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Seeking prison alternatives will require nerves of steel, and a moral core

By Patrick B. McGuigan

Today, corrections spending (for jails, prisons and parole, among other things) is the second fastest growth segment in state budgets. Only Medicaid trails as a cost multiplier. That defines what is driving the new push across party lines for realistic alternatives to incarceration for certain offenders.

Overwhelmingly moral reasons also justify these changes.

In a recent interview, Kris Steele said, “It is written on my heart to be concerned about the way we treat those who are in our prisons, who have committed crimes, and how they should be treated as a result.

“For years, I’ve heard people talk about Oklahoma’s high incarceration rates for women. In the House of Representatives, we had an Interim Study two years ago. I learned that not only are we at twice the national average for incarceration of women but that 68% of the women we incarcerate are non-violent and/or low risk offenders.

“To be clear on this, there ought to be consequences for actions. I just want to be sure we are focused like a laser on what works and what doesn’t work in terms of consequences for offenses.

“When as a state, as a government, we put an individual in prison for 12-14 months who is not necessarily a danger or a threat to public safety, is that the best policy? I’ve been in the Legislature for 10 years, and I’m at the start of my last two years before term limits. Every year, we deal with the Corrections issues. [For Fiscal Year 2011], we will have to tackle a requested supplemental for Corrections immediately. Mind you, we’ll have to do that merely to maintain the status quo. So I’m wondering if the status quo is best.

“I’m concerned about the path we’re on both in financial terms and in terms of human resources. If we do put a non-violent offender in for serious time, are we engaging in the most effective methods so that they can develop the skills and habits of life to be equipped to lead a productive life after their time in prison?

“I am convicted, as well, that we do not have enough initiatives or programs available within the prison walls when we have people in incarceration. While someone is ‘inside’ we have a time to influence him or her, and they have a time to improve themselves and be ready for life in the mainstream. Otherwise, they may come out of incarceration more at risk to recidivate than when they went in.”

Last month, Steele was named legislator of the year for his long-time in this arena. Women and Children’s Services and those involved with its program, Women in Recovery, praise him.

I admire Steele’s work partly because he is focusing policy makers on arguably the toughest issue of justice facing America. He believes in the inherent dignity in every human soul.

In the 1980s, I compiled three books of essays by diverse authors on criminal justice issues. The last, Crime and Punishment in Modern America, included essays focusing on incarceration alternatives for non-violent crimes.

My writings had the distinction of garnering the sympathetic scrutiny of both then-President Ronald Reagan and Alvin J. Bronstein of the American Civil Liberties Union’s Prison Project.

Bronstein and I had previously clashed, but he said that book contained “some honest evaluations that alternatives to incarceration for some offenders can reduce the cost to taxpayers while posing no real threat to society.”

I gave Reagan the book after a White House interview in 1986. It included essays by our mutual friends Jack Kemp and Ed Meese. The President said he’d read it.

Later a White House counsel office friend called to good-naturedly curse at me. He said I had added to the lawyers’ work because the president had concluded a meeting on draft federal sentencing guidelines by asking the staff to review the guidelines in light of “some reading I’ve been doing” about incarceration.

One of the book’s authors was a Christian, Daniel Van Ness, whose crime philosophy was fashioned initially by personal experience with massive personal losses his home’s burglary. He declined to file an insurance claim because of the inevitable rate increase. That experience made him think of crime’s ripple effects, so he consulted Holy Scripture.

Van Ness’ essay, “The Christian and the problem of Crime,” remains a seminal influence on me. He summarized the Biblical core of justifications for imprisonment in four key elements: incapacitation, deterrence, rehabilitation and punishment.

At the back end of criminal justice, the American system’s emphasis on punishment, as opposed to rehabilitation, was/is actually a modern development. Rehabilitation, including restitution to victims, somehow faded away as the emphasis on punishment included three of the four elements, but not the one that can do the most good for the souls of offenders, i.e. rehabilitation.

In that same book, the great Christian legal scholar, Dr. Herb Titus explored the restitution purposes of the Old Testament’s lex talionis, rebutting the distorted view that the law of “eye for eye, tooth for tooth” was intended to be taken literally and is merely a prescription for retribution. As Titus summarized, the real purpose of the guidelines in Exodus, Leviticus and Deuteronomy was “to tailor all remedies, civil and criminal, to restore a person injured in accordance with the blameworthiness of the wrongdoer and the seriousness of the injury of the person wronged.”

The issue never went away, and likely never will. But that doesn’t mean that performance cannot be improved in this, as in all areas of governance.

Pat Nolan and I became friends after he emerged as a conservative leader in California. Then, he was snared in an investigatory net that, from afar, looked like a political prosecution. While he was incarcerated, my wife and I corresponded with him regularly. After emerging from prison, Pat became a leader of Prison Fellowship, the organization Charles Colson founded after his own experiences “on the inside.”

Nolan was one of several panelists discussing criminal justice reform at last month’s Conservative Political Action Conference (CPAC) in the nation’s capital. Through his work at Prison Fellowship, he’s helping to guide a new group called “Right on Crime.”

At CPAC,  long-time “Old Right” writer Jon Basil Utley presented the Freda Utley Prize for Advancing Liberty to Nolan. Making the presentation, Utley commented, “The U.S. today has more persons in prison or in its criminal justice system than any other nation in the world. About half are for victimless crimes, minor parole violations, and extremely long sentences under mandatory minimums. Prison guards have become a powerful labor union lobby seeking more prisons and prisoners. … The drug war and threats of terrorism have been used to vastly expand the prison powers of government.”

Utley contends warrantless searches are now routine in America, and adds: “Civil or political offenses are more and more turned into criminal ones.”

Do these signs of rethinking, or at least revisiting, mean a significant change? Is this new breed of compassionate conservatives going to wring their hands or blame society for the work of criminals? No, it means a new hard-headed realism rooted in morality and methodology that works has gained its place in this debate, and has begun to effect policy in a few states.

Right on Crime stresses “fighting crime, prioritizing victims and protecting taxpayers.”

The new focus was distilled in a Statement of Principles, which Utley credits to Nolan. That document is too long to print here, but a digest of its basic principles include the informed view that the system, as an extension of the entire framework of American governance, must reinforce “order and respect for every person’s right to property and life,” while assuring “liberty does not lead to license.”

The core wisdom of the statement is an insistence on transparency and a demand for accountability. In other words, just because a group of public servants are cops, or prison guards, or corrections officers (or, one might add, firefighters) does not mean they get any more of a pass than anyone else in government. They should be scrutinized and performance standards should be in place – and enforced.

After a lot of noise in the 1980s about victim rights – the best of the dialogue often led by the late Frank Carrington, a Virginian and lawyer who dedicated his life to serving people whose lives had been ravaged by criminals – many such programs fell into a kind of repetitive lethargy. The statement Nolan helped craft would put victims back at the center of the criminal justice equation as, if you will, key “consumers” of justice.

Prisons and corrections should be not only places of incapacitation, but also of safety, “personal responsibility, work, restitution, community service, and treatment.” Offenders willing to reform and return to society should be transformed through “families, charities, faith-based groups, and communities.” System accountability must align with both cost-effectiveness and public safety, and move away from “that grows when it fails.” Results matter. Don’t use crime, the Statement argues, as an excuse “to grow government and undermine economic freedom.”

Nolan has lived “on the inside.” Steele never has, but he is a man of deep empathy and insight. It’s no accident that Oklahoma’s conservative Speaker of the House has become the leading voice for criminal justice reform in the Sooner State.

Editor’s Note: This article is also appearing in the March 2011issue of “Perspective” magazine, the monthly publication of the Oklahoma Council of Pulic Affairs.

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