A system built on restoration through diversion programs and specialty courts
Over the past four decades, the U.S. has expanded the criminal justice system, making it more punitive and relying on incarceration as the default response to crime. Now, the U.S. has one of the highest incarceration rates in the world, with recent data showing there are about 664 people incarcerated per 100,000 of the general population. Unfortunately, state-level data shows that 24 states have even higher incarceration rates. However, we now know that incarceration is not always the most appropriate response to crime.
In recent years, states have begun to implement practices and policies that successfully address criminal behavior while improving outcomes and reducing recidivism. Among other improvements, states have seen success by diverting defendants from confinement and addressing problems through alternative courts; removing incentives for courts to collect excessive fines and fees; and clarifying and repealing criminal laws to prevent unnecessary system involvement. These reforms provide people with stability to prevent unemployment, maintain existing social and familial supports, and stay in the shallow end of the criminal justice system as much as possible.
Solving the Problems
Alternative or accountability courts offer non-violent offenders a chance to meet certain conditions (such as completing a drug counselling program) to avoid jail time, reducing recidivism and a state’s prison population.
According to a study by the Carl Vinson Institute for Government in Georgia, “these programs reduce recidivism by about 12 percentage points, from 50 percent to 38 percent.1”The Estimated Economic Impacts and Benefits of Accountability Court Programs in Georgia (Carl Vinson Institute for Government, University of Georgia, 2018), 2, https://cjcc.georgia.gov/document/full-report/download.
States can reduce incarceration rates by expanding alternative courts and targeting higher graduation numbers from counseling or rehabilitation programs. Combined with work connection programs, these policies can help decrease recidivism and increase connection to society.
How to implement
- States should expand accountability courts to all counties and parishes.
- States should move judges into the accountability court program or create new courts to expand availability.
Drug Courts – Georgia.
Drug courts are one of the most popular types of accountability courts. They give defendants the opportunity to complete a drug treatment program under a judge’s supervision. If the defendant completes treatment, the charges are dropped. The idea is to help those with drug addiction overcome it. Some drug courts even hold graduation ceremonies for those who complete their treatment. The Atlanta Journal-Constitution reports on one graduate:
Gordon Pirkle, Jr., who beat a meth addiction with the help of drug court, is still thriving. Pirkle’s father, who for years could not count on his son, has put him in charge of a family business he started decades ago: a popular NASCAR-themed restaurant in Dawsonville called the Pool Room. Pirkle says he works seven days a week and is too busy to even think about using drugs.
His kids work with him and he says he’s closer than ever with his children and his grandkids. ‘I owe it all to drug court,’ he said. ‘It has gave me back my life.’ Pirkle said he goes out of his way to give jobs to people who are in drug court or who have recently graduated from the program. ‘I’m trying to give back,’ he said.
Not all defendants qualify for drug court, and not all who attend drug court succeed, but many do, and they are the people driving down the recidivism rate as described above. Other accountability courts operate in much the same way. Some, such as mental health courts, may require longer supervision, but have also proven successful.
Being arrested, incarcerated, and having a criminal record can have a long-lasting impact on an individual’s opportunities—driving poverty and preventing them from achieving upward mobility and independence. Over time the definition of “criminal activity” has expanded to include hundreds of thousands of regulatory offenses. Criminal law should center around addressing behaviors that are inherently wrong, enhancing public safety, and providing justice to victims—rather than be used to regulate and punish negligence that would be better addressed through civil law.
States can address this increase in criminalization and prevent prosecutorial abuse by establishing panels to review their criminal laws and make recommendations to revise or repeal those that are ambiguous, unnecessary, duplicative, or otherwise insufficient. Additionally, states should impose civil penalties to regulate business activity, rather than creating new, unnecessary criminal penalties.1 “Overcriminalization,” Issues, Right on Crime, accessed November 30, 2021, https://rightoncrime.com/issue/overcriminalization/.
The History of Overcriminalization in the U.S.
Between 1790 and 2008, the number of federal crimes rose from 23 to 4,450, not including an additional 300,000 regulatory offenses that result in a criminal penalty. These regulatory offenses, created not by Congress but by unelected agency leaders, criminalize business activity that would traditionally be addressed through civil and administrative remedies.2“Overcriminalization,” in Legislator’s Guide to the Issues 2021-2022 (Austin, TX: Texas Public Policy Foundation, 2020) , https://www.texaspolicy.com/wp-content/uploads/2020/09/2021-22-Lege-Guide-1-pager-ROC-Overcriminalization.pdf. This phenomenon is not limited to our federal system and is also prevalent at the state level.
For example, Texas has roughly 300 criminal offenses in its Penal Code. However, the state has over 1,700 criminal offenses in total, with most located outside the Penal Code regulating activities that are not traditionally considered criminal.3“Overcriminalization,” Texas Public Policy Foundation While criminal laws typically require intentional, knowing, or reckless conduct, these regulatory offenses often require only negligence.4“Overcriminalization,” Right on Crime. This unnecessarily pushes people into the criminal justice system, increasing their likelihood of experiencing the negative outcomes associated with arrest, incarceration, and a criminal record.
One in three citizens live with a criminal record as a result of this widespread increase in criminalization.5“Communications Toolkit,” Clean State, accessed December 5, 2021, https://www.cleanslateinitiative.org/toolkit.
How to implement
- Establish a volunteer commission charged with studying and reviewing the criminal laws of the state.
- Impose a deadline for the commission’s findings and recommendations to be reported to elected leaders and online to the public.
- Identify the elected leaders who will appoint the commission members.
Texas Commission to Study and Review Certain Penal Laws.
In 2015, the Texas Legislature passed HB 1396,6HB 1396, 84th Texas Legislature (2015), https://capitol.texas.gov/BillLookup/History.aspx?LegSess=84R&Bill=HB1396. creating a volunteer panel with the goal of evaluating and making recommendations on any criminal laws that are “unnecessary, unclear, duplicative, overly broad, or otherwise insufficient to serve the intended purpose of the law.” The commission was renewed in 2017.
Unfair and unjust use of fines and fees can drive those in poverty into greater debt and hardship. People who cannot afford to pay may end up with a criminal record for a civil infraction. They may face additional unaffordable fines, be forced to serve jail time, or both.
Traffic and criminal courts throughout the nation often rely on fines and fees to fund their operations. This creates problematic and ethically suspect incentives. Some laws mandate fines or fees, locking officers of the court into administering harsh financial sanctions in a one-size-fits-all approach which disproportionately impacts those experiencing poverty. This practice limits the court’s ability to use its best judgment. Courts should be free to negotiate non-financial punishments for those who will likely face hardships from burdensome fines and fees.
Fines and fees impede prosperity for those who need it most. The American Bar Association released a report showing that nearly 10 million low-income Americans owe more than $50 billion in fines and fees.1“New ABA study captures impact of fines, fees on the poor,” News, American Bar Association, June 29, 2020, https://www.americanbar.org/news/abanews/aba-news-archives/2020/06/new-aba-report-captures/. This debt continues to mount and leaves people struggling to pay and facing jail, risking their ability to work and build a better life. We must reform this system to give the poorest citizens a chance to realize the American dream. Courts should not be a pay-to-play system that exploits the vulnerable by limiting their opportunities to work and provide for their families.
How to implement
- Require court funding to be centralized and budgeted by the state legislature, eliminating perverse incentives to levy fines.
- Limit fines based on ability to pay or create hardship exceptions for low-income defendants.
- Replace fines with community-service provisions in statutes.
- Repeal legislation that requires mandatory fines, allowing officers of the court to negotiate and use their discretion.
Virginia Fines and Fees Structures. In 2020 and 2021, Virginia implemented changes to its fine and fee structure. SB 1 ended driver’s license suspensions for non-payment of court fees and fines in 2020.2“Virginia SB1: Driver’s license; suspension for nonpayment of fines or costs,” News, Fines & Fees Justice Center, April 9, 2020, https://finesandfeesjusticecenter.org/articles/virginia-sb1-drivers-license-suspension-for-nonpayment-of-fines-or-costs/. It applied retroactively, requiring the Department of Motor Vehicles to reinstate all licenses that had been suspended due to non-payment of fines before July 1, 2019, and waive all reinstatement fees. In 2021, Virginia implemented HB 1895, which halted all interest accrual for criminal justice fines (i) for a period of 180 days following the date of the final judgment imposing such fine or costs; (ii) during any period the defendant is incarcerated; and (iii) for a period of 180 days following the date of the defendant’s release from incarceration if the sentence includes an active term of incarceration.”3HB 1895, Virginia General Assembly (2021), https://legiscan.com/VA/bill/HB1895/2021. HB 1895 also ended the practice of requiring a down payment for any fee payment plan.
New Mexico Juvenile Fines and Fees.
In 2021, New Mexico’s Juvenile Fines and Fees Reform Act was enacted to eliminate administrative fines and fees charged to juvenile offenders.4“Press Release: New Mexico Legislature Approves Bill Eliminating Fines & Fees for Children,” News, Fines & Fees Justice Center, March 15, 2021, https://finesandfeesjusticecenter.org/2021/03/15/press-release-new-mexico-legislature-unanimously-approves-bill-eliminating-fines-fees-for-children/.