Off the Bench: Criminal justice reform has come full circle; the ‘fixing’ never ends

By James W. Dolan
Special to the Reporter

Good public policy is all about establishing a sensible balance between often opposing views. In the attempt to achieve that balance, we too often go from one extreme to another. Criminal justice reform is an example. In the 1970s, rising crime rates prompted a reform emphasizing stiffer sentencing, including mandatory incarceration for drug dealers and repeat offenders. In so doing, policy makers were responding to complaints of community residents.

The reform produced the desired effect. Crime was reduced as more offenders were sentenced to long prison terms. However, there were unanticipated consequences. Draconian sentencing resulted in a huge increase in the number of those incarcerated; more often than not black males. Given the absence of other opportunities, many black youth became drug dealers as the only reasonable alternative to unemployment or under employment. It beat working at a fast food chain. They assumed the risk of being caught or worse, of being shot, because of the competitive violence common to the business.

Now, criminal justice reform has come full circle. Appalled by the numbers, cost, overcrowding, recidivism, and dismal prison conditions, the emphasis is on less incarceration and more on alternative sentencing that stresses treatment and rehabilitation. Its success or failure will depend on (a) the effectiveness of the new programs in providing training and jobs for offenders and (b) a reduction, or, at the very least, no significant increase in crime. Prison serves two obvious purposes – as a deterrent and as incapacitation , preventing those imprisoned from committing crimes.

High crime communities will support this new approach so long as they believe it enhances public safety. There is a risk that by emphasizing a more humane approach to offenders, crime will increase. In my experience, community leaders in high crime areas are mainly concerned about safety. They invariably wanted more police and strict enforcement. Judges are often criticized for being too lenient, rarely for what might be viewed as harsh sentences.

Residents are also troubled by disorderly behavior (relatively minor offenses) that tend to diminish quality of life. Recent proposals to minimize such offenses may not sit well with the community. When I was a judge, the emphasis was on victims (actual and potential). Now it’s gradually shifting to the offender. How do we best serve him or her to assure they become productive citizens? Sometimes offenders are themselves victims, having had had few, if any, opportunities. Despite that, they still represent a threat to public safety. Judges are realists; they have to deal with things as they are, not as they should be.

The success or failure of this new wave of criminal justice “reform” will depend on achieving that elusive balance between justice and mercy, deterrence and rehabilitation, victim and offender. There is room for both, but, knowing human nature, I’m not confident we can achieve a satisfactory long-term resolution.

As you may have guessed, I’m skeptical of the word “reform.” It suggests a solution, and too often I have seen yesterday’s reform become today’s problem. Remember: Reformatories and reform schools were once considered innovations. I’m more confident in slow, incremental progress rather than sweeping changes. Preserve what’s good and make it better. So much depends on the capacity and good will of those seeking to improve any system. It takes persistence, humility, trial and error. Reform implies we are “fixing” something. For me, the fixing never ends; we can always do better.

James W. Dolan is a retired Dorchester District Court judge who now practices law.

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