A More Rational Approach to Incarceration – Carey R. Dunne

President’s Column, August 2013

Attorney General Eric Holder’s speech to the American Bar Association last week was welcome, and long overdue.  He noted that the United States is the world’s leading jailer. We have five percent of the world’s population, but 25 percent of the world’s incarcerated population. He said, “Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities,” and he acknowledged that “many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.”

America’s prison population is disproportionately black and Latino, and as the New York City Bar Association has maintained over the years, many are in prison because their sentences are disproportionately long or because appropriate alternatives to incarceration are ignored. The ramifications of having so many lives uprooted and families torn apart are incalculable, and the huge number of young black and Latino men serving time may serve to hold back an entire generation from being productive members of society. While many in prison are appropriately serving long sentences, and while it is essential to remain vigilant in fighting crime, as a society and a legal profession we must work to rationalize the current approach to corrections and to allow individuals with conviction histories the opportunity to live productive lives.

At the City Bar, we have focused on various aspects of this problem. Our criminal justice committees were strong proponents of amending the draconian Rockefeller drug laws, enacted in New York in the early 1970’s, which imposed severe prison terms on even low-level nonviolent offenders. There was broad bipartisan support for this effort, which finally bore fruit in 2009. Now, the severe penalties rightly focus on major players in the drug trade and those who commit violent crimes, while others are handled in a more appropriate way.

In his speech, Attorney General Holder gave several examples of programs that offer alternatives to incarceration and save taxpayer resources. In 2000, I was Chief Counsel to then Chief Judge Judith Kaye’s commission to assess the impact of drug cases on the New York State Courts. It quickly became clear that the system was dealing with two very different groups of offenders: criminals selling drugs for profit and addicts whose drug-related crimes were motivated by their addictions. We found that applying the conventional criminal paradigm to addicts clogged the courts and did little to reduce these individuals’ recidivism. Among our recommendations was the formalization of “drug courts” to induce non-violent addicts to get treatment in lieu of incarceration.

At the time, we calculated that as many as 10,000 non-violent addicts would be eligible for treatment, which would not only reduce recidivism, keep families together and strengthen communities, but would also reduce prison costs by tens of millions of dollars in New York State. A 2003 study of drug courts by the Center for Court Innovation demonstrated the effectiveness of the concept, and today there are nearly 150 drug courts across New York State and more than 2,000 in operation around the country.

The City Bar has been particularly concerned about arrests and convictions for marijuana use. In New York City alone, in 2011, over 50,000 individuals were arrested for marijuana offenses. And as is true nationwide, those arrested were predominantly black and Latino even though studies have shown marijuana use is just as substantial among whites. Our Drugs and the Law Committee has been urging that the law be changed to decriminalize possession of small amounts of marijuana. Such possession is simply not the type of criminal activity for which people should be uprooted and thrown into the criminal justice system, let alone the correction system, with the resulting harm to those involved and the needless expense of public funds. Governor Cuomo has indicated interest in ameliorating this problem and we hope the Legislature will get it done.

There should also be special concern given to individuals who use marijuana to relieve the pain, nausea and other symptoms of cancer and other serious diseases. We have been advocating for allowing the medical use of marijuana in New York, and legislation has been proposed to add New York to the list of 20 other states and the District of Columbia that permit use of marijuana for medical conditions. Our Drugs and the Law, Health Law and Land Use Planning and Zoning Committees have supported this legislation, issuing thoughtful reports examining the various aspects of establishing a system for regulating medical marijuana. We hope that issue as well receives serious attention during the next legislative session. 

For those in the correctional system, we have been concerned about both humane treatment and how they will fare upon re-entering society. Two years ago, our International Human Rights Committee issued a report on solitary confinement in the United States, noting that the widespread use of this strategy in the U.S. violates basic human rights and in many cases constitutes torture or “cruel and unusual” punishment. We also have issued reports urging improved care for inmates suffering from physical and mental illness, and were strong supporters of legislation enacted in New York in 2008 that focused on improving the treatment of incarcerated individuals with mental disabilities. This is sound policy, not solely because we are obligated to treat our fellow human beings with care even if they have transgressed, but also because discharging individuals with untreated illnesses into the community negatively impacts those released, their families and society as a whole.

For those who have served their sentence, re-entry into society continues to be fraught with difficulty.  Article 23-A of New York’s Correction Law limits the ability of an employer to reject someone who was formerly incarcerated, but the law’s exceptions are broad and too many otherwise qualified applicants have been denied the opportunity to get themselves back on their feet. Our Corrections and Community Reentry Committee has been advocating for legislation that would reduce those restrictions. Our Labor and Employment Law Committee has issued guides for employers and job applicants regarding the hiring of people with criminal conviction histories, so all involved can learn what can be legally done in the hiring process. Beyond employment, there are many other hurdles placed in front of those reentering society after incarceration that promote recidivism rather than productive reentry. 

While Attorney General Holder’s new policy initiatives are a positive step, we must provide more opportunity and assistance to those who will now be released or serve shorter sentences so they can break out of the “vicious cycle” and effectively rejoin the larger society.