Editor’s note: This commentary is by Suzi Wizowaty, who is the executive director of Vermonters for Criminal Justice Reform. She is a former member of the Vermont House of Representatives.This spring, Vermont has the opportunity to take large steps backward or forward in the area of criminal justice. S.9, the well-intended but anti-family “child protection” bill, takes the state backward. H.221, the crime-preventing criminal justice reform bill, moves it ahead.
S.9 rests upon a bit of wishful thinking, a commonly held belief that is simply inaccurate — that punishment prevents crime. It doesn’t. Often when we observe that it doesn’t, we increase penalties. Maybe that will keep people from harming one another. Of course that doesn’t work either. There is a great deal of evidence for this, but if punishment doesn’t deter crime, neither do facts always deter bad public policy. As the Brennan Center for Justice recently pointed out (March 10, 2015), “Penalties do not deter potential offenders” … “because potential offenders typically underestimate the risks of getting caught and the possible punishments.” (In the case of the young adults who statistically commit most crimes, they may be literally “not thinking” because their frontal lobes haven’t yet developed.)
S.9 would allow the state to charge with a felony anyone who has the care of children who knew or should have known the child was in danger. Even if the House removes the “should have known” element, the bill is potentially disastrous. You knew that jungle gym was dangerous. You knew that baby pool had six inches of water in it. You knew your husband was unpredictable when drunk.
Anyone with half an imagination who has ever known an adventurous child or a flawed adult shudders at the possibilities. The state already has a reputation for taking children away from parents needlessly. (We have ranked in the top five states for removal of infants under age 1 for the past four years, according to federal AFCARS statistics. This year, shamefully, we’re on track to lead the country.) Increasing punishments of people who care for children will do nothing to protect children and may bring further harm to children in families that do need help, by frightening more people away from the system.
Punishment is a concept we need to outgrow, replacing it with an understanding of what constitutes real accountability.
Why would we want more money spent on law enforcement, courts, corrections — all the faces of punishment — and less on the social services needed to actually prevent harm to children? S.9 is anti-family.
At the other end of the spectrum is H.221, pieces of which may still succeed this year. H.221 recognizes that current policies that have resulted in the over-incarceration of Vermonters which, in turn, has required sending hundreds of men out of state need to change. The good news here is that the total number of Vermonters behind bars has been dropping, so that whereas a year ago about 475 men were housed in a private, for-profit prison in Kentucky, there are now fewer than 300.
The bad news is that the state is considering closing a Vermont facility — the work camp at Windsor — and sending 100 more men out of state. The current budget passed by House Appropriations pushes the closing out to 2017, but the idea of doing it now is very much alive. Out-of-state prisons cost less because they pay staff less and provide less programming. (Vermont is also on track to reduce significantly the Department of Corrections’ educational offerings, closing the Community High School of Vermont.) But programming and education reduce future crime. And sending men out of state also makes it harder to maintain the family connections that support post-prison success. Reducing programming, education and family contacts is a recipe for more crime. That means greater suffering — and higher costs.
This is where H.221 comes in. H.221 would reduce the number of people in jail and increase public safety, because evidence shows that shorter sentences, i.e. less time in “crime school,” yields better outcomes for both individual and public. H.221 would make an out-of-state contract unnecessary.
How? It requires that conditions of release not restrict otherwise legal behavior, so you can’t be sent back to jail for missing an appointment or having a beer or any other “technical violation.” It limits DOC’s role in approving housing so a potential arrangement can’t be denied because it’s in a “known drug area” (anywhere in the state?) or because the homeowner (Mom, Dad or cousin Joe) is a “bad influence.” It raises the amount of theft that triggers a felony from $900 to $3,000, burdening fewer people with felony convictions that further diminish their life prospects. It says you can’t lose the right to your child solely on the basis of serving time. It supports families.
And that’s what should guide public policy — a desire to strengthen families and communities. Punishment makes things worse. Punishment is a concept we need to outgrow, replacing it with an understanding of what constitutes real accountability. Punishment — as suggested by S.9 and other ills under consideration that create new crimes and increase penalties — harms individuals and families. H.221 moves us toward accountability, by diverting more people from the currently broken system and making greater use of restorative justice, which repairs, rather than harms, relationships and communities.