Asked and Answered John Nussbaumer on Incarceration in America

By Steve Thorpe

Legal News

During a recent U.S. House subcommittee hearing Supreme Court Justices Anthony Kennedy and Stephen Breyer said that the American criminal-justice system is too harsh, locks up too many people for too long and does so at an ultimate cost to public safety. John Nussbaumer is a professor at Western Michigan University Cooley Law School's Auburn Hills campus, and has taught Criminal Law and Criminal Procedure for more than 30 years. During the course of his legal career he served as an assistant public defender for the State Appellate Defender Office. While at the Appellate Defender Office, he successfully argued cases before the Michigan Court of Appeals, the Michigan Supreme Court, the Sixth Federal Circuit Court of Appeals, and the United States Supreme Court. He currently serves as the Chair of the Michigan Appellate Defender Commission.

Thorpe: The comments of the justices occurred during a hearing on the court's budget. How did the discussion turn to the nation's corrections system?

Nussbaumer: As I understand it from the news reports about the hearing, Rep. Steve Wormack (R-Ark) asked for the justices' views about prison and jail overcrowding, saying that he had concluded that "you just can't build enough incarcerating facilities" to hold everyone who is being sentenced to prison.

Thorpe: Justice Kennedy said, "This idea of total incarceration isn't working." Do you agree? What are the alternatives?

Nussbaumer: I agree that we need to take a hard, evidence-based look at what works and what doesn't given the high cost of incarceration. It costs approximately $30,000 a year to house an inmate in a Michigan prison. That's $300,000 for a 10-year sentence. And ultimately that inmate will be released back into society. So the real question is whether that's the best use of taxpayer dollars in terms of reducing recidivism. One promising alternative is the specialty treatment courts that we are experimenting with here in Michigan, like the Veterans Treatment Court presided over by Circuit Judge Mark Switalski in Macomb County. I work with that court on providing pro bono civil legal services for the veterans who are diverted there to treat their underlying problems, and we are seeing some very promising results in terms of those men and women turning their lives around and becoming productive members of our community again, at a fraction of the cost of incarcerating them. Another promising alternative is prisoner re-entry programs, like Chance for Life in Detroit, which provides a faith-based approach to preparing prison inmates for their eventual return to society.

Thorpe: Justice Breyer said that he believed that setting mandatory minimum sentences for specific crimes was "a terrible idea." How did we get to an era of mandatory sentences? Could they be reformed or should they be eliminated?

Nussbaumer: Unfortunately, mandatory minimum sentences make for good campaign slogans for legislators who want to win re-election. But those sentences fail to take into account differences in relative moral culpability among different offenders, all of whom are subject to a rigid "one-size-fits-all" sentence, whether that really represents their just desserts or not. For any sentence, but particularly for mandatory minimum sentences, we ought to require a recidivism impact statement that analyzes the long-term costs and benefits before we decide that is the best use of taxpayer dollars.

Thorpe: Justice Kennedy suggested that both overcrowding and solitary confinement may constitute cruel and unusual punishment. Is this the first time a member of the court has spoken on these issues?

Nussbaumer: What was doubly unusual about Justice Kennedy's remarks was first, that the justices rarely speak out on substantive legal issues like this, and second, he in particular is known as a fairly conservative member of the Supreme Court who often sides with law enforcement in criminal law and procedure cases. So, for him to come out so strongly on these issues gives his remarks greater weight and credibility.

Thorpe: Kennedy also decried what he called a lack of investigation and research into the corrections system. Are more studies needed, especially into what is effective and what is not?

Nussbaumer: Yes, absolutely, and in some ways Michigan is ahead of the curve on this, in part due to Governor Snyder's emphasis on "smart" public safety initiatives and data-driven decision-making. In January he signed legislation creating the Michigan Justice Policy Commission, which has as part of its charge examining community sentencing alternatives and the effectiveness of Michigan's current sentencing guidelines. One study presented to Congress by Dawn Van Hoek, the director of the State Appellate Defender Office and the Michigan Assigned Appellate Counsel System, estimated that over the five-year period studied, correctable over-sentencing errors cost Michigan nearly $70,000,000 in unnecessary corrections costs. That kind of money could be better used on other criminal justice priorities, such as fixing Michigan's broken indigent defense system.

Thorpe: Do you expect the candid remarks by the justices to stir Congress into action?

Nussbaumer: I don't know about Congress, but here at the state level, we have already taken the first small steps towards thinking through the long-term costs and benefits of incarceration vs. other alternatives, and that is encouraging.

Published: Thu, Apr 23, 2015