Criminologists talk a lot about the pendulum swing between “tough on crime” strategies and those that rely more on human services than punishment. These swings are evident in legislation, and other policy measures. We are seeing it now at the Vermont Statehouse: a swing back to the “tough on crime” approach. Being tough on crime means a few different things. On the surface, it seems like a reasonable response; of course we don’t want to be “tolerant” of crime. But what it means in practice is costly laws passed in response to (understandably) fed-up and worried constituents, without sufficient thought to the long-term consequences, and more importantly, what the existing evidence-base shows to be effective.

I appreciate the constituents’ worries and the legislators’ desire to be responsive. But there is clear evidence that as states increase investments in criminal legal apparatuses, they reduce investment in human services/welfare. And naturally, as we divest from human services, and funding that would raise those most in need, we see more social problems in the form of houselessness, untreated mental illness and substance use disorder.

Of course we have these acute problems; we have followed the recipe for just such a result. It is certainly not for a lack of sticks.

We tend to default to criminal legal responses, in part, because legislators and other smart people often conflate correlation with causation. For example, people say “when there were more police, we had less crime.” Yes, but what other changes are going on that are contributing to the problem? We have record-breaking rates of houselessness, severe mental health impacts (especially post-pandemic), and an influx of intense drugs such as fentanyl and xylazine. Would anyone suggest those are due to a lack of sufficient police presence?

At the same time, we have a court backlog that has not recovered since the pandemic. Approximately one-third of those sitting in our Vermont correctional facilities are detained while waiting for their trial (which will most likely not be a trial, but a plea bargain ultimately). Some will wait a couple of years for their day in court, and that is unconscionable. At the women’s facility, half are detainees. The legislation being proposed now in H.534 is to make repeated misdemeanor retail thefts into felonies. There are other similarly reactive bills pending, hoping to impose greater consequences on those engaged in repeated, problematic behavior. And yet some people are certain that increasing that burden is the answer to the retail theft problem. If we zoom out, though, we would see that this will:

  1. Increase the already unacceptably long court backlog
  2. Increase the numbers being detained, and for longer periods (which are already unconscionably long)
  3. Increase the likelihood that people will commit crimes when they get out

Yes, that last one is true. Think about it: a person is committing multiple crimes because of poverty, or a substance use disorder. Holding them for a year or two waiting for court does not address the root causes of their criminal behavior. They would lack access to services, and in the end, have a felony conviction that impedes their ability to get housing or employment. They will likely lose whatever stabilizing forces they have. Research shows that as little as a week in jail can have detrimental effects on those detained. Moreover, it is a very expensive way to house someone waiting for trial (for instance, north of $80,000 per year per person!). How does this help us?

As stewards of our public funds, and powerful actors implementing change that affects real peoples’ lives for decades to come, I wish that legislators were required to provide evidence that their policy changes should work to improve long-term outcomes. Otherwise, I wish they would tinker less with the criminal-legal system.

I understand the impulse to do something urgently. But as the saying goes: “hard cases make bad laws.” When we make enduring policies while in a reactive state, we shoot ourselves in the foot. The governor has said we need more “sticks” in the criminal legal system, suggesting that we have more carrots than sticks. I don’t know what carrots he is referring to, but we have plenty of sticks. Besides, sticks do not work. The idea that punishment reduces crime is a long-held myth.

Consider this: the U.S. incarcerates more people (a greater percentage of our population) and for longer than any other country in the history of the world. If punishment worked, we would have the safest society in the world! Yet, we do not. It’s because we do not address the underlying issues that drive crime, such as poverty, trauma, isolation, substance use disorder and mental health disorders. Instead, we decrease funding for subsidized housing, community-based mental health care, and long-term treatment facilities consistently for decades. Of course we have these acute problems; we have followed the recipe for just such a result. It is certainly not for a lack of sticks.

I hope the legislature will take a breath, consider funding the services we desperately need: more court personnel (including public defenders), more mental health service options, and more drug treatment options, rather than creating even greater barriers and making problems worse and in a less humane manner.

— Kathy Fox, Professor of Sociology, University of Vermont.

The views expressed here do not represent the views of the University of Vermont

Call to Action

Call Governor Phil Scott’s office (802-828-3333) and tell them that you oppose expanding penalties and incarceration, and in favor of expanding supports for housing, mental health care and addiction treatment as strategies to keep our communities safe.

Contact the House Judiciary assistant at Ask her to tell the committee you oppose H.534

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