Kirsten D. Levingston is Director of Public Initiatives at the Brennan Center for Justice at NYU School of Law, and a former special assistant to the assistant attorney general for the civil division at the U.S. Department of Justice. Alan Jenkins is executive director of The Opportunity Agenda and former assistant to the solicitor general at the U.S. Department of Justice.
Celebrity wild child Lindsay Lohan is in hot water again, this time arrested for driving under the influence after she plowed her Mercedes into a tree along Sunset Boulevard. Officers investigating the crash found a substance “tentatively identified as cocaine.” Lohan’s reportedly since checked into a Malibu rehabilitation facility called Promises. The episode is the latest in a string of dangerous misadventures by Lohan revolving around expensive cars and, apparently, mind-altering substances.
For those who pay attention to such things (which seems to include virtually all of the news media and millions of Americans), reactions have ranged from loyal fans worried about yet another young starlet’s self-destruction to detractors who note that the rich and famous always seem to avoid real scrutiny from our criminal justice system. As parents, civil rights attorneys and former Justice Department officials, we think both of those sentiments are right, but incomplete.
Our justice system works best when motivated by the values of prevention, redemption and equality: protecting the public from unlawful and dangerous behavior, helping troubled people to reclaim their lives and ensuring that the law is applied fairly and evenhandedly. Our criminal justice system too often fails to fulfill those values, but positive change is within reach.
The United States leads the world in incarceration, but fails badly in rehabilitation. According to the Sentencing Project , over 2.1 million people are locked up in America’s prisons and jails—a 500 percent increase over the past thirty years. The number of Americans incarcerated for drug offences in 1980, 40,000, has skyrocketed to a half-million today.
These trends have been especially harsh for women. Since 1970, the rate of incarceration of women has increased more than twelvefold, and although about half of women in state prisons had been using drugs or alcohol at the time they committed the offense for which they were incarcerated, treatment for substance abuse remains grossly inadequate in our prisons and jails. Similarly, there is limited mental health treatment available, though nearly three-quarters (73.1 percent) of women in state prison in 2005 had a mental health problem, compared to 55 percent of men.
As our incarceration rate has grown, moreover, governments have adopted policies that limit the access of people convicted of crimes to student loans, jobs and the right to vote long after they have paid their debts to society. Together, these trends mean that staggering numbers of Americans are either behind bars or disabled from reclaiming responsible, productive lives after prison. Their substance abuse and mental health problems go untreated and, predictably, are often greatly exacerbated by life behind bars.
Research and common sense show that these punitive responses fail to prevent future crimes or provide rehabilitation, while wrecking lives and devastating families. Seven in 10 women enmeshed in the criminal justice system, for example, have minor children to care for.
At the same time, the system is unequal in its administration. Although African Americans and whites use illegal substances at about the same rates, African Americans are far more likely to be incarcerated for drug offences. Between 1990 and 2000 the number of African Americans incarcerated in state prisons for drug offenses increased by over 80 percent to 145,000, a number that is 2.5 times higher than that for whites. Affluent whites like Ms. Lohan are far more likely to be let go with a warning, to avoid prison time, or to avoid criminal scrutiny at all. Their substance abuse problems lead them to places like Promises, not the penitentiary. Race and class, then, play a powerful role in determining the consequences of unlawful behavior.
But what’s the solution? Celebrities like Lindsay Lohan are often in and out of rehab, and yet their behavior seems to go unchecked until tragedy strikes. Poor women and women of color are increasingly relegated to overcrowded prisons that do not treat substance abuse or other underlying problems, and do not prevent future crime. The unequal treatment of people based on race and class violates our values and Constitution, and undermines the public’s faith in the justice system.
Fortunately, a cluster of emerging policies from around the country offer promising solutions to these problems. The best of these impose real consequences for people whose substance abuse involves dangerous behavior, while providing effective treatment and help in rebuilding troubled lives.
An encouraging example is the Kings County Drug Treatment Alternative-to-Prison (DTAP) program in Brooklyn, New York. DTAP is recognized as one of the nation’s most successful diversion programs. Designed to “reduce drug abuse, improve public safety and save money,” it provides substance abuse treatment under a “deferred sentencing model” in which participants must plead guilty prior to their admission into the program. Participants who successfully complete the program may withdraw their guilty pleas, and the charges against them are dismissed. Recognizing that “relapse is part of the recovery process,” DTAP includes a selective readmission policy for people making an effort who, nonetheless, stumble along the way.
DTAP graduates have a five-year post-treatment recidivism rate that is approximately half the rate for comparable people who served time in prison. And the diversion of the nearly one thousand DTAP graduates from prison represents over $38 million in economic savings to the government, as well as profound human benefits to individuals and families. Ideally, people should not have to cop to a crime before accessing the medical treatment they need, but DTAP’s results suggest Kings County is realizing its goals of public safety, recovery and savings.
Ms. Lohan’s state of California has a similar program, though it may be in jeopardy. Back in 2000, 61 percent of Californians voiced the desire to offer treatment over prison when they voted for Proposition 36, The Substance Abuse and Crime Prevention Act. Proposition 36 offers people convicted of first- and second-time nonviolent, simple drug possession the opportunity to receive substance abuse treatment instead of incarceration. The reform has shown positive results thus far, but Prop 36’s supporters are battling to ensure the state provides sufficient funding and heeds the public’s call for effective treatment. For example, last year the California legislature passed a law allowing judges to use “flash incarceration”—up to five-day jail sentences—to punish addicts when they have a drug relapse, despite strong evidence that such responses don’t help and may hurt recovery.
In order to be fair as well as effective, positive diversion and treatment programs must be available equally to all of our communities, irrespective of race and economics. Combining prevention, redemption and equality means ensuring that substance abuse treatment is available and affordable to all, before abuse problems lead to unlawful and dangerous behavior. It also means that people in Beverly Hills and Brooklyn, Hollywood and Compton, should receive the same treatment.
Further reforms are needed to ensure that racial bias does not infect any aspect of our justice system. Encouragingly, new leadership is emerging on this issue. In April, 13 former federal prosecutors and the Brennan Center for Justice at New York University School of Law released new guidelines for prosecutors designed to promote equal justice, improve public safety and increase confidence in the criminal justice system. According to Veronica Coleman-Davis, former U.S. Attorney for the Western District of Tennessee,
The guidelines provide a starting point for federal and state prosecutors to begin addressing the root causes of racial disparities in their own offices, in individual prosecutions, and in the communities they have sworn to protect.
Finally, we all have a role to play in keeping our young people and communities safe, healthy and productive. It can be hard to have compassion for the parade of stars and “celebutantes” who seem to have so much and appreciate it so little. But, as parents, we’re mindful that young people in particular need guidance and compassion, as well as a firm hand and meaningful consequences. Ms. Lohan doesn’t seem to have gotten that from her family and social circle, but there’s a realistic hope that she and others may get it from the justice system.
