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November 01, 2012 INTRODUCTION

To Incarcerate or Not to Incarcerate Is the Question: Our Judicial Role in Resolving the Mass Incarceration Dilemma

By Judge Stephanie Domitrovich

The question of whether to incarcerate or not is the Shakespearean-like question faced by sentencing judges as they determine the appropriateness of incarceration. After reviewing detailed presentence reports, the sentencing judge may consider many restorative justice factors ranging from accountability to rehabilitation. Whether the charge is petty or serious, judges do not take these sentencing decisions lightly, especially when guidelines make incarceration one of the options.

I can still recall a sentencing decision that I had to make early in my judicial career. I had taken the bench that day with a heavy heart knowing that I had to order an elderly fragile man to incarceration under the sentencing guidelines that required it, despite my attempts to locate exceptional or mitigating reasons to avoid incarcerating him. I indicated on the record that I had exhausted my search for alternatives to incarceration for this defendant who had a serious history of prior offenses.

As I expressed my concerns in open court, the elderly defendant looked up at me with a smile, apologized for interrupting me, and commented that he wanted to make me feel more comfortable in imposing this substantial incarceration sentence for a petty offense. As he explained, this was exactly “his plan”—for the court to sentence him to a long prison sentence. He explained how he had been in prison for armed robbery and other felonies for most of his life and prison became “his home.” Once he had been paroled after serving his lengthy sentences, he realized he could not survive outside prison. He was determined to return to “his home.” So he decided to commit another crime, this time a nonviolent one, which had enough prison time under the sentencing guidelines to send him away for the remainder of his life. He informed me about how he had actually chosen a nonviolent crime that he calculated would result in incarceration for the rest of his life. His plan included walking into the local diner, eating a meal for no more than $10 so the restaurant would not be financially harmed, and patiently waiting for the police to be summoned by the owner to arrest him for not paying for his meal. This defendant informed me that prison was the only institution he could call home; he considered it his future nursing home and reassured me that I needed, and he wanted me, to impose a lengthy incarceration sentence because, first of all, this was the law and, second, he wanted to return to his home, a state incarceration facility.

Despite his reassurances, I only felt a little more comfortable knowing he planned all of this. Something still made me uneasy. The concept that a person could become so accustomed to incarceration that prison institutionalized him was far too unsettling for me. His sentence appeared more painful for me to administer as a sentencing judge than for him to serve as a prisoner. Before taking the bench that day, I thought of myself as the unfortunate person to have been assigned this case. Shortly thereafter I realized this was instead a very fortunate experience for me because this defendant taught me an important lesson—how incarceration affects defendants and impacts our communities by increasing our prison population.

This Judges’ Journal edition on incarceration provides necessary tools to add to our judicial toolbox. Judges can benefit from reading the perspectives of authors who have written enlightening and inspiring articles about incarcerating and incarcerated defendants and the impact of incarceration on society. In this edition, our Waymaker has made a great difference in the lives of incarcerated individuals in her jurisdiction. The Honorable Norma Shapiro, a federal district court judge in Philadelphia, is renowned for her hands-on approach in resolving issues directly related to the treatment, care, and housing of prisoners in the Philadelphia prison system. For many years, Judge Shapiro oversaw the consent decree involving Philadelphia jails and met head-on the administrative challenges while presiding over extensive enforcement proceedings. Judge Shapiro successfully completed these awesome challenges despite intensive political pressure and scrutiny from the media. Judge Shapiro is a “judge’s judge,” long admired by her colleagues, law clerks, and assistants for her intelligence, warmth, generosity, and gusto.

In her enlightening article entitled “Inside Rikers: The Social Impact of Mass Incarceration in the Twenty-First Century,” Professor Jennifer R. Wynn provides valuable insight into the plight of prisoners incarcerated on Rikers Island and describes how and why our prison populations in our nation’s prison systems are ever expanding. Her article is a “must read” about the social impact mass incarceration has on all of us, especially as taxpayers and members of our communities. Professor Wynn provides valid statistical data as well as her own first-hand accounts with regard to the multidimensional mass incarceration problems that have resulted from the war on drugs where prisons are “overcrowded, understaffed, and under-resourced” and where medical care and treatment are insufficient to meet the ever-expanding prison populations. Prosecutors need to change their focus from punishment and instead target reducing recidivism. Professor Wynn emphasizes the need to have legislators and prosecutors explore more viable solutions beyond expensive get-tough, zero tolerance policies that have been proven unsuccessful in eliminating crime and ensuring public safety. She advocates a compassionate approach to mass incarceration such as returning discretionary sentencing authority to judges and eliminating mandatory minimum sentences, among other enlightening solutions in her article.

In her article entitled “Proportionality, Disparity, and Recidivism,” Federal District Judge Patti Saris, as chair of the U.S. Sentencing Commission, describes in detail her Commission’s efforts to ensure proportionality, combat unwarranted sentencing disparity, and secure and analyze recidivism statistics to improve the federal criminal justice system. Judge Saris specifically credits her Commission’s success to collaboration with many stakeholders, including the American Bar Association for providing valuable insight and perspectives at the Commission’s hearings.

Professor John Kramer describes the divergent goals and pathways undertaken by the Pennsylvania Guideline System versus the Federal Guideline System and how one system was constructed to rely on judges to structure fair sentences while the other system “viewed judges as the source of the problem.” Professor Kramer details the research undertaken to complete these sentencing guidelines and provides examples and illustrations of how measures for offenses were calculated.

Deputy Attorney General James M. Cole in his article describes the scope, impact, and unacceptability of our nation’s high recidivism rate and how the Department of Justice is currently engaged in building and improving outcomes resulting from prisoner reentry programs and policies. Deputy Attorney General Cole emphasizes the important role the judiciary plays in the success of these projects through the judiciary’s establishment of reentry and problem-solving courts. He describes the valuable insight derived from evidence-based initiatives concerning data and research that can “smooth the path toward reintegration.” He extols the benefits we can derive from his Department’s continued collaboration with judges, policymakers, prosecutors, defenders, members of the private bar, law enforcement, and other community stakeholders who continue to compassionately believe in formulating inclusive outreach and response plans to “disrupt destructive cycle of recidivism.”

In her article, Judge Brenda Murray explains the important prison work conducted by judges who comprise the Women in Prison Committee of the National Association of Women Judges (NAWJ). These judges are involved and committed to improving the lives of incarcerated females by arranging for their participation and attendance at seminars, book club/writing sessions, holiday programs, panel discussions, and conferences. These judges believe in equal treatment for prisoners with care being given to the particular situation of incarcerated women who are entitled to have adequate health care, humane prison childbirth that would be free of any shackling and restraints, visitation at the prison with their children, and the right to participate in a fair share of correctional training funds.

This edition on incarceration promises to provide judges and other community leaders with the necessary tools to make a difference in their communities. These authors explain the vast efforts of various entities to provide viable solutions to meet the ever-growing prison populations in our nation and the necessary role the judiciary must play by continuing to collaborate with community stakeholders in pursuing research and evidence-based initiatives to lessen mass incarceration growth in our nation’s future. We, as judicial leaders, should be open and available to implement those solutions. We must carve out better pathways for the reentry of those who have been incarcerated in order to reduce mass incarceration rates in the future. We must continue to raise awareness among our constituents and other stakeholders about the vital issues surrounding incarceration and eradicate the impact that prison conditions have on the inmates as well as their families and society as a whole. As discussed by this edition’s authors and our Waymaker, society relies on the judicial branch to implement ways to halt our ever-expanding prison populations. By implementing the tools in our toolboxes, we can carve pathways in our communities to construct the necessary reentry bridges for prisoners to lead healthier and safer lives in our communities. We can collaborate and apply these authors’ suggested solutions. We can make a difference.

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By Judge Stephanie Domitrovich

Judge Stephanie Domitrovich has served on the bench for over 21 years as an elected general jurisdiction state trial judge for the Sixth Judicial District of Pennsylvania. She is also chair of the National Conference of State Trial Judges.