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A Convenient Way To Promote Happiness

Just Because It “Worked” Doesn’t Mean It’s Good

If punitive measures produce desired outcomes, that doesn’t mean they’re justified…

In Singapore, justice can be swift and brutal. You can still be beaten with a cane for minor crimes, and the country has historically been unsparing with capital punishment, even issuing the death penalty for drug crimes. If you walk down the street, you may see a state-sponsored ad like this:

Photo by Nick Slater

To those of us repelled by corporal and capital punishment, who believe these methods should be abolished worldwide, this can be very disturbing. But if you talked to a defender of the Singaporean system, they’d tell you: It works. The country has one of the lowest crime rates in the world. The measures taken may be harsh, but they bring results.

Recently I criticized Kamala Harris after video emerged in which she defended her decision to criminally prosecute parents over their children’s unexcused absences from school. I argued that this was not a humane policy. First, the American criminal punishment system is at best a bureaucratic hell and at worst deadly—a Pennsylvania mother arrested for her children’s truancy ended up dying in a jail cell after being denied medication. Criminal punishment is so extreme that it should be used only when every other possible means of solving a social problem has been exhausted. Second, these punishments are going to end up further criminalizing the lives of poor people of color. A report from Harris’ own office estimated that nearly 90 percent of absentee children come from poor families, meaning that these prosecutions are almost entirely directed at the least well-off parents. Furthermore, according to Harris’ report “thirty-seven percent of African American elementary students sampled were truant, the highest of any subgroup,” meaning that over ⅓ of Black families could be on the path to potential criminal prosecution under the Harris approach.

But in response to my argument, journalist Zaid Jilani has issued a critique and a partial defense of Harris. What I miss, he says, is that it worked. It “reduced truancy without increasing incarceration.” Jilani says that when parents are harming their children, “using social sanctions to help them improve their behavior” is “often necessary, and good social policy.” As Harris looked at the problem of school absences, she faced two options:

She had A) Use the prosecution powers she had to levy sanctions in order to create incentives for parents to be more involved in their kids’ lives and B) Do nothing. Harris chose A in San Francisco and it worked, and it worked with little cost because no one at the end of the day was prosecuted. Simply the threat of arrest was enough to get parents more involved in their kids’ lives.

Now, I’m not sure why Jilani thinks “no one at the end of the day was prosecuted.” The fact-checking website Snopes, in criticizing my criticism, seemed to think the same thing, saying that “the purpose of the program was not to criminally prosecute or jail parents of truant children” but rather “forcing [parents], on pain of prosecution, into an administrative process.” It may be true that the “purpose” wasn’t prosecution for its own sake, but the prosecutions were very real. Harris proudly boasted about having actually filed criminal charges against parents, not just threatened to do so. In 2010, Harris’ approach was adopted statewide in California, and a number of California parents have been arrested since. While Harris was Attorney General of California, one mother was sentenced to half a year in jail over her children’s truancy. Around the country, the prosecutorial approach to truancy does produce actual arrests and jail time. (And while I don’t have hard data, in the vast majority of news articles I’ve found, the arrested are mothers rather than fathers. That makes sense since 83 percent of single parents are moms, and single parents will have a harder time getting children to school.)

More important, though, is the “it worked” argument. Indeed, San Francisco’s anti-truancy initiative was seen as a success, with rates of absenteeism dropping significantly after its adoption. I think we have to be cautious in our interpretation of the evidence here: The initiative included both threats of prosecution and the provision of additional support services to parents, so it may be that substantially the same results could be achieved by giving the assistance without the threats. And the research here is apparently mixed, with some arguing that “although truancy proceedings can increase a child’s school attendance in the short term, answering to a judge for school absence does not help students graduate from high school or avoid crime.” But let’s assume for the moment that the prosecutions and threats of prosecution were substantially responsible for the change. I think that’s quite plausible—mothers quoted in news accounts suggest it was a terrifying shock to be told they might be going to jail:

I’m sure that no matter how difficult their lives were, many moms took extra effort afterwards to get the children to school on time. California is strict with its definition of truancy: Any student who is absent unexcused for more than 30 minutes three times in a row is classified as truant, and their parents will be notified that if the pattern continues they and the child can be subjected to criminal prosecution. For a single mom struggling to balance work and life, or who is suffering from homelessness or mental illness, this means that even small mistakes quickly produce the severest threats.

Do threats work? Yes, I believe they often do. I am not among those critics of the criminal justice system who think “deterrence doesn’t work.” Deterrence doesn’t work in all cases, but telling someone you will tear them away from their child if they don’t do action X is a very good way to stimulate them to action. Nothing concentrates the mind like a threat of violence. If you are severe enough in your penalties, you can probably reduce drug use through prohibition—if the penalty for smoking marijuana was summary execution, I would imagine many people would avoid trying it who might otherwise have dabbled. This brings us back to Singapore: Yes, it may be possible to have a crime-free society through inflicting severe corporal penalties on those who transgress the law, but whether a given method “works” is only one of the measures we use to evaluate whether it is wise and just.

I think there is an approach shared by both liberal and conservative policy thinkers that is excessively quantitative and utilitarian, looking at “outcomes” without looking at the qualitative changes in people’s lived experiences that are being caused by policy shifts. For example, we might find that by introducing “strict teacher accountability” and summarily firing any teacher whose student test scores drop below a certain benchmark, we improve student test scores. But we might also be ruining teacher-student relationships, making teachers stressed and students unhappy, and turning school into an SAT-score factory rather than a place where knowledge and wisdom are explored. If we ban smoking in public housing, we may improve health outcomes, but we may also be increasing the degree to which the ordinary lives of the poor are criminalized and surveilled, making public housing tenants feel much more judged and spied upon. After Bill Clinton’s “welfare reforms,” a lot of policy intellectuals noticed that fewer people were applying for welfare benefits, and deemed the “reforms” a success. But they didn’t care to look at whether the actual lives of the affected groups were improving. An “outcomes” chart can so often conceal more than it reveals—for example, we might prove that people are less poor, and think we have a good social system, but if they’re also more depressed, suicidal, lonely, stressed, and hopeless, we might be looking at too narrow a set of variables.

This is one of my most serious problems with the “prosecutorial mindset” I see in Kamala Harris. Those of us who are critical of the criminal justice system believe that its “deterrence” effect comes at a very high cost. Terrifying moms into getting their kids to school might work, but a prosecutor doesn’t see the “terror” as a downside to be factored into the equation. (This is why I was so disturbed when Harris said she instructed her deputies to “look mean” when dealing with parents—it suggests a lack of empathy for what it feels like to be a stressed, scared homeless mom to whom the threat of jail means losing her job, kids, and future.)

Jilani asks me what I would have had Harris do instead: As a prosecutor, she can bring criminal charges, or do nothing. My answer is option B: Do nothing. Not that I think nobody should do anything. But I don’t think that the district attorney should do anything here. The criminal punishment system is so blunt and harmful in its effects that it should be reserved only for the most serious offenses, and anything that can be resolved outside it should be. If you are a prison abolitionist, as I am, you think we should “take prosecution off the table” most of the time as a response to a given social problem. To see why, imagine that you and I are discussing how we can persuade our friend Dennis to stop showing up late to union meetings. You suggest that we offer to give Dennis a ride, so that he won’t be able to blame the bus system. I suggest that we sit down and ask Dennis to level with us about why he’s late, and tell him why his presence matters. We can debate how to approach this. But imagine if a third person piped up and said: “I suggest that we give him a warning, and if Dennis is late to one more meeting, we show up to his house armed, drag him away in front of his children, and lock him in a cage for a week.” Person 3 would appear to lack basic humanity, and their suggestion would (hopefully) be dismissed out of hand. That’s true even if we believe this would objectively be an effective way of convincing Dennis to show up on time.

Prosecution may work, then, but it’s an extreme option. We might need it in the case of murder or physical abuse, but on the whole we need to think more creatively. In-school problems should rarely be dealt with through policing and the criminal courts. When it comes to truancy, it’s indeed a serious problem, but research on its causes suggests that “scaring parents” isn’t actually addressing any of the underlying issues bringing about this problem. What’s more, there are alternatives. New Britain, Connecticut managed to cut its elementary school truancy rate by more than half by partnering with a nonprofit called Attendance Works and staging interventions including “teachers calling parents; home visits by specially trained staff; and connecting families with anti-poverty services provided by the state and community nonprofits like the Boys and Girls Club.”

I want to address one more important question Jilani poses. He dismisses my concern that these prosecutions affect people who are mostly poor and/or Black/Latinx. After all, he says, if murders are committed disproportionately among low-income people, murder prosecutions will disproportionately be brought against the poor, but does that mean we shouldn’t bring them? But let me be clear about my point: it’s not that punishments that impact the poor can never be brought, it’s that because they harm the poor most of all, and when the underlying offenses are the result of poverty, we need to use them only as last resorts. Murder is an extreme harm, but even there, if we can reduce the factors that cause murder through successful violence prevention initiatives, we should do that rather than simply applying after-the-fact harsh punishments to deter. The existing system of mass incarceration, even if it is only punishing “guilty” people, is bad in part because instead of addressing the injustices and deprivation that produce the offenses, it simply locks “problem people” up. We don’t care enough about poor people to help them, or spend the vast amounts of money it would take to actually give people decent lives, so instead we adopt the “cost-effective” solution of throwing them behind bars when predictable behaviors occur. 

Furthermore, if you don’t pay attention to the economics, if the only question you ask is “Well, did they do it?” then you miss the development of highly unjust systems of wealth extraction. Texas, for example, prosecutes hundreds of thousands of truancy cases, and fining the poor over absences has brought in colossal amounts of revenue: 

The economics of truancy enforcement are boldly on display in Texas’ courts. From 2005 to 2009, truancy cases filed by public schools in the Lone Star state grew annually, from 85,000 to 120,000. Truancy courts are the traffic courts of public education, processing hundreds of parents and students daily in assembly-line fashion–even during summer months. The Dallas courts alone handle an average of 35,000 cases a year, and their revenue is eye-popping: just over $2 million in FY 2009 and nearly $1.8 million in FY 2011. Truancy court was founded in 2003 because the problem of unexcused absences was overwhelming the juvenile court system; now Dallas has five truancy courts, each with its own judge and staff. 

(Read more important information on truancy prosecutions in the Economic Hardship Reporting Project’s The Truancy Trap.)

My problem with the Harris approach is that I think it is a cruel shortcut, an unjust substitute for the actual difficult work of figuring out why people’s lives are going awry. If, as Harris herself knew, 90 percent of the parents of truant children are poor, then threats aren’t helpful. They’re just making the experience of being poor in the United States even more scary and hopeless. We have to get beyond the simple-minded idea that a policy is “working” if it changes the outcome on a graph in the desired direction. Human dignity matters too, rights matter too. Policy-makers have to care about the experiences of the actual human beings whose lives they are playing with. 

NOTE: Snopes takes me to task for spreading false information, because I said Kamala Harris instructed her deputies to look mean in their meeting with a homeless mother being threatened with prosecution, when in fact she instructed them to look mean in ALL meetings with poor parents being threatened with prosecution, not just the one with this particular homeless mother. I gratefully accept the correction but would respectfully suggest that the point is trivial.  

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