Rethinking criminal punishment: UT professor's new book

It's time to change the way that criminals are punished in the American criminal justice system, argues William R. Kelly in his latest book, "From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice."

"For decades, we've been asking, 'What is the crime committed, and how much punishment do they deserve?'" said Kelly in a recent interview. "We're saying, ask a different question: 'How do we keep them from coming back?'"

This is the third book authored by Kelly, a University of Texas professor and director of the university's Center for Criminology and Criminal Justice Research, and his first collaboration. Contributing authors were U.S. District Judge Robert Pitman, a former U.S. Attorney, and Dr. William Streusand, a psychiatrist.

In the book, the trio gives evidence of what Kelly calls the "clear, understandable relationship" between criminality and factors like mental health, substance abuse, intellectual deficits and neurocognitive impairment. These issues are largely unaddressed in the current punishment process, but Kelly says that understanding them could keep people from committing new crimes.

"Some people need to be punished, but many don't," Kelly said. "Our proposal is for an independent panel of experts to screen and assess offenders as they come into the system and make determinations in part based on their risk of re-offending."

The closest existing example of the concept is diversion courts such as mental health or drug courts, which require lots of resources and typically have small caseloads. Kelly said it's also not unusual for criminals to have more than one problem - mental health and substance abuse, for example - and his concept would address them all.

 Kelly said the book is conceptual and "big-picture stuff," meant for professional stakeholders involved in the criminal justice system. "It's almost like we're presenting a challenge: Here is what the evidence says is the way to do things. Who's going to get on board?"

What follows is excerpted from Kelly's latest book.

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Excerpt From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice,
Rowman and Littlefield, June 2017

William R. Kelly

Robert Pitman

William Streusand

Since the early 1970s, American criminal justice policy has had a nearly singular focus—the relentless pursuit of punishment. From Congress to state legislatures to local city and county governments, the mission was clear and deliberate.

The problem is that despite all the appeal, logic, and common sense, punishment doesn’t work. How could we have been so wrong? Why has severe punishment not done the trick? The answer is quite simple: The vast majority of criminal offenders have multiple disorders, deficits, impairments, and conditions that are fundamentally related to their criminal behavior, which punishment does nothing to change. These are not excuses. They are reasons for criminality. How does incarceration fix bipolar disorder or executive dysfunction due to traumatic brain injury? How does a stint in jail solve addiction to drugs or raise one’s IQ? Most of us have no idea what growing up in an environment of poverty and violence is like or what impacts it can have on cognitive development, mental health, substance abuse, and engaging in risky behavior. However, there is nothing in tough or attempts to address them. We have put nearly all of our eggs in the punishment basket. But the evidence is clear—that is the wrong basket.

All told, tough-on-crime policies and the war on drugs have drained roughly $2 trillion of public money. Recent research puts the annual price tag of crime, including direct criminal justice costs as well as a variety of collateral costs, at $1 trillion. The recidivism rate over this period has hovered north of 65 percent. We suggest it is impossible to conclude that this is a reasonable return on investment.

One of the fundamental points of departure we propose is that we are asking the wrong questions. What we currently do leads to the reflexive question of how much punishment. As we consider the variety of mental health, substance abuse, and intellectual and neurocognitive disorders, impairments, and deficits that many justice-involved offenders have, we hope it will become clear that we need to rethink how we go about the business of criminal justice, of dealing with people who commit bad acts but do so at least in part because of psychiatric, intellectual, and neurocognitive disorders and impairments. We should ask a different question—what will it take to reduce the likelihood that this individual will reoffend?

We are not proposing a massive get-out-of-jail-free program. What we know is that criminal prosecution and punishment is not productive in cases like these. We propose an alternative that focuses less on blameworthiness and more on the severity of any disorders, impairments, and deficits, and that shifts attention away from retribution to recidivism reduction.

There is plenty of blame to go around for our high recidivism rates. Much of it is on the offender. But it doesn’t (and shouldn’t) stop there. It is important that the government (including elected officials, policymakers, prosecutors, judges, and corrections officials, among others) recognizes its role and accepts its share of responsibility for the revolving door of the justice system. We assert that for most eligible cases (individuals with significant mental health and substance use disorders and/or neurocognitive and intellectual deficits and impairments), the best way to reduce the probability of recidivism is by diverting appropriate individuals into community-based programs focused on evidence-based behavioral change coupled with risk management strategies.

We propose that a new, formal diversionary option be added to the criminal justice system, in which the expertise of a variety of professionals be brought to bear both on the identification of individuals appropriate for diversion and on the development and implementation of programs to keep them out of the traditional correctional system in the long run. We propose a system that includes a more formalized sorting process with defined criteria and the involvement of not only prosecutors but also experts in a variety of relevant disciplines. These experts, acting as a team and following an established protocol, would be presented with offenders whose offense conduct and background suggest that they might be candidates for diversion from prosecution. These teams would make assessments early in the process—post-arrest but typically pre-indictment. And they would have the ability to make a recommendation to the prosecuting authority that an appropriate individual be put on a different path from the one that would otherwise lead to incarceration or simply punishment, one that would involve a program of treatment and supervision appropriate to their needs. Likewise, we propose that the programs to which offenders are diverted be interdisciplinary and separately funded from prosecuting authorities to ensure that minimizing recidivism remains at the core of their mission. We maintain there is strong reason to believe that fully funded programs run by experts in the field using evidence-based programs and practices have the prospect of substantially lowering recidivism rates.

We have attempted to imagine a criminal justice system that, as an alternative to the reflexive and expensive incarceration of offenders or punitive supervision and control, effectively addresses some of the underlying drivers of criminal behavior, resulting in fewer people reoffending. The optimal goal of any system of punishment should be the return of an offender to the status of a law-abiding citizen. The evidence is clear that the way to do that for hundreds of thousands of offenders is through concerted, evidence-based rehabilitation. Second, there is an obvious economy to identifying offenders who can be diverted from incarceration at the outset (initial savings) and given the treatment or other means to stay out of prison forever (ultimate savings). To continue to incarcerate hundreds of thousands of nonviolent offenders without asking whether, in light of the role of significant disorders, impairments, and deficits, we might use established expertise and resources to address the issues underlying their behavior, would be both unjust and fiscally imprudent.