The jail crisis – an opportunity

March 7th, 2010 by Howard Zehr in Critical Issues

Like many communities, my own is facing a crisis in jail capacity resulting in pressures to build a larger institution. I was recently asked to serve on a local symposium panel about this issue but the report in the local paper did not accurately represent my emphasis. So I will lay it out and amplify it a bit here.

This is by no means a new issue; we were wrestling with similar issues in the 1980s. I have learned two fundamental things over those years:

First, our systems are basically capacity-driven, and that is especially true for jails and prisons. I remember some earlier research that predicted that if you build a new jail, it will be filled in two or three years and above capacity in five. To use a quote, I think from the movie Field of Dreams, “If you build it, they will come.”

Second, simply providing alternative sanctions will not reduce jail and prison populations. Alternatives expand the capacity of the system overall, allowing it to handle more offenders (leading to more expenditures and what many call “net-widening”), but by itself this does not reduce the use of incarceration.

What is fundamental to the size of jails and prisons is the nature and structure of decision-making within the system. If we are serious about the issue, we must analyze the following for our communities:

1) Who makes the key decisions about arrest, bringing charges, plea agreements, sentencing options? A starting point would be an accurate flow chart identifying each of these decision points and actors making the decisions in the justice system.

2) To what extent are these actors accountable for their decisions, and to whom? In fact, accountability is often quite diffuse or non-existent. Other than following broad legislative guidelines, for example, elected prosecutors or judges are primarily accountable to an electorate every four years. Often they can make decisions without great regard for the resulting impacts on the system overall.

I once wrote a short article about this that was turned into a poster by the Maine Council of Churches. I had forgotten it until someone cleaning an office found a framed version of it that now sits behind my office door. The poster depicts the system as a pipe connecting a lake to a small bucket. The pipe is interrupted by several valves, each of which is enclosed in a small building without windows.

The water in the lake represents behavior that can be treated as criminal; the bucket, which is frequently overflowing, represents the local jail, usually presided over by the sheriff. In each of the little shanties are actors turning valves – police, prosecutor, probation, judges – without a clear feedback system or direct accountability for their decisions. The bucket fills up, overflows, and the sheriff is left to do what he or she can with the mess. Only occasionally does the overflow become significant enough to wet the feet of those in the shanties. Meanwhile, the cry arises for a larger bucket.

3) Equally important are the goals of decision-making. What are we as a community trying to accomplish in these decisions? And what are the key actors trying to accomplish? These two sets of goals may overlap, but not entirely. Some analysts have argued that to understand our criminal justice “system” (many argue it is structurally a non-system) it is useful to employ game theory. The actors in each of the buildings I described above has a set of spoken and unspoken rules and goals and they only partially overlap with those in the other “buildings.”

Beyond the personal, career and institutional goals, however, what are we trying to accomplish with our justice system? As I have argued many times, if our goal is primarily to remove and punish those who break our laws, to make sure they get what they “deserve,” then our jails and prisons will be full and victims’ needs and wishes will continue to be sidelined.

At the symposium I provided two examples of communities that adopted imaginative approaches to address these issues. They were not necessarily full restorative justice options – indeed, it is unlikely that either had significant awareness of restorative justice when they began. But both resulted in lowered use of jails and prisons, at minimum, and the second model significantly reduced court work workloads and even crime rates.

In the early 1980s Genesee County, New York, was facing a jail crisis much like the one in my own community. One of the candidates for sheriff – Doug Call – argued that the county would not have to build a new facility if it offered options that addressed the issues I have mentioned above. He won and introduced a variety of new programs including a process for determining outcomes that was victim-centered, sought to hold offenders more directly accountable for their actions and responsibilities, was much more collaborative among all the stakeholders and actors including prosecution, defense, victims and even offenders. (The department has a logo that is reminiscent of a beer logo: “Genesee Justice – Crafted with Pride in New York State.” The department says its goals are law, order and peace.) Last I heard they had not only avoided building a new jail but were renting out space to neighboring counties.

In the 1980s New Zealand faced a crisis in juvenile justice (they call it youth justice). Incarceration rates for youth were some of the highest in the world and what we today call “disproportionate minority contact” (DMC) was dramatic. After several attempts at reform, New Zealand radically changed the nature and structure of decision-making. Treating court as a scarce resource, they created a system for serious youth offending that placed a “family group conference” at the center of decision-making. This involves a process that includes victims, offenders and their family members, the police, an especially trained lawyer, and sometimes others in a collaborative process to decide the outcomes. Outcomes are to be arrived at by consensus and to address responsibilities to the victim as well as the responsibilities and needs of the person who had offended. The result: a huge drop in incarceration as well as reduced court workloads.  (For more information see The Little Book of Family Group Conferences, New Zealand Style.)

Contrary to what our newspaper reported, at our local symposium I did not make a case for restorative justice; indeed, I think I hardly mentioned the term. The argument that I tried to make was that no matter what our concept of justice, the only way forward is to create more clarity and transparency about our decision-making and more accountability for our decisions. Above all, our communities need more dialogue about what we want to accomplish with justice and how we can best achieve these goals.

My overarching dream is that restorative justice, with its focus on stakeholder needs and obligations, and its emphasis on dialogue, might serve as a catalyst for such dialogues. Perhaps the jail crisis can be an opportunity to explore these issues.