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Justice Reinvestment or Return To Mass Incarceration?

Posted by Alex K. Kriksciun | Sep 14, 2017 | 0 Comments

It's been awhile since I drafted a blog post.  My apologies, I've been extremely busy over the past month or so.  But, I'm back, so here we go:

As previously discussed in this blog, Louisiana is currently the incarceration capital of the United States.  The United States is the incarceration capital of the world.  I guess, according to the transitive (?) property, that makes Louisiana the incarceration capital of the world.

And as discussed in my last post, Louisiana made some pretty big changes to its criminal justice system during the last legislative session.  What I didn't mention in my last blog post is that these changes are being made under the guise of what is referred to as “justice reinvestment.”  The idea is that after the law changes, the state will be incarcerating fewer prisoners, which saves the state money, which allows the state to reinvest a portion of that money into community-based solutions designed to reduce crime, which results in incarcerating fewer prisoners and saving more money, and on and on and on.

It's a political issue that many politicians from both sides of the aisle have been able to support.  From the perspective of my friends on the right who want to be “tough on crime,” they can point to saving money by incarcerating fewer people as a benefit.  From the perspective of my fellow lefties, we can point to issues of social justice and community renewal as being issues we can get behind. 

Justice reinvestment has been a popular movement across the country.  As implied above, it also is one of those few political issues that both right and left seem to be able to agree on in these divided times.  The justice reinvestment movement began about ten years ago and has spread relatively uniformly across the country.  Even the term “justice reinvestment” is designed to be a palatable one.

Unfortunately, President Trump does not seem to be a fan of justice reinvestment.  Although I cannot understand for the life of me somebody could be in favor of more civil asset forfeiture, Trump is a fan of this as well.  Trump's feelings on the matter are reflected in the opinions and policies of his attorney general, one Jefferson Beauregard Sessions, III.  I'm pretty sure that was the same name as a character in Gone With The Wind, but I digress.  

Jeff Sessions has made his policy regarding these issues well-known.  The clearest example of this occurred when he instructed all of the United States Attorneys throughout the country to charge defendants that would expose them to the maximum amount of jail time.  The federal criminal laws are lengthy and byzantine.  There is also a fair amount of overlap.  What that means is that one course of conduct could be charged under two (or more) federal criminal statutes.  Say, for example, a major drug dealer tries to conceal the true source of his ill-gotten gains by buying chips at a casino, playing a couple hands of blackjack, and then cashing in his chips.  That could (and in most cases, probably would) be charged as money laundering or something close to it.  However, the feds might be able to charge other offenses such as conceal conspiracy to conceal drug proceeds, illegally structuring financial transactions, or some other law.     

What Gen. Sessions has told his underlings to do is to find the law that applies to the case with the most potential jail time and charge that offense.  I can assure you that this is a significant deviation from the usual policy. 

It also does not make a whole lot of sense to me.  I have never actually been a prosecutor, but if I were, I would think that I would I want to charge my “best” offense, not the offense that carries the most time.   If somebody commits a crime, it is the prosecutor's job to see that justice is done.  That can mean a whole lot of different things.  It can mean trying to get a defendant into drug court.  It can mean ensuring that a defendant is enrolled in diversion.  Most of the time, it means prosecuting the defendant until the conclusion of the case.  What it absolutely does NOT mean is intentionally charging an offense that carries the most jail time.  To me, that seems petty and vindictive.  The policy is also fundamentally at odds with the justice reinvestment trend. 

I'm sure that some people will disagree with me on this, but this is what I believe: American society as a whole (i.e. the majority of the populace) is moving in the direction of focusing correctional efforts on more serious offenses.  To me, that means several different things.  First, we are less willing to lock up non-violent offenders for long periods of time.  Second, we are more willing to look towards alternatives to prosecution and incarceration. These alternatives can include such things as diversion programs and other pre-trial intervention, treatment programs, and specialized courts (DWI court, veterans court, mental health court, etc.).  Finally, we are less willing to spend the money needed to incarcerate individuals for non-violent crimes. 

On that last point, I hear people all the time call for heavy terms of imprisonment and then express surprise or disdain at the amount of money spent on corrections.  Often those same people wonder why prisoners supposedly get multiple creature comforts, eat like kings, and have a grand old time in prison.   Two things to note here:  I can assure you that prisoners in the Louisiana Department of Corrections do not have creature comforts, do not eat like kings, and do not have a grand old time.  There's a reason a DOC sentence is served “at hard labor.”  Some facilities, like the Louisiana State Penitentiary (Angola) are actually working farms.  In all facilities, the inmates work and they work hard.  More importantly, you can't have it both ways.   Saying that you are in favor of stiff and strict sentencing and then complaining about the cost of housing more inmates is akin to having your cake and eating it too.  The Constitution requires a certain level of minimum standards that must be adhered to in prisons. 

Here's hoping that this trend reverses course in the future.  Until then, feel free to call the Law Office of Alex Kriksciun at any time!

About the Author

Alex K. Kriksciun

Attorney at Law/Notary Public Alex K. Kriksciun has devoted most of his legal career to defending the rights of people accused of crimes and the rights of people harmed by the negligence of others.  Whether the case involves a municipal citation, a life imprisonment without parole case, a wrongf...

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