The tremendous increase in the rate of incarceration that has occurred over the past forty years or so strongly indicates more crimes are happening. There are many insightful explanations for the increase, but none exclude the possibility that more crimes are occurring.  This is the first in a series of essays in which I explore some of the implications. In an earlier essay, I suggested that there is no “cause” for crime. There is a cause for proper behavior. The cause for proper behavior is adequate moral formation.  I also pointed out that the traditional family that was the traditional beginning point of moral formation, and that the breakdown of family cannot help but have impact on moral formation and ultimately on criminal activity.  All of this background information points to an additional counterintuitive point: the solution to crime will not necessarily result from the expansion of law enforcement agencies or spending more money for law enforcement.

And while the escalation of crime may be associated with family breakdown, the answer to crime does not lie in an attempt to rejuvenate the traditional family by forcing parents to live together unwillingly.  In my career as a judge, I believe that I saw instances in which moral formation happening in reverse. The actions of an abusive father and an immoral mother seemed to result in children whose conscience was plugged in backwards.  They could not feel good about themselves unless they were doing something bad!  Ironically, some good scholars actually contend that such childhood circumstances should be considered in mitigation of the sometimes terrible acts that individuals produced in such environments do.

In addition to family, the peer group is very important in moral formation.  After infancy, children develop and mature in relationships with people other than immediate family members. As children grow older, their peer group plays a larger and larger role in their moral formation. Inevitably, this means that community and the peer group are extremely important in determining whether individuals will engage in criminal activity. Like poor parenting, a bad peer group can certainly result in something less than desirable moral development.  Who the kids hang out with makes a difference.

The place where most individuals encounter the peer group is in school and the educational system. That is often where children meet other children with whom they will develop relationships.  I met my wife-to-be in the first grade. And the schools themselves clearly have an important role to play in moral formation. The learning process plays an important role in moral formation. The prisons are filled with individuals who have performed less than adequately in school. Often illiteracy is a problem and clearly there is a positive correlation between lack of linguistic skills and criminal behavior. But schools cannot completely provide the values, and emotional attachment to values that need to be instilled by family, church and community in general.  Moreover, interactions with other students—the peer group—is just as instrumental in moral formation as interaction with teachers.

The important point in this discussion is that family, church and community must build moral citizens.  That is ultimately the only answer to crime.  Only by reinforcing the values that were traditionally instilled by caring parents, and by surrounding developing children with a community that cares, and that will instill positive values, can we hope to overcome criminal behaviors. Church and religious groups have a strong role to play in this process. It is a role that religion has played in the past, and religious organizations need to become very intentional about the matter. In a sense, the increased rate of incarceration represents as much failure on the part of the church and religious organizations as on the part of law enforcement courts. It is not enough for the church and community to condemn evil, and commend the work of law enforcement.  The traditional role of the Judeo-Christian heritage has been the advancement of positive good, and creation of strong citizens.  The condemnation of evil does not solve the problem and bring the solution.

The basic premise of this essay is that we must find positive ways of dealing with all of the individuals in our society. A caring community that supports families, churches and schools is the ultimate answer to the problem of crime. That support must be imbedded in the structures of the community, and must be intentional.  Strong, honest law enforcement is very important, but it is not the answer to the increase in criminal activity, and greatly increased rate of incarceration. No amount of emphasis on law enforcement and incarceration will provide a meaningful solution to the problem of crime.  We actually must “accentuate the positive” if we are to “eliminate the negative.”  We’ll develop further ideas imbedded in this initial essay in this series of essays.

In the two preceding essays I suggested that the principle cause of crime is inadequate moral formation, and that spending money on law enforcement and penitentiaries does not solve the basic problem. In this essay I explore social dynamics that underscore these two points. Let’s start by saying that crime in general is not the product of brilliant minds. A great contest between extremely intelligent criminals and equally intelligent law enforcement officers makes good movies and TV, but we are not filling the prisons with a lot of smart people. Statistically, the court system processes people who are below average in intelligence and below average in skills.  Basically, our penitentiaries warehouse ignorance.  Let’s examine why that is the case.

In our social system everyone is required to make some contribution to the welfare of society in order to make a place for themselves. “Whoever does not work, neither shall he eat”. That ancient principle expresses both economic and social truth. After Adam Smith invented modern economics we began to assign value to commodities. The Industrial Revolution started the process of making every individual a unit of production in society.  Then came the age of technology where even greater mental skills were required in order to be a productive member of society. Education became a necessity. Graduation became the rite of passage to the world of useful adults. Salaries reward skills and knowledge. It was inevitable that human beings would be assigned an economic value. A certain percentage of human beings do not have as much “economic value” in an industrial, technological culture as others. They are “worth less” but too often that translates “worthless.” Many of these unfortunate individuals wind up in the penitentiary. And the penitentiary is not likely to cause them to “be all they can be.”

The simplistic solution “We should teach them to read” is not a satisfactory answer. Not everyone has the same talents. The thing that makes a person a highly productive unit in society is the fact that he or she possesses the ability to acquire the necessary skills. The same thing that makes them unable to read is the thing that causes them not to have great economic value.  If a person lacks ability, then the outlook is not real bright. The inability to read and lack of economic productivity result from the same underlying cause. Encouraging everyone to learn to read and to attain as much education as possible is a wonderful idea, but falls short of solving the problem for individuals who are “worth less”.

While the assignment will be quite difficult, society needs to recognize that God did not make any trash. We need to recognize that every person has worth, and we need to search for ways to help every person to achieve that worth. We need to find their strong points. We need a legal system that allows everyone to achieve his or her most beneficial station in life. That was the thought expressed by Dr. King in his Letter From the Birmingham City Jail.  We need group functions that promote individual achievement for those who are “worth less”. The task will not be easy. In the scheme of Lev Vygotsky the great Russian Psychologist, we need to find their zone of proximal development and help them to achieve their potential  The solution does not include sending ignorance to the penitentiary, but neither does it include rewarding the commission of crime by giving the person who committed crime greater educational and training opportunities than is provided to the general population.

Perhaps the answer lies in a system that identifies persons who are likely candidates for criminal activity before they commit crime, and provides special opportunities for them, not as a reward for committing crime, but that provides opportunities before crime happens. We have to intercept the problem before the crime occurs. My friends in the teaching profession tell me that it is probably not difficult to identify the likely candidates. At the same time, the difficulty will be identifying those candidates without stigmatizing them. Finding a totally positive approach is the challenge.

Ultimately, the laws of economics—supply and demand—operate on what human society believes to be important.  If we think that money is the ultimate good, then the laws of economics will govern and be based on the demand for money.  If we truly believe that every human being has intrinsic worth, the laws of economics will govern our lives together based on human worth being our most important value.

Reworking our value system is a task for churches and religious organizations.  “I was in prison and you visited me…”  But let’s not wait until the visit has to be in prison.  “Even as you have done it unto one of the least of these….”

In other essays in this group, I discuss the breakdown of the family and the impact of family breakdown on moral formation. I suggested that inadequate moral formation is the root cause of crime.  I suggested the possibility that the breakdown of the family has damaged its role in moral formation and that has contributed to the escalating rate of crime and incarceration. I have also discussed the important role that the peer group plays in moral formation and the fact that usually the “peer group” is found in schools, churches, families, and other community organizations. Those organizations help to build good citizens, but not all peer groups are helpful. I have pointed out that an economy that assigns economic value to individuals based on skills place a low value on individuals with poor skills. These individuals will ultimately be deemed “worthless”.  According to one study, in the prison population, the average full range IQ is 92, (low average) with linguistic skills being even lower. So, in this essay, I will discuss the role of penitentiaries as a solution to crime, and the prospects are not good.

The modern prison system originated in Philadelphia in the early 1800’s. The idea behind penitentiaries had a somewhat theological basis. The idea was that individuals are born with a conscience and that if, after committing a crime the individual is given time to think about his or her inappropriate behavior, he or she will become penitent. Hence the word penitentiary.  The thought ran, we will isolate them from society and give them time to think about their criminal activities. Given time to think about it, they will repent. The idea of penitentiaries that would rehabilitate criminals quickly spread and became an established part of our criminal justice system. Those ideas are not consistent with what we know about human development and moral formation.  Even though the underlying theory was doomed to failure, penitentiaries were accepted as a way to remove the criminals from the street and to make the world a safer place to live. From the vantage point of the non-criminal population, it seemed like a good idea.  Out of sight, out of mind.

There are significant problems with this approach. First, the approach ignores the real basis of moral formation. Morals are instilled by family and peer groups. What are we doing when we take all of the bad guys and put them at the same location? Who is the “peer group”? What are the chances that the original theory of penitence will work in that environment? Instead of an institution in which individuals become penitent, we are creating a graduate school for inappropriate moral formation. Just as the abusive father and immoral mother install the conscience backwards, the penitentiary peer group will move individual development in the wrong direction!  At the end of the sentence, we send these individuals, who were probably economically handicapped to begin with, and with the stigma of penitentiary even more economically handicapped, back to the street.

The cost of penitentiaries is spiraling upward. The rate of incarceration in the United States remained constant from 1924 to 1964, but, over the past 50 years the rate has greatly escalated. The cost is very high. I suspect that the cost of maintaining our prisons is greater than the cost the State of Alabama pays for all its efforts in higher education. The spiraling costs and overcrowding creates pressure for early release, and the rate of recidivism is high.

The problem with incarceration of large numbers of people in penitentiaries is that although it is a very expensive burden for tax payers, it is not an effective solution to the problem of crime. Solutions to these problems is not at all easy or obvious. Intuitively, it is clear there has got to be a better solution to the problem of criminal conduct other than assembling all of the criminals at a mega-prison. The Alabama Department of Corrections is a law unto itself, and is the way its officers and employees make a living.  They are skillful at playing the State off against the Federal Courts and overcrowding, and prospering economically as a result. The system lobbies to perpetuate itself.  The problem is the system and the solution must be a system founded on proper moral formation. We need intervention at a many earlier stages in the moral development of the individuals who are likely candidates, or likely to become candidates for incarceration. Although the traditional family has broken down, we need to be very vigilant in attending to the moral formation needs of the very young. We need to find training programs so that those persons who are not talented in the ways of traditional education can nevertheless, find meaningful activity in which they make a meaningful contribution to society. They need to be appreciated. Incarceration in a central penitentiary needs to be a last resort.  Needless to say there are hardened criminals who need to be locked up for long periods of time.  But for others, we need to find better local, non-centralized penitentiary solutions.  Local communities need to take a stronger interest in dealing with the problem. To make probation more successful, during my tenure as judge, I worked hard to promote a concept of probation sponsorship. I describe the probation sponsorship program in more depth in another essay in this group. But the next essay deals with the disproportionate rate of incarceration of the black race.

Sometime after William the Conqueror successfully invaded England in 1066, the new line of kings decided they needed help rounding up local criminals to prosecute. Accordingly, they organized groups of local citizens who could keep up with what was going on in the local area to report crimes to the king and whenever his court visited the town. That was how grand juries to started. The process continued to evolve, and prosecutors began to utilize the grand jury to bring about indictments.

After the successful American Revolution, the United States and the newly organized states imported the grand jury idea into the American Justice System.  The antiquated practice that only grand juries can issue indictments for felonies in Alabama and a few other states. Unlike the community watch function of the original grand juries in England, the current system pulls citizens out of their busy lives to sit and basically rubber-stamp the wishes of prosecutors. Law enforcement investigates crimes that have been reported, and the District Attorney presents cases to grand juries. Very seldom does a grand jury take any initiative of its own in the identification and prosecution of crimes. Very seldom do they depart from the recommendations of the District Attorney. Only the prosecuting authorities usually present evidence to a grand jury. There is no “defense attorney” involved. If no indictment is returned, the prosecutors can always report to those who were anxious for there to be a prosecution that “the grand jury failed to return an indictment” even though they know that there was insufficient evidence, and likely recommended that the grand jury “no bill” the case.  And if the indictment is unpopular, the District Attorney blames the indictment on the grand jury.  That is a convenient political tool. 

Grand juries were abolished in England in 1933, over eighty years ago. Only Alabama and a few other states continue to require an indictment by a grand jury to commence a felony prosecution. Grand juries are a colossal waste of citizen’s time and of tax payer’s money. It is time for the state of Alabama to join with the majority of other states in abolishing grand juries. By abolishing grand juries and having the District Attorney simply takes the responsibility (which is already the case, in fact) of deciding who will be prosecuted and commences the prosecution. Elimination of grand juries would eliminate a lot of inconvenience to a lot of people. Alabama should eliminate the imposition on victims, witnesses and jurors. It would be a simple matter to authorize prosecutors to commence the prosecution on their own initiative. That happens in most states, so there are plenty of examples of appropriate legislation.

One of the many advantages of doing away with grand juries is that it could materially speed up the criminal justice system. There is no reason to wait for a grand jury to convene for a criminal prosecution to be commenced. In many rural Alabama counties, grand juries are convened only twice a year and this means that the commencement of the prosecution is often delayed for months.

Another great advantage is that it would simply process for victims and witnesses.  The current system of criminal justice is an obstacle course for victims and witnesses. First, there is the possibility of a preliminary hearing. The purpose for the preliminary hearing is to determine whether there is sufficient evidence to bind a case over to the grand jury. At least, theoretically, that is the basis for a preliminary hearing. As a practical matter, the usual function of a preliminary hearing is to allow the defendant to explore evidence that the state is offering in support of prosecution. But in any event, the victim and witnesses have to appear if there is a preliminary hearing.  Then there is the grand jury proceeding. Again, the victim and witnesses must appear and give their testimony. And then  they must testify a third time at trial.  To require victims and witnesses to appear in court three different times is just not necessary.  And there is no disadvantage to defendants: the grand jury proceedings are secret proceedings and the defendants don’t necessarily know about them and seldom participate in them.

Law enforcement officers involved in the criminal prosecution, of course, have to come and testify at preliminary hearings, grand jury and trial.. Prosecutorial time and talent is wasted on the non-profitable preliminary requirements.

It is time for Alabama to join with the majority of the other states in the union and do away with the necessity for grand juries for the commencement of felony prosecutions. Surprisingly, with all of the emphasis on the need for a more effective budget and for the many complaints about the ineffectiveness of the criminal justice system, I believe that I am the voice crying in the wilderness in Alabama concerning this waste of time and resources on grand juries.  Preservation of some role for the grand jury in the investigation of the misconduct of public officials and governmental functions might be appropriate.