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Rehabilitation vs. Incarceration

Article Date: Wednesday, June 27, 2012

Written By: the Honorable Judge Theo X. Nixon, Mecklenburg County District Court

In March of 2012,  the results of the Charlotte-Mecklenburg 2012 Criminal Justice System Survey, which was conducted in January and February, were released by Marketwise, a private research firm in the Charlotte area. Some 500 adults in Mecklenburg County were randomly chosen to participate in the twenty-minute survey. The pool chosen was determined by a dual sampling frame that sought to produce a sample that is more representative of the adult population with a margin of error estimated as + 4.5 percentage points at the 95 percent confidence level.
Although the sampling was relatively small, the results are quite revealing. Not surprisingly, over half of the respondents (55 percent) find crime to be a serious problem in Mecklenburg County today, as opposed to not at all serious or extremely serious. The same group was divided as to whether crime in Mecklenburg County has increased, decreased, or remained the same. The revealing aspect of the survey displays a noticeable trend in priorities of how to deal with overall crime in Mecklenburg County.

With the costs of incarceration ever rising, locally, statewide, and nationally, the attitudes reflect a shift in prioritizing how to deal with crime. Of the same individuals surveyed, 35 percent favor prevention, such as youth education programs; another 20 percent favor rehabilitation, such as job training, community service and treatment; another 33 percent favor enforcement, such as more police on the streets; and the minority, 11 percent favor incarceration in jail or prison.

Surprisingly, 80 percent of those surveyed felt that, given the right conditions, many offenders can turn their lives around and become law abiding citizens. While 25 percent approved of having offenders incarcerated, 68 percent wanted their tax dollars spent on funding rehabilitation programs that address offenders’ underlying criminal behavior.

Of course, the questions posed may have been specific, but the survey was an attempt to reflect generalized opinions and responses. Very few people who are connected with the criminal justice system, or members of the public citizenry, would advocate a relaxed approach on crimes of violence, and none is suggested herein. What captures the essence of this survey is the perception of the public as to how to handle non-violent offenders and crime.

Without digressing into a recitation of statistical samples, some responses deserve more discussion, especially as it relates to the broad impact of the survey. Of those surveyed, 81 percent favored diversion from jail and to a location for care or services for the homeless that commit non-violent crimes. Some 91 percent favored diversion from jail to another location for care and services for the mentally ill who commit non-violent offenses. A resounding 85 percent favored rehabilitating non-violent offenders so they don’t commit crimes again.


Dollars And Sense
These are trying times. For the last four years the citizens of Mecklenburg County and the entire state have faced extremely challenging economic difficulties and are dealing with the impact of loss of employment, budget deficits, a sluggish economy, and will continue to do so in the foreseeable future. The economy and jobs continue to occupy our everyday lives, and while the escalating costs of incarceration of offenders is probably not on the average citizen’s agenda, it is a cost we share and it should be considered by all.

The cost of housing an inmate in the Mecklenburg County Jail averages $110 per day; the cost of housing an inmate in the state prison system is approximately $28,000 a year; and in the Federal Bureau of Prisons, approximately $33,000 per year. These figures, of course, are basic housing costs alone and fail to take into consideration the resulting impact on the available workforce, the costs associated with the programs to support the families of those incarcerated, the inability for the ex-convicts to obtain satisfactory employment once released with a criminal record, and the impact on the families that are directly affected by the incarceration.

Consecutive budget cuts by our own State Legislature have resulted in the closing of several state prisons of the North Carolina Department of Corrections (now referred to as Division of Adult Correction) within the last two years. The Legislature has now passed a portion of incarceration responsibilities on to the local governments, and has told Mecklenburg County to “house your own inmates” for certain misdemeanants and felons. With that directive, the financial burden again falls on the citizens of Mecklenburg County and other local municipalities and counties. To compound the dilemma, the Mecklenburg County Court System generates an impressive source of income for the State of North Carolina, but is obligated to send much of that revenue back to the State.

The budget for the judicial branch of government in North Carolina is currently 2.23 percent of the overall State budget, in spite of being one of the three separate and distinct branches of the government. According to the Administrative Office of the Courts, as to fiscal year 2010 to 2011, the unified court system generated $732 million in revenue for the citizens of the State of North Carolina. Of that $732 million, $355 million was disbursed directly to the citizens for restitution for victims, restitution for worthless checks, cash bonds, and civil judgments. $250 million was returned to the State Treasury for the State to spend for whatever purpose they deemed. The court system does not retain any of this revenue. Comparatively, the cost of incarcerating offenders in North Carolina surpasses the entire judicial budget with 5.7 percent of the State budget being consumed just by operating jails and prisons.

In 2011, the State of North Carolina eliminated Drug Treatment Court funding, and essentially shut down these proven treatment alternatives. The Drug Treatment Courts in North Carolina began 17 years ago in Mecklenburg County, and have been successful in addressing addiction issues, reducing recidivism among drug offenders and addicts, reuniting families, re-introducing individuals in the job market, and generally improving the lives of thousands of North Carolina citizens. But for some of the local governing bodies, such as the Mecklenburg County Commission, many of the treatment courts would have failed for lack of funding. Once again, citizens and governing bodies in the larger metropolitan areas understand the clear value of the treatment courts, and have patched together funding for their continued operations. This, however, will be an annual struggle for survival for all treatment courts in this State. Most of these participants can be characterized as non-violent, low level offenders, with potential to become higher level offenders, if not treated.

Research And Evidence – Based Practices And Sentencing
Those that fail to learn from their mistakes are doomed to repeat them. After years of repeatedly incarcerating offenders for non-violent crimes, the system has been complicit in perpetuating the endless cycle of “revolving door justice” among non-violent offenders. The “lock them up and throw away the key” attitudes have been significantly impacted by the ever-increasing costs of building jails and prisons, and supplying the necessary manpower to supervise their operation.

As previously mentioned in this article, seventeen years ago several progressive-minded criminal justice individuals, including judges, district attorneys, public defenders and other court officials created North Carolina’s first treatment courts in Mecklenburg County. The movement generated interest and led to the creation of a number of drug treatment courts, DWI treatment courts, youth treatment courts, family treatment courts and mental health treatment courts. These problem solving courts, along with approximately 2,500 other courts nationally, have been successfully operating since 1989, at the height of the cocaine epidemic in the U.S. Drug Courts represent the coordinated efforts of justice and treatment professionals to actively intervene and break the cycle of substance abuse, addiction, and crime. As an alternative to less effective interventions, drug courts quickly identify substance abusing offenders and place them under ongoing judicial monitoring and community supervision, coupled with effective, long-term treatment services. According to the National Drug Court Institute, funded in part by the White House Office of National Drug Control Policy, the Bureau of Justice Assistance, and the U.S. Department of Justice, recidivism rates were as low as 16.5 percent nationwide one year after offenders were graduated from the drug treatment courts. Considering that 60 percent of federally incarcerated inmates were drug offenders, this offers us some perspective as to how early intervention can address some of the cost, in both lives and resources.

The Justice Management Institute and The Carey Group accepted the challenge by comparing a large number of local and national research-based studies, statistics, experiments and programs, and devised an approach of risk assessment to determine certain needs of non-violent offenders in an attempt to reverse the tide of recidivism. The combined research efforts revealed the obvious need to reduce the reliance on the expensive sanction of incapacitation through incarceration in jail and prison. It also offered proven research and evidence based methods to improve the capacity of the criminal justice system to change offender behavior and reduce recidivism.

The combined effort focused on the question of “why was recidivism so high?” Research revealed that within 3 years of being released from prison, 40 percent of offenders repeated their crimes and were imprisoned once again. The research-based analysis surmised that we were focusing on the wrong issues and wrong sanctions – retribution, incarceration and deterrence, giving too much attention to the low-risk offenders and too little attention to the high-risk offenders. Some of the programs we have utilized in the past have not applied research knowledge, nor have these practices been applied with fidelity.

The solutions suggested were risk management, or reducing the capacity for recidivism, and risk reduction, or diminishing the likelihood of repeat offending. By responding to certain “criminogenic needs,” the combined effort improves outcomes, especially recidivism. In addition, responding to those needs has the ultimate effect of increasing public safety, reducing crime, preventing future harm, and targets interventions with the best possible returns for limited resources. Other suggestions advanced and recommended include targeting moderate to high-risk offenders, criminogenic needs, and accurately assessing risks and needs through actuarial tools combined with professional judgment. The study also purposed using cognitive behavioral programs rooted in a social learning theory as the most effective at reducing recidivism. It is most important to whatever degree possible to involve the families of the offenders, as treatment programs must provide a continuity of care that includes support from the people closest to the offender. The report also noted that imposing additional conditions of probation beyond those directly related to the offender’s risk/needs only distracts and impedes the process.

By assessing and targeting criminogenic needs for change, agencies can reduce the probability of recidivism. Criminogenic needs identified include anti-social attitudes, anti-social friends, substance abuse, lack of empathy and impulsive behavior. The study analyzed recidivism rates and found that the highest recidivism rates were among non-violent offenders. A meta-analysis of 50 studies dating from 1958 involving 336,052 offenders revealed that prisons produced a slight increase in recidivism, that prisons should not be used with the expectation of reducing crime, that excessive use of incarceration has enormous cost implications, that lower risk offenders are negatively affected, and that the primary justification of prison should be to incapacitate and extract retribution.

The purpose of this article is by no means to advocate elimination of jails or prisons, since they truly serve their purpose in many instances. A criminal justice sanction is a penalty imposed on an offender by the Court for behavior that violated the criminal law. The five criminal justice sanctions commonly utilized include: 1) retribution – what an offender deserves or what is morally required by the offense (“an eye for an eye”); 2) incapacitation – prevents future criminal wrongdoing by physically restricting the offender or limiting the offender’s activity in some way (jail or prison); 3) general deterrence – makes an example of someone; 4) restoration – seeks to restore harm done to a victim or the community (making one whole again), and; 5) rehabilitation and treatment – focuses on criminogenic needs of the offender and offers some way to have those needs addressed.

Discussions that detail the application of the principles associated with rehabilitation and treatment are clearly beyond the scope of this article. Certain aspects have been introduced within the recently passed Justice Reinvestment Act, and, for example, specifically by its directives in utilizing risk assessment and management for any offender placed on supervised probation after Dec. 1, 2011, and the requirement of having a risk assessment completed within 60 days of being placed on probation. Another similar approach mandates the implementation of treatment and ultimate dismissal of any first-time possessory drug offense as detailed in Chapter 90, Section 96 of the North Carolina General Statutes. That’s a good start, but there must be additional funding to effectuate these changes, including, but not limited to, the reinstatement of all funding for North Carolina Treatment Courts.


Conclusion
In my 30 plus years of criminal defense work in both the State and Federal Courts, and nearly four years as a District Court judge in the Criminal Division, I have learned that incarceration of non-violent offenders and low-risk individuals has been counter-productive and is simply not successful in curbing crime. True, some high-risk offenders absolutely must be incarcerated, or incapacitated, to protect the community and society. We, as parties to the criminal justice system, must not confuse those individuals with the countless other non-violent offenders, and divert limited resources to risk assessment and risk management, address the criminogenic needs, and implement meaningful changes in behavior. Our citizens and society as a whole would be greatly rewarded by addressing these needs and keeping these offenders out of the jails and prisons and out of the revolving door process. I am encouraged and pleasantly surprised by the results of the recent Charlotte-Mecklenburg 2012 Criminal Justice System Survey. The citizens in this county who have voiced their opinions in the survey are supportive of the concept of rehabilitation as opposed to incarceration of non-violent offenders. Everyone in the criminal justice system should hear and respect the message we have now received.

The unified court system has been moving in the direction of rehabilitation over incarceration for years. Unfortunately, the Legislature’s failure to continue to fund the programs necessary to maintain these progressive changes creates the exact opposite, retrogressive movement. For the betterment of our community, let’s hope the Legislature heeds the clear message which has been sent by the citizens of Mecklenburg County. •


Judge Theo X. Nixon serves North Carolina’s 26th Judicial District (Mecklenburg County) as a District Court Judge.

Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.