Criminal Justice (9): So What Now?

Looking out for your nephew

This is the final piece in my series about the criminal justice system.¹ I began with an examination of the ways we “other” those accused of crime and then walked my way through crime, law enforcement, court, and corrections. It is appropriate for those who read my newsletters to wander, “okay, what would you do?” Here are some ideas that I hope you will seriously consider.

I’ll begin where the series began. Imagine how the criminal justice system would be different if instead of assuming that every criminal was Doc Ock, we assumed instead that the criminal was our favorite nephew.² What would we hope for our nephew? I think we’d want a system that was fair, that enacted the smallest penalty allowable, and that would have as a priority his return to the “straight and narrow.”

With that in mind, my attempts to reform the criminal justice system would begin with junior high and high school young people. This is a highly volatile developmental period in the lives of those students. They are sorting out hormonal changes, peer pressures, challenges of fitting in, anger control, bullying, and the process of individuation. In the midst of our legitimate concerns over school safety, we have created sharp distinctions between the “good kids'“ and the “bad kids”. We have adopted Zero Tolerance Policies and used School Resource Officers as the enforcers. In too many jurisdictions, this has led to the criminalization of “acting out” behavior that was just as common in my high school years as it is now.³ Paradoxically, our Zero Tolerance approach has blurred the distinctions between “behaving badly” and “truly dangerous”. Reports of recent school shooters in Parkland (FL), Oxford (MI), and Uvalde (TX) have illustrated that there were indicators that the schools should have paid attention to. Perhaps less Zero Tolerance would allow the more disturbed to be more likely candidates for intervention.

If young people do get in trouble with the criminal justice system, they should be given the opportunity to not have that follow them throughout life. While I was in Michigan, the state legislature created a pathway for the expungement of a juvenile record.⁴ This meant that after a short period of crime free behavior, the prior files would be removed and the young person would have no record. This should be standard practice rather than assuming “bad kids” are thugs who will just become “bad adults”.

I should explain why I’m focusing on young people, other than my imagined nephew being that age (my real ones are way older). When I taught criminology, which covers the various theories of why people commit crimes, one of my favorite sections was on what’s called “desistance theory”. This argues that most crime is committed by people in their 20s and that as people develop romantic relationships, get jobs, and have children, their lives begin to develop more stability. And any further criminal activity puts that stability at great risk. So they desist. One of the articles we read for the class suggested that no more than 10% of juvenile offenders become life-long criminals. The rest grow out of it. Given my support for justice philosophies of restoration and rehabilitation over retribution and incapacitation, it shouldn’t surprise anyone that I’m trying to focus on the large percentage of those who can quit bad behavior rather than presuming that everyone MIGHT be part of the 10% (which is too often our enforcement strategy).

We need to rethink law enforcement activity. This follows from my last point. Too often, law enforcement focuses on finding the bad behavior in the 10%. We need alternative strategies for dealing with what I’ll call “difficult behaviors” instead of involving uniformed officers. Experiments here in Denver are showing great promise and are beginning to be replicated in other large cities. We need to lessen the 911 calls for “birdwatching while black” and keep law enforcement focused on their most critical needs.

Furthermore, some have suggested having private companies involved in traffic accident reports, automobile equipment malfunctions like tail lights being out, or lapsed license plates. Far too often, law enforcement has used these “legitimate stops” to look for other criminal activity through the plain sight doctrine.⁵

Police culture needs to be reformed. This has often proved very difficult. Just this week, the Washington Post had a story about the firing of the reformist police chief in Charlottesville, VA. RaShall Brackney had been made chief in May of 2018, ten months after the “Unite the Right” rally in Charlottesville.

Brackney said she set about trying to change that culture. One of her biggest — and most controversial — moves was reorganizing the department.

She withdrew officers from a regional drug task force, which she said was targeting too many low-level users instead of drug dealers. She also stopped sending resource officers into schools, a practice she said criminalized disciplinary issues. Other departments across the country have made similar moves as part of reforms.

Brackney said she was leery of special units because her research had shown they are often spots where corruption and other problems develop in departments.

Brackney got pushback from veteran officers and especially from the always-powerful police union. They had the ability to block her reforms and eventually get her fired. While I don’t know all the specifics of the Charlottesville police culture, this is not unusual. City leaders need to develop the capacity to push back on police unions when the public interest is at stake.

One strategy for promoting reform I heard years ago, right after Ferguson. A retired urban police chief (I think it was from Philadelphia) argued that the way to fix bad (or intransigent) behavior at the officer level was to hold supervisors responsible. He argued that if a supervisor’s potential promotability and pay raise was limited by actions of those at the shift level, culture would be changed overnight.

The Supreme Court continues to support the policy of qualified immunity, which means that officers cannot be held civilly liable as individuals for their behavior. This has resulted in civil actions against the jurisdiction which is paid for by taxpayers through city insurance policies. One variation of this pattern is the increased use of federal intervention on civil rights grounds, at least during Democratic administrations.

This is not to take away anything from the risks of police work or the ways community members too often respond negatively. But we need to recognize that every time a law enforcement agency gives a report to the press that later proves to be incomplete (or even untrue), the entire law enforcement enterprise suffers. Reform is good for everyone in the long run.

But what about crime? As I’ve written, the crime rate is rising compared to recent years (while still far short of the record highs of the 1990s). This is especially true with regard to homicides and aggravated assaults. I wish I could be more optimistic here, but as long as gun ownership is at epidemic levels, I can’t. There was a story in yesterday’s Denver Post on shootings in July. While the report was on the impact on the neighborhoods where these shootings occurred, some statistics stood out to me.

Police arrested suspects in 24 of the 43 gun homicides so far this year, Denver police data shows. Warrants were issued in three other cases and prosecutors refused to file charges in two. Fifteen cases have not yet been solved.

Of the 141 people shot and injured in 2022, 41 have had their cases closed through an arrest — about one-third of all cases — and police have issued warrants in seven more. Seventy-six people haven’t seen an arrest in their case. The remaining cases were cleared without an arrest, refused by prosecutors or closed for other reasons.

Over one-third of gun homicides and two-thirds of shootings remain unsolved. So while we may want law enforcement to deal with these crimes, the reactive nature of their work makes that difficult.

The best hope for lessening gun violence is from groups like Violence Interrupters, which originated in Chicago and has spread nationwide. These groups seek to stop the reprisals that often accompany shootings. By stopping the payback, and encouraging responsibility on the initial shooter, they can make a real difference. (Their funding was reduced in the Sessions/Barr DOJ.) Similarly, former Obama education secretary Arne Duncan has been working with a group called Chicago CRED on issues of community development that can lessen violence. Another model that works is HomeBoy Industries in Los Angeles, developed by Fr. Greg Boyle. His two books, Tattoos on the Heart and Barking to the Choir, show how what he calls “radical kinship” can disrupt criminal activity.

Focus the Courts on Real Crime. We should begin a reform of the court process by prioritizing public safety offenses. That means a willingness to use diversionary programs to deal with a variety of drug, vagrancy, and minor assault offenses. As I’ve stated before, if we don’t assume that these offenders are part of the small percentage who are career criminals, the risk of leniency is very low.

Relatedly, I’m completely in favor of eliminating cash bail. People who are presumed innocent should not be jailed unless the safety of others is a serious risk. There is a bit of a gamble here. We may allow someone to be free awaiting trial who subsequently commits a serious offense. But our current practice is keeping thousands in jail as a hedge against that risk.

We need to drastically increase funding for public defenders. The funding and personnel imbalance between prosecutors offices and public defenders is indefensible, especially for a nation that claims to believe in the Sixth Amendment Right to Counsel. County and state budgets should reflect those moral commitments. Having more public defenders would also limit the plea bargaining process, insuring that a guilty plea truly reflects a compromise in the best interests of the State and the defendant.

Speaking of which, it would be good to limit the stacking of charges that prosecutors often use to improve their bargaining position. As I said in the piece on crime rates, there are more offenses than criminals, often because of multiple charges for the same incident. These allow the prosecution to drop duplicate changes (which could carry additional sentence) in exchange for a guilty plea.

We also need to recognize that a prosecutor’s decision to dismiss a case is a matter of justice being served. This is done in cases where the prosecutor doesn’t believe they can prove guilt beyond a reasonable doubt or where some discretionary grace is likely to pay dividends down the road.

Incarceration needs to be future oriented not past oriented. The point of putting someone behind bars is to see that they learn lessons that make them successful after “doing their time”. That means that we care more about rehabilitation than incapacitation. Everything we do should be gauged against positive future behaviors.

This requires us to acknowledge the limits of deterrence. People who have been in prison for years for an event when they were 18 are not the same people they were and shouldn’t be treated as if they were. There was a very interesting op-ed in the Washington Post on Thursday reflecting on the sentence handed down to the men responsible for killing Ahmaud Arbery. David Singleton, director of the Ohio Justice & Policy Center, argued:

If we are to end mass incarceration, state and federal authorities must eliminate such draconian punishment and enact laws that allow judges to revisit sentences based on the incarcerated person’s demonstrated rehabilitation and fitness to live in society. Meanwhile, although I am relieved that Arbery’s murderers are being held accountable, I hope they will someday be released — after they have served an appropriate period of their sentences and demonstrated their fitness to return to society.

Singleton has hope that even Arbery’s killers could come to a point where future constructive behavior on the outside is possible. Again, there is a risk here. Do we let someone out of prison a decade down the road and then find that they committed another offense? There’s a non-zero probability that that will occur in some cases. But to keep everyone incarcerated for decades as a hedge against that risk seems inhumane.

There is another future-oriented aspect of incarceration we need to consider: the role of the local community. If we want offenders to be reintegrated into society (with jobs and families and voting rights) we need to be thinking about that from the moment of sentencing. Too many of our prison facilities are remote from the urban areas where the offenders come from. That makes it very difficult for family members to say connected.⁶ Better to house offenders closer to family, where the connections between fathers and children could be strengthened even while serving time. Our current practice has created incomparable damage to male role models in urban communities. Furthermore, the community should be a vital partner in the offender's re-entry after a reasonable sentence has been served. Churches, employers, social service agencies, substance abuse support groups, and extended family could all be part of the re-entry process beginning a couple of years before release, with the assumption that the offender will desist of future illegal behavior.

Making these changes is difficult. It’s fine for me to spout such ideas on a newsletter that too few people will read. We need to move these ideas forward in policy. There are two ways I see this happening currently. The first, and most likely, is for innovations at the local level to percolate up from city or county to state level. This is consistent with the argument that localities are “laboratories of democracy” when they want to be and citizens are truly heard. The other way innovation occurs is due to federal intervention, either by creating financial incentives for localities to innovate or through civil rights enforcement. This “carrot and stick” approach has a long history in the Department of Justice and has had positive impacts on our widely distributed criminal justice system.

In the long run, the innovations I’ve proposed would be cheaper than what we are currently doing with a minimal risk of seeing a spike in crime rates. As I wrote in my previous newsletter, our problem is that our sunk costs in the current (relatively ineffective) system prevents us from truly seeing alternatives.

On the other hand, making these changes is exactly what I’d want if, instead some nameless monster, it was my nephew — or your nephew — about to face the criminal justice system.

1. I meant to write this yesterday, but an unfortunate incident with the stove resulted in a trip to urgent care. I’m fine.

2. This is a direct ripoff of John Rawls’ notion of the “veil of ignorance”. The premise is that you wouldn’t know the life conditions of an individual in advance and so couldn’t pigeonhole them. It’s related to the work of his student Thomas Scanlon, who asked us to consider what was the least bad we would anticipate for another. For a fun treatment of these ideas, read Michael Shur’s How To Be Perfect.

3. I’ve regularly told students about my high school “riot” in 1971. I shudder to think how that would have been treated with today’s school-to-prison pipeline operation.

4. This was the result of excellent work across the aisle from Representative David LaGrand. As it happens, David (a former prosecutor) was one of the first speakers I ever heard on the topic of restorative justice.

5. The legitimate traffic stop creates the right to search the vehicle of check for prior warrants to say nothing of “failing to comply with officer orders”.

6. The fact that offenders and families are often charged for video chats and phone calls makes things even worse.