An unholy alliance between politicians and bureaucrats who want to keep prison costs to a minimum, and liberal intellectuals who pretend to see in crime a natural and understandable response to social injustice — which it would be a further injustice to punish — has engendered a prolonged and so far unfinished experiment in leniency that has debased the quality of life of millions of people, especially the poor.
Theodore Dalrymple, in Not With A Bang But A Whimper
THE NOTION that criminals are merely people who have been misunderstood, or mishandled by society, and therefore need only to be understood, not punished, is so predominant in the criminal justice system that it barely needs to be mentioned, let alone discussed. That discussion ended in the 1970’s, when “alternatives to incarceration” were presented as both a solution to prison crowding and to “the problem of incarceration” itself.
Today, community service, drug courts, half-way houses, Outward Bound programs, boot camps, and mental health diversionary programs are all part of the “treatment continuum” replacing incarceration. Also replacing incarceration are: plea bargains, parole, probation, electronic monitoring, early release, and cases where judges simply “dead docket” charges or otherwise decline to prosecute. There are so many venues for not incarcerating defendants that it is a wonder anyone goes to prison anymore, though prisons are overflowing. And talk of overflowing prisons leads seamlessly into talk of new ways to release prisoners early. Victimization – and crime itself – barely register as a bump in the road.
ALL THIS is bound to affect the perspective of the courts. Alternative sentencing is not necessarily a bad thing, but it can quickly become bad when judges forget that it is their job to protect the public, not merely address defendants’ needs.
In far too many recent courtroom decisions in Atlanta, it is hard to detect any cognizance of public safety on the part of judges. Victims and criminal acts seem to disappear from the record: narcissistic displays of bonding between judges and defendants take their place.
In some cases, the outcome is merely insulting, as when DeKalb State Court Judge Barbara Mobley permitted “N.Z.” (aka “MARTA Girl”) to read her poetry aloud in the courtroom before refusing to rule on the state’s case against her. Through dead docketing the case, Mobley silenced the public. She then turned the people’s courtroom into another platform for “N.Z.’s” artistic expressiveness.
Expression, not remorse, mind you. In the therapeutic courtroom, it is untoward to suggest that a defendant show remorse, and they generally do not. Is there any evident remorse in these lines performed in Mobley’s courtroom by “N.Z.”:
“Bipolar is up and down mood swings, and when it affects me I dance and sing”?
Was that what she was doing to that elderly woman on the train? Dancing and singing for her?
OTHER incidents of therapeutic jurisprudence have ended in tragedy, as when DeKalb County Superior Court Judge Cynthia J. Becker let soon-to-be murderer and serial con man Shamal Thompson walk free instead of imposing the mandatory ten-year sentence required for his burglary conviction. The judge was impressed by the “beautiful designs” on a bridal gown website Thompson claimed as his own. So she released him back onto the streets, apparently placing his artistic ambitions and self-esteem over the burglary victim’s experience or Thompson’s prior record or Georgia’s very clear sentencing law (there is no word yet on whether Becker will face consequences for refusing to assign the mandatory sentence in that case).
In an horrific irony, Becker’s inattention to Thompson’s criminal history enabled him to murder Emory cancer researcher and bride-to-be Eugenia Calle, in cold blood, in her apartment, when he should have been in prison.
Any survey of the criminal records of murderers would reveal multiple instances of therapeutic jurisprudence enabling an escalation of violence, and finally, the most violent crime.
THE TERM “therapeutic jurisprudence” is not merely descriptive of a mindset: it is an academic theory and social movement with its own website and academic journals. The definition of therapeutic jurisprudence (searchable on the website) in criminal law (other types are mentioned) makes for lengthy but illuminating reading — illuminating not so much for its clarity but for its studious avoidance of admitting what it is: the latest effort to justify replacing incarceration with community-based rehabilitation as often as possible. One of the cornerstones of therapeutic jurisprudence theory is that the special relationship between the judge and the defendant — the quality of the communication between the two — can positively affect the outcomes of probation and parole. Here is how it is supposed to work:
[T]he judge might say, “I’m going to consider you but I want you to come up with a type of preliminary plan that we will use as a basis of discussion. I want you to figure out why I should grant you probation and why I should be comfortable that you’re going to succeed. In order for me to feel comfortable, I need to know what you regard to be high risk situations and how you’re going to avoid them or cope with them.
If that approach is followed, courts will be promoting cognitive self-charge as part and parcel of the sentencing process itself. The process may operate this way: “I realize I mess up on Friday nights; therefore, I propose that I will stay home Friday nights.” Suddenly, it is not a judge imposing something on you. It’s something you are coming up with so you should think it is fair. You have a voice in it, and presumably your compliance with this condition will also be better. [footnotes excluded]
Professor David B. Wexler, “TJ, An Overview”
Of course, it could be said that it was precisely “cognitive self-charge” that enabled Shamal Thompson to talk his way out of Cynthia Becker’s courtroom. Yet, apparently, it is still not enough that many defendants are able to bypass prison for therapeutic settings: their experience in the courtroom must be self-empowering as well.
WHICH brings us to the first Outrage of the Week, featuring an extreme form of community-based therapeutic jurisprudence and extremely unsettling over-valuing of the judge-offender bond. As the New York Times approvingly reports, some felons in Massachusetts may “choose between going to jail or joining a book club,” a choice, one would imagine, not so difficult to make (and made, one presumes, without input from the victim, who would surely choose differently). This is the landscape of fulsome judge-offender interaction:
In a scuffed-up college classroom in Dartmouth, Mass., 14 people page through a short story by T. C. Boyle.
Of the 14 people, a dozen are male. One is an English professor, one is a graduate student, two are judges and two are probation officers. The eight others are convicted criminals who have been granted probation in exchange for attending, and doing the homework for, six twice-monthly seminars on literature.
Professor Robert Waxler (Waxler this time, not Wexler), who founded the reading program, believes “[t]he stories serve as a mirror for everyone, not just the offenders — the professors, the probation officers, the judge.” On cue, the New York Times reporter raves: “[t]he average court official is more literate than the average convict, but not necessarily more literary: for the judge, too, classroom discussion can be a revelation.”
She cracks the following joke:
Led by literature professors, the program has brought thousands of convicts to college campuses even as the withdrawal of Pell grants from prisoners (who were ruled ineligible for federal college financing in 1994) drove a wedge between the two state-funded institutions where young adults do time.
Get it? Being in college is like being a felon. Especially if there are thousands of them on your college campus, I suppose.
She cracks another joke:
Picture “Remembrance of Things Past” as a literary ankle bracelet that keeps you chained to the desk for months.
Before admitting this:
It’s easy to dismiss the program as utopian, or worse. Waxler reports being berated by parents paying college tuition for the same classes that felons receive free. If the program works, its economic logic is unassailable: running it costs roughly $500 a head, Waxler says, as opposed to about $30,000 for a year of incarceration. But that’s a big if. The most conclusive study, which shows program participants achieving half the recidivism rate of a control group, involved fewer than 100 people. More important, the literacy level needed to participate makes its population a self-selecting one, and even among those students with the skills to participate, many never make it to the final session. On the day I attended, one man missed class because his halfway house had imposed lockdown, another because a new conviction had landed him back in jail.
“ON the day she attended.” The program has been running since 1991, bringing “thousands of convicts to college campuses,” and the best they can do is a limited study of 100 offenders.
I wonder why. Perhaps because it’s best not to look too closely at these things.
“When it’s working,” Waxler says, “this discussion has a kind of magic to it.”