Ending mass incarceration: lessons from the 'Ungers'

Recent headlines suggest that we’ve finally decided to address mass incarceration. We all know the statistics. Over the past three decades, the number of people jailed in America has tripled to almost 2.3 million, more per capita than any other country in the world. The racial disparities in our criminal justice system are flagrant and well documented.

And so President Donald Trump just endorsed First Step, federal legislation that would reduce or eliminate mandatory sentences for selected crimes and address racial disparities in penalties for drug possession, among other reforms. In Maryland, we’ve just reached the first anniversary of the Justice Reinvestment Act, which aims to shrink the prison population and reinvest the savings in efforts to reduce recidivism.

But these efforts are focused on non-violent offenders. We are kidding ourselves if we believe that these reforms will meaningfully address the human, financial and moral cost of this problem. Every non-violent offender could be released today, and we would still have mass incarceration. Missing from the conversation are the hundreds of thousands serving extreme sentences for crimes classified as “violent.” American prisoners serve longer sentences than those given for similar crimes in most countries. We are, for example, one of a handful of countries who sentence children to life in prison.

The majority of people serving long sentences deserve to be considered for release. As I can attest from working with clients sentenced to life as children, many people convicted of violent crimes have been overcharged or wrongfully convicted. But — and this is crucial — even those who are guilty of the crimes for which they are serving long sentences must be included in reform efforts.

We now have compelling support from a Justice Policy Institute report. “The Ungers, 5 Years and Counting” examines the experiences of 188 people convicted of violent crimes and released as a result of a 2012 court decision, Unger v. Maryland, finding the jury instructions in their cases unlawful. Most of the so-called “Ungers” went into prison while in their 20s and had served an average of 39 years at the time of their release. The experience of the Ungers is thus, as the report notes, “a natural experiment on how states can safely reduce their aging prison population, regardless of their committing offense.”

The Ungers faced a range of problems upon release. The conditions in prison for those serving long sentences left most with little education or job training, and many with health issues. Some had family, but many were without housing. Most had never touched a smart phone or computer. Despite these challenges, the release of the Ungers has had virtually no negative impact on public safety. Out of 188, only five have returned to prison — an amazing 3 percent recidivism rate, compared to 40 percent for the general prison population. How was this accomplished?

We know that recidivism rates for older persons are significantly lower than the general prison population and that “lifers” who are released are less likely to reoffend than non-lifers. But the Ungers benefited from more than their favorable demographic. Anticipating their release, a collaboration of social workers, lawyers and law students from the Maryland Office of the Public Defender and the University of Maryland developed multi-tiered re-entry plans to address the many issues facing this group. They helped find housing, medical care and employment for those who could work. They worked with community organizations, particularly the Maryland Restorative Justice Initiative, to provide opportunities for the Ungers and their families to meet and receive support from each other as well as from outside resources.

What lessons are to be derived from the Ungers? Violent offenders cannot be “off the table” in criminal justice reform. With modest investment in re-entry services, many can be released without threatening public safety. The Unger report estimates that the government could provide a similar level of support to all people released from prison at a cost of about $6,000 per individual, a fraction of the cost for continued incarceration. Instead of continuing to age in prison, the Ungers are leading meaningful and productive lives. They have obtained employment, gotten married, helped raise children and grandchildren, cared for elderly siblings and parents, returned to school to finish degrees begun in prison and volunteered in organizations that benefit at-risk youth.

The Ungers provide the blueprint. Let us take the lessons from this remarkable story and begin a new, more meaningful conversation about criminal justice reform.

Jane C. Murphy directs the Juvenile Justice Project at the University of Baltimore School of Law. Email: jmurphy@ubalt.edu; Twitter: @familylawprof.

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