutions at the problem and making it difficult to discern which ones work best.

In 2004, Judge Steven Alm, a former federal prosecutor turned district court judge in Hawaii, figured out a way to make the sanctions approach simpler, faster, and more consistent. Hawaii was plagued by frequent probation violators who weren't being punished until, say, the third violation, at which point they would incur a lengthy prison term. By the time punishment was levied, so much time had passed as to make the deterrent effect negligible. (Offenders are not "rational actors" in the normal sense, explains UCLA professor Mark A.R. Kleiman in his book, When Brute Force Fails. Their cost-benefit calculations are skewed toward the immediate future, which means a delayed punishment won't feel tied to the offense.) Probation officers were swamped with cases and paperwork and were unable to give their probationers the necessary attention.

Alm's solution was to take a select group of frequent violators and place them in a pilot program called Hawaii's Opportunity Probation with Enforcement (HOPE). He streamlined the probation process, reducing the necessary paperwork and setting up a hearing system that could ensure that every single violation -- a dirty urine test, a broken curfew -- would lead to a short jail term. The judge made the consequences of violating very clear. Hearings were now held within 48 hours of the violation rather than days, weeks, or months later. Drug tests were randomized, and probationers were forced to call in to find out if they would be tested that day. (Parolees were ordered into drug treatment only if they were among the small minority that simply couldn't stop using after multiple violations.) So not only were violators subject to certain punishment -- their short-term risk analysis now worked against the tendency to violate.

Alm's approach also conserved resources. The lighter punishment meant that more punishment was available (after all, short jail stays require fewer resources than long-term incarceration). HOPE substituted certainty for severity, which Kleiman says is key to deterring future crimes -- and could provide the basis for future enforcement and deterrence strategies as well. After all, the most effective punishment is the one you never have to use.

The program has its roots in graduated sanctions, but HOPE's narrow focus was a major innovation. Alm was throwing darts at the wall where other states were throwing spaghetti. His results were impossible to ignore: The overall rate of missed and failed drug tests dropped by more than 80 percent, and the missed-appointment rate fell from 13.3 percent to 2.6 percent. Despite the fact that offenders admitted to the program were more prone to violating, the trend continued as the program expanded.

In states like New Jersey, where graduated-sanctions programs resemble HOPE but are not quite as steady or strict, the results haven't been as dramatic. Still, New Jersey has been reducing its prison population -- from about 27,000 five years ago to about 22,000 now -- at a time when state prisons are averaging a 1.7 percent growth rate a year. The state was able to close Camden's Riverfront State Prison in June. And the crime rate has declined overall since 2001. Says Lenny Ward, director of community programs for the New Jersey State Parole Board, "We're doing something right."

The question, looking at HOPE, is whether New Jersey -- and other states -- could be doing something even better.

***

The optimism surrounding HOPE isn't just about numbers -- it's about the program's bipartisan appeal. HOPE retains the use of punishment as a deterrent -- it is "tough" enough for conservatives -- while shrinking the prison system and mitigating the adverse social effects of mass incarceration -- which is what liberals want. It seems perfectly tailored for an era of Obama-style minimalist liberalism (or, as the administration likes to call it, "pragmatism"), taking into account critiques of bureaucracy while reaffirming a steadfast commitment to using government to effectively reduce social suffering.

Even Wilson, the godfather of "tough on crime," has endorsed Kleiman's book. "This is very good. It's not quite as good as Einstein predicting the shift of light behind Mars ... but it's a step in the right direction," Wilson said while appearing alongside Kleiman on a panel at the American Enterprise Institute (AEI) in October. Though Wilson still defended "tough on crime," he acknowledged that the ideological landscape has shifted. When Kleiman pointed out that the rate of imprisonment of black men in the U.S. exceeds that of the Soviet Union during the height of the Gulag, the audience at this conservative think tank gave an audible gasp. Even among conservatives, there is a growing recognition that something is deeply wrong with a modern industrialized nation imprisoning such a large percentage of its population.

Meanwhile, crime is low enough that it is no longer the politically radioactive issue it once was. In June, when Sen. Jim Webb of Virginia introduced legislation establishing a criminal--justice commission, he declared that "America's criminal-justice system is broken" without inciting a backlash or being dubbed "soft on crime." Webb's commission is the best hope for wide-ranging reform -- though that depends ultimately on which school of thought on criminal-justice prevails.

Glenn Loury, an economics professor at Brown University who has written extensively on the issue of over-incarceration, says the attention Webb got merely for proposing a commission to study the issue shows how warped the politics of criminal justice are. "He's now a candidate for a profile in courage because he's willing to talk to the American people about their punishment regime that we've constructed here in a way that casts a critical eye on it," Loury says. Ironically, it is precisely because crime has decreased in salience as a political issue that reform is possible.

The tightening crunch on state budgets doesn't hurt, either. Certainly Congressman Adam Schiff, a Democrat from California, has taken notice of the issue. In his home state, prisons are a humanitarian crisis -- overcrowding is so bad that a federal judicial panel ordered California to reduce its 160,000-person prison population by more than 40,000 inmates over the next two years in order to relieve pressure on a system built to hold only 84,000 prisoners. A former federal prosecutor, Schiff joined with Republican Ted Poe (also a former prosecutor) to introduce new legislation in the House that would establish a grant program for states willing to implement their own version of HOPE. By Kleiman's estimate, if states adhere strictly to HOPE-style reforms, we could cut crime and the prison population in half in 10 years.

"We don't have to be tough on crime; we have to be smart on crime," Schiff says, "or we'll be bankrupt on crime."

That view seems to resonate with the Obama administration. The White House budget for 2010 set aside more than $100 million for re-entry programs, piggybacking off the Second Chance Act (signed by George W. Bush in 2008), which devoted significant grant funding to programs dedicated to reducing recidivism. In 2007, the National Institute of Justice, the research arm of the Justice Department, chose Angela Hawken, a Pepperdine University professor and Kleiman's former colleague, to conduct a randomized controlled trial of a scaled-up HOPE program in Hawaii. Hawken says her independent study replicated HOPE's results. Since then, the NIJ has begun developing plans to test HOPE-style programs in two other states. The Obama administration's drug czar, Kerlikowske, has even expressed interest in the program.

As the question of policy shifts to the federal level, the "non-ideological" appeal of these methods will be put to the test. In the past, conservatives concerned about the fiscal impact of mass incarceration could be convinced to support state-level and local reform. In Kansas, Secretary of Corrections Roger Werholtz overhauled the parole system, reducing the prison population and saving the state $80 million. He had the strong support of Kansas' ultraconservative Sen. Sam Brownback, who declared, "I want to see recidivism cut in half in the next five years, and I want to see it start in Kansas."

But when it comes to national "smart on crime" initiatives, conservative politicians may not be as supportive. With a hyper-partisan GOP twisting at the whims of Glenn Beck and the tea party movement, it's easy to see how criminal-justice reform could become the next source of paranoid right-wing controversy. That's without considering the already formidable obstacle course of corrections-industry interests -- from prison-guard unions to bail bondsmen to private prison corporations -- who are invested in mass incarceration as a business model. Washington's resistance to change will work in their favor.

There is also the sheer vastness of the problem. By design, the minimalist approach to crime seeks to control behavior -- it avoids grappling with the damage done to urban communities by the drug trade and its attempted remedy, incarceration. "A normalization is occurring in these communities, particularly for the young men who are going to see their future lives modeled by those who are coming back," Loury says. "So when you find in these communities a culture of violence, of dysfunction, amongst these very people, that's not just something that came out of the air or was intrinsic to these communities. ... The prison is deeply implicated in the ghetto. And vice versa."

David Kennedy, director of the Center for Crime Prevention and Control at John Jay College, goes even further. "We have a toxic racial conflict which is driven by our law-enforcement response, the community's response to that response, and the outside world's response to that response," Kennedy says. When law enforcement is seen as the enemy, he argues, the "stop snitching" movement is nothing more than "principled disengagement."

HOPE seeks to prevent parolees from re-offending and alleviate some of the violence associated with the drug trade, but it doesn't attempt to make formerly incarcerated people more employable or better parents. The concern, then, is that even if these techniques are somewhat successful in reducing crime and recidivism, they won't really fix the problem. Even Peter Reuter, a crime-policy expert at the University of Maryland and self-described "Kleiman booster," says Kleiman's belief that crime could be cut in half in 10 years is overly optimistic. "I wouldn't go that far," Reuter says.

Joe Trabucco, director of a residential assessment center in Newark, recognizes that the criminal-justice system isn't just battling behavior; it's battling the very culture of urban blight. Trabucco runs up against this wall with many of the parolees he interacts with on a daily basis. "They have their priests, they have their commandments, they have their oaths. How do you tell them to go back on that oath? It's like telling a Jew to be Catholic," Trabucco says. He adds that he once thought the election of Barack Obama might make a difference to offenders -- but he's changed his mind. "To them, he's just another guy in the legit world; doesn't matter what color he is."

At the street level, the success of New Jersey's graduated-sanctions program is sometimes hard to see. Parole officer Thawra Naser grew up in Paterson but left "when it got crazy." As the officer who handles Haines' case, she's become intimately familiar with the city's crowded corners and feuding sects. While the graduated-sanctions program's overall numbers are impressive, New Jersey's parole officers have yet to see much of a change in the state's most volatile urban centers. "There are some cases, you're happy to see people aren't in trouble," Naser says. "But you also see plenty of faces that you've seen before."

Naser has had a hard time getting Haines to take advantage of the ankle bracelet to go back to school or get a legitimate job -- even though he says he wants to go straight. Sitting on the couch with his hands clasped together and his eyes staring at the floor, he says he sometimes thinks about owning a strip club, but he hasn't actually taken any steps in that direction. "At least it's not a criminal enterprise," one parole official says dryly.

Even if HOPE?style programs work on a national scale, some worry that they will become yet another method of simply "managing" the most disadvantaged in American society. One of Kleiman's arguments against mass incarceration is that when imprisonment is ubiquitous, the stigma of incarceration is removed. The position-monitoring bracelet, he hypothesizes, won't grant offenders the kind of "street cred" they get from a prison stint. With Haines that seems to be the case -- the bracelet hasn't earned him respect; it's made him someone to avoid.

But that doesn't seem to be the case everywhere. At the AEI event featuring Wilson and Kleiman, a parole officer from Washington, D.C., gave his own view of how position-monitoring has worked in the District. "The vast majority of our offenders are beginning to get very clever with the bracelet ... they even know how to take it off," he said. "It's also become a rite of passage in the communities. ... Now you have a bracelet on your ankle walking around in your communities, and you've become somebody in the world of crime."

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