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.
[T]he first rule of medicine is “Do no harm.” Should this not be the first rule of government as well? When does governmental overreach become not merely an irritant but seriously harmful to individuals and communities?
The American Law Institute (ALI) has been working for several years on a project to propose revisions to the Model Penal Code. (The Model Penal Code is simply a document developed by the institute to stimulate and help the states to update and standardize their own criminal laws.) In the 2016 draft about sentencing, the authors write, “One of the most powerful insights gained over the years of the Model Penal Code: Sentencing project is that it is distressingly easy for criminal sanctions to do more harm than good.” [Italics added.] Proposed changes to the code go on to say that all decision-makers should “avoid the use of sanctions that increase the likelihood offenders will engage in future criminal conduct.”
Does it make sense to require someone who has no money, who was homeless and jobless before being arrested, to find a job and a home — now that he has all the same obstacles plus an arrest record? And to put him in jail if he fails?
This would seem to be obvious; why would a system knowingly do something that makes people worse off, more likely to bring harm to themselves or others? And yet, we do it all the time. As the ALI writers point out, decades of research have documented that incarceration is in itself criminogenic (leading to more crime, i.e. “crime school”). At this point, few people would disagree that in the U.S. we incarcerate far too many people and for much too long — which means we’re knowingly perpetuating a system that leads to more crime. (And this is to say nothing of our use of solitary confinement or the incarceration of people with mental illness.) The public increasingly understands that experiences in incarcerative settings are often neither rehabilitative nor healing but re-traumatizing. Perhaps less well known is that the supposedly less restrictive sentences in the community, such as probation, furlough or any kind of “supervised release,” can be equally destructive. As the ALI writers note, “While some rehabilitative programs administered in the community work well to reduce offender recidivism, some programs have no good effects and others make participants more likely to offend.”
Do we know which programs are which? Yes. What makes people more likely to offend — that is, what harms rather than helps people — are community sanctions that hinder rather than support re-integration into a community. Does it make sense to require someone who has no money, who was homeless and jobless before being arrested, to find a job and a home — now that he has all the same obstacles plus an arrest record? And to put him in jail if he fails? How can someone with no car and no available public transportation make it to programming three times a week, let alone hold a job at the same time? This, too, can land someone back in jail. How does someone who lives on the margins succeed when she has to provide an hour-by-hour schedule of her projected whereabouts two weeks in advance — and call her PO with any deviation, like a trip to the grocery store? Could any of us live this way? Having to wear a GPS monitor on your ankle, experiencing humiliating and random intrusions in your workplace for drug testing or unexpected home visits at any time — all these are done in the name of “public safety.” But it turns out public safety is not well served after all.
Nor, by the way, is the public purse. When an inmate chooses to “max out,” spending additional months, even years, behind bars rather than try to live under conditions far more restrictive and intrusive than those controlling the lives of the rest of us, we all pay. Prison is expensive — about $57,000 a year for men and $75,000 for women. But prisoners sometimes make this choice because the conditions set on their behavior “under supervision” are so onerous. Few of us could survive that level of control or scrutiny without making a mistake, let alone maintain our dignity and equanimity in the process.
This is the definition of government overreach — and it’s harmful. The writers of the ALI’s most recent draft write that the principle of “do no harm” is “obvious and consensual.” If that is indeed the case, there is no excuse for our not taking immediate action. There is much we can do. For example, Vermont is the only state left with furlough — that status of supervised release after one has reached one’s minimum sentence. Let’s set parole as the default at the minimum release date, and stop overly interfering in people’s lives. That would be a good start. Let’s make sure above all that government does no harm in our name.
