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What do alternative sanctions mean *now*?

Back when I was in jr high school & an “assistant” professor at the University of Chicago Law School (where I had an office between Larry Lessig’s & Elena Kagan’s on same floor of the library as Tracey Meares & Cass Sunstein  & where Liz Chaney was in the first group of 1st yr law students I taught, & a kid named Barrack Obama, who was insanely running for Congress against an unbeatable incumbent, taught those same students about the Equal Protection Clause of the Constitution), I wrote an article entitled “What Do Alternative Sanctions Mean?”

The article had a section offering a qualified, pragmatic defense of “shaming” penalties—conditions of probation, really, that involved engaging in or submitting to some ritualistic and frankly self-debasing publicization of one’s offense: taking out a newspaper advertisement proclaiming “I sold drugs with my kids in the car,” or displaying a recognizable “DUI” marker on one’s license plate, or standing in front of a store with a sign announcing that one had been caught shoplifting, or having to prepare & circulate to other registered lobbying a long “how ‘not to’ ” manual on compliance with Ethics in Govt Act regulations illustrated with first-hand accounts of the numerous violations one had committed.

Surprisingly, that proposal got a fair amount of attention. George Will wrote a column, and the NY Times an op-ed about it (they both liked the idea!). I got to be on the “Today Show” (woo hoo!) & be interviewed by Bryant Gumbel (it was after he retired as host but he was filling in for I can’t remember who).  All kinds of people—from earnest judges looking for something to do besides send people to jail; to other academics wanting to show I was wrong (some for genuinely interesting reasons); to lazy journalist recycling the same story that 15 others had already written; to publicity-mad megalomaniacs using their own personal tragedies w/ abducted children as the occasion for grabbing attention as the organizers of mindless national movements of one sort of or another; to “popular book” publishers—kept wanting to talk about the idea, and necessarily wanted me to keep talking about it.

I got bored quickly & moved on (more or less).

Maybe it was the desire to put as much distance between myself and the intellectual sterility of the spectacle, though, that explains how I missed something that looks like something truly amazing: the dissipation of the cultural meanings that have historically underwritten the dominance of imprisonment as a form of punishment in our criminal justice system.

That’s what the article—What Do Alternative Sanctions Mean?—was actually about.

That is, it was about was why imprisonment persisted as a penalty for so many nonviolent (or relatively nonviolent) offenders who criminal justice experts all agreed needn’t be incarcerated.

For these offenders—property misappropriators, drunk drivers, petty drug dealers and users, white collar offenders, and others, who in total seemed to make up about 50% of the population of people behind bars—“alternative sanctions” such as fines and community service would be just as effective in protecting the community & cost a whole lot less

There was compelling empirical data—expert consensus, even--to back this claim up. And the experts presenting this evidence included not just wonky public policy analysts but an ideologically diverse array of advocates, including civil-libertarian groups concerned with the needless destruction of liberty and conservative, economic ones protesting the wasteful expenditure of resources.

But the public consistently rejected what the experts had to say. How frustrating! The obvious remedy was always another article, another book presenting all the same data, and then adding to it, in the expectation/hope that eventually the public would “get the message” or “understand” the math etc & fall into line with the obviously rational solution.

My thesis was that the expert account was missing something: the importance of social meanings.

The public, I argued, expects punishments not just to protect them from harm, or to visit some quantum of “disutility” on offenders, but to express an appropriate attitude toward.

Drawing on the work of philosophers Joel Feinberg & Jean Hampton, and fortifying the account with one or another source in psychology and sociology and with diverse casual forms of real-world evidence (the account was entirely synthetic, an exercise in pragmatic conjecture identified as such & intended to invite more rigorous empirical testing, a modest amount of which has been done), I argued that criminal wrongs just were public acts that understood to be manifesting false claims about the value of persons, goods, and states of affairs relative to the interests or goals of the offender.

In the face of such actions, it was incumbent on anyone committed to a true or morally appropriate valuation of those same things to manifest the same by doing something that would unambiguously convey that valuation.

That’s what punishment is for.

That’s what punishment is: a setback of some kind, imposed by an agent authorized to speak for the political community, that expresses condemnation of the offender and thereby expresses the community’s recognition of the true worth of the person, good, or other interest that the wrongdoer’s own actions have denied.

The problem with the conventional alternative sanctions, I argued, was that they didn’t express condemnation—or express it as clearly and unequivocally as imprisonment.

A fine seems to attach a price tag to a criminal act.  And as much as we might think that charging a high price makes a consumer suffer, we don’t condemn someone for buying what we are willing to sell!

Community service, I argued, conveys similarly dissonant meanings. We don’t ordinarily condemn people who repair dilapidated low-income housing, offer free medical service for uninsured people suffering from diseases like AIDS, help to educate or otherwise enrich the lives of mentally challenged citizens, and the like; we admire them for it! 

Accordingly, when the state purports to “punish” an embezzler, or a sex offender, or toxic waste dumper by ordering him to perform such services, the public doesn’t understand the law as sincerely condemning him. It doesn’t understand those sorts of “alternative sanctions” as “punishments at all.”

Imprisonment, in contrast, clearly expresses condemnation.  Because of the cultural significance of liberty as a symbol of the respect that that the state is obliged to show for autonomous, reasoning individuals, taking it away from someone unambiguously conveys the attitude that someone has done something that has forfeited his or her entitled to be respected by other free, reasoning people.

It just doesn’t matter whether fines and community service “deter” just as well, or make offenders “suffer” just as much, as do short terms of imprisonment. They are unacceptable substitutes for imprisonment because they don’t convey the meaning that is essential to punishment.

If that’s the problem with the conventional alternative sanctions, I argued, then the solution is to find alternative alternatives that avoid the needless destruction of liberty and social wealth associated with imprisonment but nevertheless retain the power of imprisonment to express collective moral condemnation.

That’s where I said—why not take a look at shaming sanctions?

The story goes on. But like I said, it is boring. To me anyway.

But what’s not boring—what’s quite interesting—is that something seems to have changed.

Last week Attorney General Eric Holder delivered a major address denouncing the wastefulness—the moral mindlessness—of mass incarceration of petty drug offenders and others who needn’t be incapacitated for purposes of deterrence or protection of public safety.

He announced a series of discretionary federal law-enforcement policies—including ones relating to prosecutorial charging decisions, and the posture of the federal government in the consideration of parole determinations—that are all geared to steering the law away from imprisoning nonviolent offenders and reducing the time any of them end up serving.

What’s more, he indicated his intention to promote wider reliance on “the use of diversion programs – such as drug treatment and community service initiatives – that can serve as effective alternatives to incarceration.” 

None of this is new, of course. This is the very stance and very set of policies that criminal justice experts have been pushing, and the same grounds on which they have been pushing them, for decades without success.

What is startlingly different is that there seems to be genuine, political consensus that that is what to do.

The primary evidence of the consensus is not the rapturous applause with which Holder’s proposal has been greeted.

Rather it is the large, collective yawn.  Yes, of course.  Do that.  We have more important things to fight about—like climate change, and assault-rifle bans!

Actually, there is serious bi-partisan support by very serious, seriously informed and intelligent advocates for reform of criminal justice. David Dagan and Steven Teles write insightfully about it in the their Washington Monthly article The Conservative War on Prisons.

There’s a really cool, really consequential, really interesting movement afoot, or seems to be.

And although I’m sure it’s not as simple as this, it is in some sense true that “it just happened.”  The serious, important things that made this transformation take place were very low profile. 

Many people who I’m sure recognize how fundamentally different things look now didn’t actually see the things that happened that brought it about.

Someone will say, “Oh, it was the economic crisis.”

Oh, please.  It has always been a waste of money to put people in prisons. There has always been intense competition over how limited political resources were going to be spent.  If money were what mattered, this would have happened already—decades ago.

What’s more, ending the mindlessness of needlessly incarcerating thousands upon thousands of people who needn’t be imprisoned for public safety won’t make even a tiny dimple, much less a dent, in the massive public debt! 

Federal prison expenditures made up less than 0.1% (i.e., 0.001) of the FY13 budget.

State expenditures make up larger proportions of their budgets, but in most it is still in the order of 2-3%. Smart alternative sanctions would reduce the size of the prison population—maybe even by 50%. But that wouldn’t reduce the cost of operating prisons by only a fraction of that amount and would necessarily involve paying the cost of alternatives. 

Cost-savings are motivating part of the demand to reduce reliance on prisons—but only because the meaning of alternatives has changed in a way that makes the cost arguments more persuasive to people now.

BUT . . . have things really changed? It looks like it; but “bipartisan” support for reducing reliance on imprisonment actually existed in the 1970s, too, and was part of what motivated the enactment of the Federal Sentencing Guidelines (seriously; the mandatory minima were all added after enactment of the Guidelines).  It’s the public’s views that matter, and we shouldn’t confuse sensible things that politicians might be able to do during intervals the public isn’t paying attention to changes in public opinion.  Indeed, what they do then often either gets the public’s attention or is used strategically to inflame and divide. We’ll see.

But assuming this is real, the “meaning transformation” of alternatives to imprisonment is an important case study waiting to be constructed.

The collision between policy-relevant facts and contested social meanings is one of the most potent barriers that exists to enlightened democratic policymaking.  That’s the pathology that drives the mindless, wasteful thrashing on climate change—and many other issues.

Figuring out how to avoid instances of this pathology, I’m convinced, is the  most important task for the science of science of science communication.

But the second most is to figure out how to treat it when it has settled in.  How can policy-relevant facts that become entangled with antagonistic cultural meanings get disentangled—so that we can be confident that democratic deliberations will be informed by valid, decision-relevant science?

If that has happened here—even if more or less by accident—then we should figure out why, both so we enlarge our knowledge of how the social world works and so we can enlarge our power to manage it through democratic means in a way that enhances our collective welfare.

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Reader Comments (3)

I get the sense (based on little evidence, just conversation and the new state-level marijuana legalization ballot measures) that the meaning of drug crimes has changed as much if not more than the meaning of incarceration and alternative sanctions. The war on drugs is still polarizing (as your data shows, I believe), but it may have a fair bit less bite than it did 20 years ago. To the extent that street-level, non-violent drug dealers are seen less as a scourge and more as people in difficult circumstances trying to get by doing something that maybe-should-be-kind-of-sort-of-legal, we'll be willing to punish them in ways that express less moral condemnation. That change would be just as interesting -- and mysterious, and worth examining -- as a consensus on prisons themselves, I think, and the two are, of course, not mutually exclusive.

August 22, 2013 | Unregistered CommenterMW

I think that all forms of sentencing come loaded with considerable bias, but in particular alternative sentencing seems to expand the tribal notions that people like us or with economic stature greater than our own can be chastised by embarrassment, but those "beneath" us require more severe punishment.
Plus, the tattered nature of our mental health support systems mean that there are many people that we simply do not know what to do with. People who have the wherewithal to do whatever it is they are doing behind expensive closed doors get a pass.

Do we really think that alternative sentencing could contain Wall Street Banksters? But even that would be a good start:
"It has long been the practice of the SEC to allow immensely wealthy investment banks and hedge-fund managers, among others, to settle charges of wrongdoing while “neither admitting nor denying” that they have done anything wrong."

As a small scale example, in my own community, as an engaged civic minded citizen, I participated in a downtown community engagement process called "My Downtown". The results of this process demonstrate that the biggest wish was for more park and plaza space downtown. One quote is "One thing I miss is more places to sit and rest and just people watch". The city is spending good money to figure this stuff out.

Meanwhile the police department is on the watch for "dangerous criminals", for example:
"For one of the first arrests of the afternoon, officers booked Zachary "Gonzo" Stilts, 22, a felon caught sitting outside a café on Railroad Avenue - the 12th time the cops had contacted him for the same infraction."
Read more here:

Gonzo had an interesting assortment of things in his backpack. As do I actually. Even though my pharmaceutical collection is prescription based, I'd rather not have my backpack contents searched to shop downtown. Fortunately for me, this is "My Downtown", not Gonzo's.

August 22, 2013 | Unregistered CommenterGaythia Weis

Exhibit ("scarlet letter of the internet") A:

August 27, 2013 | Unregistered CommenterGaythia Weis

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