“Never Again” Laws

Public outcries and politicians looking for gut-wrenching issues upon which they can ride a fast horse to reelection are usually a bad mix. Easy to get the laws passed, but often difficult to undo the longer-term damage of sending too many people to “graduate-level crime schools” – we call them “penitentiaries” or “ prisons,” accelerating gang membership, which long survives the sentences of those eventually released, and providing thousands of hours of free instruction is scamming, stealing, dealing, hurting and killing. Angry and bitter incarcerated prisoners, their ability to get post-prison solid employment decimated enough by a bad economy is all but gone, don’t make for a safer society. That the United States has about 5% of the earth’s population and one quarter of the world’s prison population should tell you we a re most certainly doing something wrong.

With the cost of prison running between $30,000 and $45,000 a year per prisoner, and with state and federal budgets strained beyond the breaking point, the cost of sending people behind bars for longer and often unwarranted periods is no longer a tolerable burden. States are busy reexamining the definition of “habitual criminals” under the oh-so-popular-when-they-were-passed “three strikes and you’re out” statutes, where a relatively petty property crime often triggered the same result as an armed robbery – a third strike was a third strike. Socking the taxpayers with ever-increasing costs associated with incarceration was fine in prosperous times, but under a tight economic reality, we can no longer afford the difference.

Pre-2007, when the U.S. Supreme Court restored some sentencing discretion to federal judges, conviction of possessing 5 grams of crack cocaine were the same as possessing 500 grams of cocaine in its pure form, an anomaly that Congress is addressing as it considers revising its statutes. People with five grams of crack were getting ten year mandatory sentences for first offenses, while criminals with 495 grams of cocaine were getting vastly shorter penalties.

Sexual predator laws – especially involving children – are almost always automatic with any legislature. Take the name of the victim – Megan, Jessica, Amber, etc. – add a horrific sexually-linked criminal activity, and there isn’t a legislator worse his/her salt that could ever vote against the result. Common sense told legislators and voters alike that keeping these predators from living anywhere near where children congregate was absolutely essential.

Jessica Lunsford was a 9-year-old Florida girl who was raped and murdered 150 yards from her home. Deny the opportunity, the reasonable assumption would be a decrease in these heinous crimes. Jessica’s Law was born, carried across state legislatures like a legal tsunami. But no one actually asked if the underlying assumption – a statutorily mandated distance between convicted sex offenders’ homes and children – actually made any difference. No one really questioned how these statutes could be enforced, what the consequences might be and what the associated costs were likely to approach.

The March 14^th Los Angeles Times addressed these concerns: “A January report by the [California’s] Sexual Offender Management Board portrayed the effect of Jessica's Law as difficult to determine at best, and wrong-headed at worst… The requirement that offenders live away from children has required many to stay away from their own relatives or to become homeless -- both instances of instability that put them "at increased risk of re-offense,’ the report said… The report also challenged the premise of the law's residency restrictions…‘The hypothesis that sex offenders who live in close proximity to schools, parks and other places children congregate have an increased likelihood of sexually re-offending remains unsupported by research,’ the report said. ‘On the contrary . . . there is alm ost no correlation between sex offenders living near restricted areas and where they commit their offenses.’”

Clearly, we need solid statutes and appropriate penalties for criminal activity, but these cannot be born where legislatures are riding populist emotional trends with no real information upon which to base their “convictions.” Leadership is precisely that: leading… not following a momentarily popular anger with a statute that not only fails to fix the problem, but leads the population into a false sense of safety, satisfies a need for vengeance but presses taxpayer burdens well beyond any possible justification.

The majority of American criminal activity is drug-related. The majority of those in prison can link their incarceration directly to narcotics, yet drugs proliferate more than ever, gang-related turf wars and killings are almost all related to control of drug trafficking and tough laws with long sentences, for users and dealers alike, have done little to restore the peace and stability that the statutes were intended to create. These are thugs and violent criminals with little concern for “civilian” lives, but the tough laws surrounding drug use have made their “trade” economically viable. They are paid not so much for the distribution of drugs but for their willingness to defy the law at any cost.

In the end, regardless of the criminal statute or the anticipated sanctions, there needs to be a balance between the harm to society, the cost of prosecution and incarceration, and our willingness to pay the hard dollar cost for our decisions. It would seem that in harsh economic times, it might well be worthwhile if our legislatures actually considered more cost-effective alternatives to ever-increasing incarceration.

I’m Peter Dekom, and common sense is elusive when you are angry.