It's A Gray Area: Incarceration is not always the best option

One thing that starkly sets the United States apart from other Western industrial countries is our incarceration rate. Today our country has more than 2.3 million people in jail or prison, which means that, with about 5% of the world's population, we have 25% of its prisoners.

In the years 2006 to 2008, which are the latest dates for which statistics are available, the U.S. led the world with 753 people incarcerated for every 100,000 members of our population. Russia was next with 629, followed by Rwanda, Cuba and Belize with 593, 531 and 476, respectively. So look at the company we keep. The five countries with the lowest incarceration rates were Iceland, Japan, Denmark, Finland and Norway, with 44, 63, 66, 67 and 70, respectively.

These statistics mean that one of 99 adults in the United States is either in jail or prison. And for black males it is even worse, with one in nine being incarcerated. Faced with numbers like these, people of every political persuasion are beginning to understand that punishment for the sheer sake of punishment doesn't work.

Besides, we can no longer afford it.

Generally, there are four different kinds of people who are put into jail or prison. The first group is made up of violent offenders who have shown themselves to be a continuing threat to our safety or property. These people should be removed from society until that threat has been materially reduced.

The second group consists of people who have been charged with offenses but are considered a risk because they may not to appear for their trial. Depriving people of their freedom before they have been convicted of an offense is a serious thing to do, but sometimes it is necessary.

The third group consists of non-violent offenders who personally need to be shown that everyone must follow the rules. In other words, they need to be deterred from further violations of law. And the fourth group consists of people such as Martha Stewart, who are punished as public examples so that others are deterred.

It is the vastly large number of offenders in the third group who are filling up our jails and prisons, and this is where some basic changes in approach must take place. For most of these people, short periods of time in jail, such as three to 30 days, will accomplish whatever positive purposes that can be accomplished.

But after this "taste of jail," many of those offenders should be placed into a program of strict probation. This would be a highly regimented program in which they could be required to look for and obtain employment, and then make regular restitution payments to victims.

Once restitution is being made, lots of good things start to happen for everyone involved. The offenders see how hard it can be to pay for the damages they caused, so they don't want to put themselves into that position again. The victims get both some psychological satisfaction by receiving the restitution, and also the benefit of seeing their insurance rates come down. And the taxpayers don't have to pay so much to hold the offenders accountable.

Of course, if the offenders don't comply with the program, they can be put back into custody for longer periods of time. But even this is helpful, because those folks can serve as a bad example to others.

One of the conditions of probation can also be the requirement to wear an electronic monitoring device that will report the offender's movements and locations. This has many positive results, because, for example, it can keep alcoholics away from bars, sex offenders away from places where their victims would be found, and gang members away from their former colleagues.

The cost of these devices is only a few dollars per day, while the average cost in California of incarcerating one inmate for a year is $50,000. And if the inmate is sick or elderly, the cost can be several times that amount.

More than one-fifth of the prisoners in California are being held for drug offenses. And since there now is very little effective drug treatment in prison, their recidivism rate after they are released is high. But if drug offenders could be placed in an outpatient treatment center with a monitoring device and on probation, they would have a much better chance to be crime-free, and at a much lower cost.

Furthermore, estimates are that about 30% of the people in the third group are mentally ill. This makes the local jails the largest "mental health facility" in most counties. Imagine the harm that is being done daily to these mentally fragile people due to that incarceration. And similar harm is also being inflicted upon the taxpayers, because incarceration is by far the most expensive option available.

Of course, many politicians posture by arguing that their legislation promoting things like mandatory minimum sentences, three-strike laws and enhancements for gang affiliation have kept our communities safer.

But the surety and swiftness of punishment is much more effective to reduce crime instead of the slowness and random severity of it. And besides, now our governments simply don't have the money to continue to pursue this course.

Texas recently reduced its incarceration rate by 8% by implementing programs of drug courts and treatment facilities. Crime went down 6% and the state saved $2 billion in prison construction costs. Pretty good results!

Today there are tens of thousands of people in California alone who simply should not be there. Some of them, particularly many of the old and feeble, should be released. Many others should be placed on a program of strictly enforced probation, often with a monitoring device and requirements for drug or mental health treatment and the reimbursement of their victims. We have the results and statistics to justify making those changes, what is lacking is the political will.

JAMES P. GRAY is a retired Orange County Superior Court judge. He lives in Newport Beach. He can be contacted at

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