The Outpatient Prison

The combination of effective sanctioning (swift, sure, minimum-dose) for probation and parole violations and close monitoring of offenders’ drug use and location could provide a large fraction of the social control provided by prison at a tiny fraction of the cost in money and suffering.

The latest issue of The American Interest carries an essay I wrote called “The Outpatient Prison,” arguing that the combination of effective sanctioning (swift, sure, minimum-dose) for probation and parole violations and close monitoring of offenders’ drug use and location could provide a large fraction of the social control provided by prison at a tiny fraction of the cost in money and suffering.

Comments welcome.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

14 thoughts on “The Outpatient Prison”

  1. The obvious fear, given our felony happy legislatures, is that anything that makes a larger population of 'criminals' affordable, will result in changes to the law which will make more things illegal.

  2. Corrections budgets are consuming a large and rapidly growing fraction of many State budgets. The increase in costs is less a matter of the legislatures making more things illegal than it is the legislatures mandating increasingly stiff prison terms and decreasing good-time practices and increasing parole eligibility requirements.

    The Republic party has marched under the Get Tough On Crime banner for decades. It's time for them to admit some things, like, making people fear each other is counter-productive. This isn't to say that there aren't bad people out there: there are. Fortunately, they tend to be rather less common than the the Republic party would have us believe.

    Another thing Republics need to admit is that prison is the place for people for we know we should fear. Generally speaking, it's not the place for economic crimes: fines and restitution work there. Some prison component is probably needed to make the point that we won't tolerate this behavior. I'll make an exception in this case for official corruption: from those to whom much is given, much is expected.

    Neither is prison the place for small-time drug dealers and certainly not drug users.

  3. It's reasonable to be concerned w/ the conflation of medical terminology & penological terminology here. Medicine & the criminal justice system are distinct enterprises, with different ends. Even if we accept that there are circumstances in which physicians may be justified, on strictly medical prudential grounds, in coercing or constraining patients – thus the men in the white jackets -, it's wrong & unhelpful to cast the coercion practiced by by the criminal justice system in medical terms. This is a complaint about language, & doesn't address the policies themselves.

  4. Mark,

    What will it take for us to turn a bunch of prison guards into the probation officers we'll need to make this work?

  5. K,

    Remember that magazine editors have a lot to say about article titles. Mark uses the term outpatient incarceration, but the term is introduced by way of analogy ("… you have what might be called 'outpatient incarceration'") rather than as a definition.

    You have to call it something, and "geographic restriction and drug testing" doesn't have that jeu ne c'est quois. If you doubt the importance of good names, remember Frank "Death Tax" Luntz.

  6. Dennis, I understand. It's a metaphor, editors intervene, etc. I don't imagine that Kleiman, on reflection, can't tell the difference between a medical or therapeutic worker, whose interest is in her patient's health & wellbeing, & a turnkey, who has other concerns.

    But this conflation is common. I thought Angela Hawken's (interesting) article on "behavioral triage" exhibited it. Without addressing the merit of her proposals or Kleiman's, there are good conceptual & historical reasons to be scrupulous about the distinction between medical & social-control interests. Language matters.

  7. Mark the Minimalist Mandarin (a complement, I assure you)! While the comment @1 does resonate, one really can't help but admire the concept of state interventions put in tension with a sort of elegant minimalism of approach; it's as "liberaltarian" as any system of punishment can be. This particular idea is very timely, given the ballooning cost of incarcerating huge portion of our population (California spends less educating it's children!). "Felony happy" though they may be, I'd bet that, it will be some time before legislators and judges start "creating" more felons simply because it's so "affordable". After all, since when does what's politically popular have to be fiscally sustainable?

    As to the concerns about the conflation of the social, medical, and the "criminological": I would think that, as causes of individual criminal behavior, these things are somewhat inseparable. Why would one, in modifying that behavior, choose to ignore any of these factors? This is not to say, their aren't ethical issues to be considered, but I can't see why they should be insurmountable. I should hope that, a part this solution would be the insuring that convicts have access to outside advocacy, as any patient/client should, beyond mere legal representation. Providing this becomes easier when, far less resources are being put toward the basic housing and security of inmates.

  8. Shmoe, medicine, & therapeutics generally, is a practical enterprise, w/ a prudential end in view. That end is (a circumscribed aspect of) the good of the patient, normally what's good for his health. (It isn't to make him socially tractable or to improve him morally or save his immortal soul.) I didn't say the criminal justice system shouldn't take into account knowledge of causes, incl. the biology of addiction & the technology of behavior modification. It should. But these things aren't medicine, & we can run into serious problems when we use medical language to describe schemes to control errants for the social good.

  9. But many of our jails and prisons have become (in part, in some cases like the LA County jail) replacements for the mental hospitals we closed under Reagan. In that sense, we are using the penal system as a very expensive and very badly structured medical system.

  10. In fairness to the monstre froid, the closure of mental hospitals predated Reagan. The fact that people w/ mental illness, who might better be treated (whether in hospitals or the community), are incarcerated doesn't mean they're incarcerated in order to be treated or just because they need treatment, or that they in fact do receive it. The fact that jails succeeded & are in some sense substitutes for hospitals doesn't mean they are a medical system, w/ the same purpose & function as one. Even – especially – if all physicians practiced in prison wards, & in order to get care, we had to produce not an insurance card but proof of criminal conviction & sentence, it'd be necessary to keep in mind the distinction: a penal system is not a medical system, & treatment for the patient's good isn't the same thing as control for the good of the neighbors.

  11. K: As I tried to say earlier, your concerns (which would seem to be, at their core, ethical concerns) are totally valid. However, I really don't see why they should stand in the way of Kleiman's proposal; if anything, they would usefully complement and augment this approach to jurisprudence.

  12. Canada's federal and provincial justice ministers tried 15 years ago to develop an 'integrated justice strategy', which recognized that large portions of the prison population are illiterate (i.e. an education problem) and a large portion are mentially ill (i.e. a health problem), so to reduce prison populations and demands on the criminal courts, one should invest in education and health care. The problems that impaired efforts towards a solution like this are:

    * education and health care budgets are already way higher than justice budgets (health care,though considerably cheaper than in the US as a percentage of GDP – while covering everybody – still approaches 50% of provincial budgets);

    * while we know that investing in early child care education and early intervention on mental illness improves long-term outcomes, it's hard to prove it with the certainty that the budget review offices seek;

    * lots of other things can intervene in the longish term to reduce or increase crime and incarceration rates – such as demographics, changing in sentencing policies, redefinitions of crime, etc.

    * investing today in these programs may produce results in 15 years – when all the politicians responsible for the choices have moved on and are not in a position to benefit, or more important, to claim credit for the good results. Few politicians see beyond the next election.

    At the federal level the Canadian government has moved on to a 'tough on crime' policy that would make knowledgeable Americans weep, being borrowed largely from the Reagan/Bush love of punishment. (While they are – or like to appear to be – tough on crime, they choose to ignore a clear ruling from the Supreme Court that they have a legal obligation to ask the US to return Omar Khadr from Guantanamo. So their attachment to the rule of law is less secure than their attachment to harsh laws and punitive sentencing. Some of us legal purists think that the rule of law is more important than punishing every last criminal.)

  13. 40 years ago, these kinds of measures (constant monitoring of position, regular drug tests, instant incarceration) were part of pretty much every scifi dystopia (and even some societies that were presented as fairly optimal). In some ways it's a measure of how badly we've screwed up the enforcement-and-incarceration system that they now look like really good ideas.

    I think, though, that we may have to do more thinking about what incarceration is before "outpatient" systems can be effective. We've already got people running criminal enterprises from prison while living in relative comfort, some with smuggled-in cell phones and computers. For people who can take on back-office or managerial jobs in criminal enterprises, location restrictions won't make much sense without communication restrictions as well. (The same will go double for the Motel Room idea once every kid's school books are on a tablet…)

  14. I'm reading Michelle Alexander's "The New Jim Crow" right now — chilling and dispiriting. I wish I could give every elected pol in America a copy of that and yours together.

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