Popular Crime

by Bill James

  With a network of small prisons you can respond to the needs of prisoners in a thousand other ways. If you have intelligent prisoners who want to take college classes, you can move them to a prison with intelligent prisoners where college classes are offered—a prison that is, in essence, a very small college with high walls and a bad basketball team. If you need to protect the child molesters from the general prison population, you can move them to a prison full of short eyes. If you need to protect ex-police officers who are incarcerated, you can move them to a prison with several other ex-police officers. If you need to provide medical assistance to prisoners who are HIV positive, you can house them with other prisoners who are HIV positive.

  With a network of small prisons you can break up prison gangs by isolating prisoners from other members of their gang. By doing that—and by forcing prisoners to interact with members of other population groups on a one-on-one basis—you could put the prison gangs out of existence within a few years.

  Suppose that there are 6,000 men incarcerated in the state of New Uzbekistan—which would indicate that New Uzbekistan is a very small state—and that, as of now, 3,000 of those are locked up in the New Uzbekistan State Penitentiary, and the other 3,000 are scattered around among 25 other facilities. We replace that with a network of 300 small prisons, each with a capacity of 24 prisoners and averaging about 20.

  Those 300 prisons are sorted first into ten types of facilities, with ten different levels of privileges. At a Level One facility, a prisoner is allowed to have nothing—no radio, no television, no visitors, no snacks, no pens, no notebooks, no computers, no coffee, no furniture, no playing cards, no wristwatch and no newspaper. He is allowed to have a book of faith, food and drink, and he is allowed to visit his lawyer; that’s it.

  At a Level Ten facility, a prisoner is allowed to have anything—suits, ties, television, computers with the internet, etc. Obviously he is not allowed to have guns, drugs or violent pornography, but within reason; a Level Ten facility is what we would now call a halfway house.

  Between Level One and Level Ten, rights increase gradually as the prisoner moves up. At Level Two, the prisoner is allowed to have a radio. At Level Three, he is allowed to have access to a community television. At Level Four he can have his own television, but no cable. At Level Six he can have basic cable. At Level Eight he can have cable with premium channels if he can pay for them.

  At Level One the prisoner can have only a religious volume and whatever access to a law library is required by the courts. At Level Two, he can get a local newspaper; at Level Three, newspapers and magazines. At Level Four the prisoner can have three books in his cell at a time, and he can exchange books once a month; at Level Five, ten books, and he can exchange them once a week. At Level Six he has access to a library; at Level Seven, to a better library.

  As the prisoner moves up the ladder the food gets better, and the policies get more lenient. At Level One the lights are on 24 hours a day; at Level Two, they go off from midnight to 6 AM. At Level Seven, you’re in your own room and you can turn off the lights whenever you want to. At Level Ten, you can come and go as you please as long as you sign in by 9 o’clock at night.

  At Level One you have no access to money. At Level Ten you can hold a job outside the prison. At Level Four you can have a cup of coffee once a day; at Level Five you can have coffee when you want it. At Level Six you can have one soft drink a week if you can pay for it. At Level One you can see no one; at Level Two, you can have three people on your visiting list and they can each visit once a month for one hour. At Level Three, you can have five people on your visitors list, and they can each visit once a week for one hour. At Level One or Two, obviously, you have no pets. At Level Four you can have a goldfish or a hamster; at Level Five, a cat. At Level Six you can have a small dog.

  Such a system provides a powerful incentive to the prisoner to buy into the program. If you spend two years at Level Three and move up to Level Four, Level Four seems like heaven; you’ve got coffee, a television, playing cards, regular visits from your family and a few books. If you’re at Level Four, what you think about is how you can get to Level Five, and you really don’t want to get caught in a violation and get sent back to Level Three. In a large prison nobody can have a pet because it would be crazy if everybody had a pet. In a 24-man prison, eight or ten people might choose to keep pets, and it’s not really an issue.

  A large prison provides no incentive to the prisoner to buy into the program, and attempts to enforce compliance with the threat of punishment. But since the punishments that can be legally meted out by the prison are trivial compared to the punishments that are meted out by the other prisoners, this is totally ineffective, thus creating a situation in which the real rules are the rules created by the prison population. My alternative would provide the state with vastly greater effective control of the prisoner, which is the essential goal of incarceration: to take control of the prisoner’s life.

  A network of small prisons can be used to set goals for prisoners and push them toward those goals. You want to move to Level Five? OK; we want you to be able to read at a tenth-grade level, we want you to participate actively in anger management therapy, and we want you to select a profession for which you want to train. You meet these goals, we’ll talk.

  But remember, in New Uzbekistan we don’t have one Level One prison and one Level Four prison; we have 30 prisons at each level. That means that we can do these things—stratify the privileges—and accommodate the needs of prisoners in many other ways. You can have a Level Four prison that operates a small farm, and a Level Five prison that operates a small farm, and a Level Six prison that operates a small farm. If you have prisoners from a farm background, they can apply to go through that system. You can have a Level Five prison that teaches auto repair, and a Level Seven prison that operates a small auto-repair business, and a Level Six prison that teaches dog grooming and dog obedience, and a Level Eight prison where prisoners teach dog obedience classes. You can have a Level Three prison that teaches upholstery, and a Level Seven prison that has a small business manufacturing couches and chairs.

  Much of this is stuff that has existed historically, but has been lost as we have moved toward these large, gruesome, impersonal prisons that offer no opportunities to the imprisoned. And yes, there will be people who will be trapped permanently at the lowest levels of this system, people who have committed crimes so horrible that they will never be allowed to move above a Level Three prison—but those prisoners are not the majority of the system. The majority of prisoners are going to get out.

  Many of the problems of the current nightmarish prison system have been created by the NIMBY problem: Not In My Back Yard. It is so hard to find a place to put A prison, in the modern world, that we like to confront that issue as seldom as possible.

  But in the prison system that I am advocating, the NIMBY problem goes away because everybody has to understand: There are going to be little prisons everywhere. Every town of 3,000 people has a couple of little prisons. If you work in a big office building, the 17th floor may be a prison complex. If you work in a strip mall, the place next door may be a prison.

  But that is much less threatening if the prison is small, and if it is generally understood that Charles Manson is not being housed there. The lowest-level prisons are isolated and heavily guarded and the people in the higher-levels prisons are really not that much different from you and me.

  Prisons benefit from interaction between the prisoner and the public. Many, many, many people are very willing to go into a prison, and try to help the people who are there make a better life. I am entirely willing to go into a prison and teach a class, and my wife is, and my brother-in-law is. Ministers are almost universally willing to minister to prisoners; many psychologists are willing to donate time to counsel those in need of help. The problem is, that’s extremely difficult to arrange if you have a large, hostile prison located in some isolated place as far away as possible from the p
ublic.

  The better integration of prisons into society would reduce the problem of prisoners getting re-integrated into society. In the current system a prisoner who draws a ten-year sentence might spend 9½ years in what amounts to a Level Four prison, and then has six months in a halfway house—which amounts to a Level Ten prison—to get re-acclimated to society. This system fails a very high percentage of the time, and usually results in the prisoner returning to confinement. By giving the prisoner more contact with more outside citizens as he progresses gradually toward release, the prisoner emerges with many more points of contact.

  Here’s another benefit that I would predict would follow from a small-prison movement: it would create a generation of professional people who work to create better prisons.

  In my youth we were all idealists, and I knew many people who talked about becoming prison reformers. None of them did, because there was nowhere to start. There’s no profession there. If you get a job as a prison guard you get $12 an hour and a blue uniform, and after twenty years you’ve got a job as a prison guard, $18 an hour, a little gold patch on your uniform and you get to go first in choosing your vacation schedule.

  With a network of small prisons, if you were hired by a prison you’d be on a staff of four or five people who managed a small prison. With 300 prisons in a state you’d have 300 wardens. You’d have a community of prison wardens. There would be stature in that community. You would have people who were known in that community for their creativity, for their success at helping those they were charged to help. To move up in your profession you could move easily to another prison. If your spouse got a better job, you could move with her or with him. Within a few years, if you did a good job and took the right classes, you could be a prison warden.

  Current system, you ain’t ever going to be the warden. You get hired as a prison guard, you’re a prison guard. It’s a train headin’ nowhere. This discourages innovation, and it discourages pride in your work. I would predict that a consequence of a small-prison network would be a dramatic increase in the quality and quantity of people who wanted to work in the prison industry—and not money-driven people who wanted to start private prisons, like we had in the 1980s, but quality people who wanted to serve society. Not that there is anything wrong with wanting to do well; actually, a network of small prisons could be a network of small, private prisons.

  Because the current system discourages innovation, it wastes money. I know that many of you are thinking this system couldn’t be run as efficiently as I think, but here’s one reason it could. The business of monitoring prisoners is extremely open to electronic innovation—cameras, ankle bracelets, Breathalyzers, voice recognition technology, remote key controls, etc. In the current system, which limits innovation because innovations have to work immediately on a large scale, you may need one guard and one other employee for every eight prisoners on average, or something like that.

  But in a small-prison network in which small experiments searching for better solutions were easier to attempt, I would predict that we would very quickly reach a point at which one guard could safely monitor and control several prisons (higher level prisons), causing the ratio of security to non-security employees to shrink rapidly. Having the prisons privately run, but with standards, could also encourage those innovations. And, of course, we would also save money because we could provide for each prisoner the level of supervision that is necessary for that prisoner, rather than the level of supervision that is necessary for the most violent prisoner who represents the greatest threat to the public.

  Well … that’s probably not going to happen tomorrow. A prison of 500 people is vastly better than a prison of 1,000; a prison of 200 people is less evil than a prison of 300. If I can get a few people to see why that is true, I’m happy.

  My second suggestion for you is: please try to stop thinking about issues of criminal justice in conservative and liberal terms.

  Look, what I am essentially arguing above is a liberal agenda: that we are better off, as a society, if we have less harsh prison conditions, that it is not a lost cause to try to help people get back on their feet after they go astray, that training and treatment of prisoners is worth the cost, and that people who enter our prisons are by and large, at the time they enter the system, not frightening, violent monsters who will take advantage of whoever reaches out to them, but merely young people who have done wrong. At the same time, in advocating this belief, I am merely advocating a return to the mainstream American values of the years 1880 to 1970, when efforts to help prisoners were commonplace.

  But it is also my view that 99% of the work of destroying those values was done by liberals. The rights-based agenda of the 1960s and 1970s was poison to progressive prison policy. These huge prisons that we have today … do you know why we started building those? You’d never guess.

  Law libraries.

  One of the chief reasons that we started building these massive dungeons that now house a large percentage of the American prison population was court-mandated access to law libraries. Prisoners are always working on appeals of some kind or another, often doing the work themselves. Beyond that, many prisoners are litigious. As anyone who has ever clerked for a federal judge can tell you, a huge percentage of the lawsuits they see—I’ve been told 85%—are suits from prisoners protesting that their rights are being violated because the biscuits are burned and the light bulb hums all night and they can’t sleep.

  In the 1960s and 1970s, numerous judicial rulings established and strengthened the right of prisoners to have access to a law library. Many, many lawsuits were filed by prisoners protesting the inadequacy of the law library. Legal libraries are expensive. If you built 50 small prisons, you had to equip them with 50 law libraries—and I mean 50 first-class law libraries, or you’d get sued. It was much cheaper to bring them all together, and just have one law library. This was probably the second-largest factor, behind the NIMBY syndrome, in the consolidation of prisoners into fewer and larger facilities.

  That’s behind us now; with the internet you can create one law library and have it wherever you need it. But that’s typical of the problem. We had parole, but then prisoners acquired the right to make parole, rather than the opportunity to make parole. That killed parole.

  In the American political debate as it applies to the justice system, the left’s idea of progress is relentlessly expanding the rights of the accused, and the right’s idea of progress is longer prison sentences. These are two lousy ideas, and they have resulted in a dysfunctional system.

  In a well-functioning family, punishments are so light as to be hardly recognizable as punishments. Supervision is constant, standards are clear, and misbehaviors are corrected with a word, a moment’s instruction, an explanation, a hug, and, if need be, with a few minutes in a timeout chair or being grounded for a week.

  In a dysfunctional family smaller misbehaviors go unnoticed and uncorrected, standards are unclear, and punishments are harsh. The kid gets by with more and more and more with nobody saying anything, and then he gets slapped, yelled at, humiliated and grounded for a year. This doesn’t work.

  Our judicial system is, in essence, a dysfunctional family. We ignore small misbehaviors, we let people get by with things that they shouldn’t get by with—and then we try to play catch-up by handing out harsh punishments for major offenses. It doesn’t work.

  Who’s responsible for that: conservatives or liberals?

  Both. The liberals are in charge of insuring that we don’t do anything about day-to-day misbehaviors—and the conservatives are in charge of making sure that we act harshly when finally we take action.

  Suppose that you tried to keep your yard in order not by mowing it regularly, but by going out once a week and pulling up the biggest weeds. Wouldn’t work, would it—but this is essentially what the criminal justice system does. Simple example: bicycle theft.

  Routine bicycle theft is, in theory, ridiculously easy to prevent. What you do is,
you set up a decoy bicycle with a hidden camera pointed at it and a transmitter hidden in the tubing of the frame, and you wait for somebody to steal it. Then you arrest them, and you put that person in prison for six months. One doesn’t get to steal three or four bicycles before you go to prison; one bicycle, six months. You do that regularly, all the time, and after a few months people know better than to steal bicycles.

  That’s mowing your lawn. Instead, what we do is, we wait until there’s an organized ring of bicycle thieves, then we move in on them and send the ringleaders to prison for 20 years. That’s pulling up the largest weeds.

  Punishment doesn’t need to be harsh; it needs to be consistent, and certain. The liberal approach to this problem is to give the bicycle thief every opportunity to straighten himself out before we ruin his life by sending him to jail. The conservative approach is to campaign for much harsher penalties for bicycle theft. Neither one works, and they don’t work together worse than they don’t work individually.

  Criminal justice calls for the careful balancing of competing interests within a complex problem. Liberal/conservative thinking is organized around large principles. It’s like trying to fix a pocket watch with a monkey wrench, a hammer and a 16-bit drill. The tools are too large for the problem.

  It is my view that the left/right ideological dichotomy does not serve us well with regard to almost any issue—but that about no issue is it more destructive and less useful than about the system of justice. Liberals are hung up on two or three ideas about criminal justice—protecting the rights of the accused, and ending capital punishment, and eliminating prison sentences for non-violent drug offenders—and conservatives are hung up on two or three ideas about criminal justice, such as harsher punishments for repeat offenders, expanding capital punishment, strengthening the hand of prosecutors in dealing with criminals, and making sure nobody passes any new gun laws. One gets the feeling that they fight about these things because they enjoy fighting about these things. It’s hard to see what else is being accomplished.