Just What Do We Mean by Reform? Part Two in a Series on Race and Policing

Posted in: Criminal Law

My last column was the first installment in a series on policing and race. I took a look at the “zero tolerance” policy implemented by the Baltimore Police Department from 1999-2007, which led Baltimore’s finest to stop and arrest hundreds of thousands of residents for the most trivial violations. As I explained, “zero tolerance” systematically misallocates police resources. Officers descend on the many citizens who commit trivial infractions, but largely ignore the few who commit the most serious violations. The result is simultaneously too much and too little policing.

But this misallocation is not remotely the most serious problem with “zero tolerance.” Far more importantly, it poisons the relationship between the community and the police. The person stopped knows full well that the treatment he is routinely forced to endure would not happen if he lived in white neighborhoods, where “zero tolerance” policies are not imposed because of the lower incidence of violent crime. Yet he also knows his mistreatment will do virtually nothing to reduce that crime. He is thus subjected to repeated humiliations for no good reason, which leads predictably to mistrust and animosity.

Conceivably, policies like “zero tolerance” might be less toxic in a community with a long history of mutually supportive relationships between the police and the people they serve. Such a history can produce a collective memory of good will as well as a large and informal network of positive relationships, all of which can help the police and community weather the storm of a misguided policy. This is just another way of saying that healthy relationships are more resilient than unhealthy ones. That, however, is not Baltimore’s history. “Zero tolerance” was imposed on a community that was already deeply mistrustful of its police.

Yet notwithstanding Baltimore’s recent and extended experience with law enforcement, I ended my last column on a hopeful note. Don’t give up on Baltimore, I implored. Reformers are at the helm. I should add here the personal note I should’ve included in my last column: I was born and raised in Maryland and think Baltimore is—or could be—one of the finest cities in the country.

* * *

So let’s talk about reform. What does it mean? I hadn’t thought I would write about this, but after my last column appeared, several people wrote with some skepticism. Many people, myself included, link crime to an array of deeply embedded structural conditions that produce unequal economic opportunity, political power, and social capital. All of these conditions have deep historic roots in this country, and in combination, they create environments where crime can flourish. From that starting point, many argue with great force that true criminal justice reform is impossible unless it is accompanied by a meaningful change in the structural realities of the inner city.

President Obama expressed this precise view when he spoke about the unrest in Baltimore following the death of Freddie Gray:

This is not new. This has been going on for decades. And without making any excuses for criminal activities that take place in these communities, we also know if you have impoverished communities that have been stripped away of opportunity, where children are born into abject poverty, [where] it’s more likely that those kids end up in jail or dead than . . . go to college, and . . . there are no fathers who can provide guidance to young men . . . , and manufacturing’s been stripped away, and drugs have flooded the community . . . if we think that we’re just going to send the police to do the dirty work of containing the problems that arise there without, as a nation … saying what can we do to change those communities to help lift up those communities and give those kids opportunity, then we’re not going to solve this problem . . . .

Is reform of this sort possible? To get some sense for the magnitude of the problem, consider the groundbreaking study recently published by two Harvard economists, who examined the relationship between geography and economic mobility for children raised in the 100 largest counties in the country. The authors found that poor children were most likely to escape poverty in counties with five characteristics: “less segregation by income and race, lower levels of income inequality, better schools, lower rates of violent crime, and a larger share of two-parent households.”

Given this finding, we should not be surprised that the authors also found that counties with a large black population “tend to have lower rates of upward mobility.” And where do children fare the worst? Summarizing the results, the Washington Post observed that, “among the nation’s 100 largest counties, the one where children face the worst odds of escaping poverty is the city of Baltimore.”

Does criminal justice reform tackle these systemic, structural inequities in American society? It does not. Apart from a small minority, criminal justice reformers in the United States today are focused quite narrowly on different aspects of the criminal justice system and are emphatically not part of a larger campaign for social justice of the sort envisioned by President Obama. Maybe they should expand their horizons; maybe, for instance, they should build and sustain links to the gathering campaign to redress income inequality. I happen to believe they should, but that’s a different question that I will address in another column. The fact is, they haven’t.

So let me be as clear as I can: If criminal justice reform requires that we eliminate the conditions that produce results like those uncovered by the Harvard economists—if it means creating genuine economic opportunity in the inner cities, improving the schools and public services, repairing the infrastructure, overcoming class and racial discrimination, and ending hyper-segregation—then criminal justice reform is dead in the water.

In light of this, how can anyone be hopeful about criminal justice reform? Can we really expect positive change as long as growing up in Baltimore and cities like it effectively consigns young people—especially boys—to a life of poverty? Under these circumstances, is a certain amount of anger, despair, and frustration that periodically erupts in violence—not to mention crime—really that surprising?

These criticisms are entirely fair. Yet I am nonetheless hopeful, for two reasons. First, in working on my book on criminal justice reform, I have spoken with advocates and activists all over the country who dedicate themselves to improving some aspect of the system. And if I have learned anything from the many interviews I have conducted, it is that participants have an acute sense for what is politically possible. Most of them would rather see transformative change in American society, but they recognize that advocating for such change is a non-starter that will scare off many of the politicians and conservatives that have only recently climbed aboard the reform train. As a result, they seek the reforms that are attainable.

And to be fair, those reforms are not insignificant, particularly in the area of police procedure. The experience of the past 20 years has taught us that reformers can adopt a range of practices that will dramatically reduce violent crime while improving relations between the police and communities of color. (I had originally planned to write about these practices, but that will have to wait for the next column.) To be sure, these practices do not change the structural realities of American life. They do not end hyper-segregation, fix the public schools, or bring good jobs back to the inner city. But it is nonetheless a good thing when streets are safer and communities are more trustful of the police. It is a good thing when misguided policies like “zero tolerance” are replaced with practices that support rather than demonize the community.

Second, and more importantly, we can reorient and reconceive the criminal justice system in a way that will work even more dramatic reforms. In the space remaining in this column, I can only hint at this vision, but I will return to it later. The biggest mistake we have made in the criminal justice system is to construct it as a contest between the state and the defendant. Since the state makes the rules, whenever it feels threatened, it will tilt the playing field in its favor. In a nutshell, that describes the course of the past 45 years, when we have systematically made it easier for the state to arrest, prosecute, convict, and punish those believed to have broken the law. And because this system is ubiquitous, those who protest can generally find no other language for their objection than a demand that the field be tilted in the other direction.

But what if we think of the criminal justice system in an entirely different way? The overwhelming majority of crime is local. Someone does something against the person or property of another, who most likely lives or works nearby. Often, the victim and offender know each other and come from the same community. So, if we focus on how crime actually works, the most relevant actors are: the victim; the defendant; and the community from which they both hale.

Recognizing this, the goal of the criminal justice system should be to hold the offender accountable, repair the community, and make the victim whole. The state’s principal role in this process should be to advance these goals. The state’s interest, in other words, is not primary; it is secondary to the interests of the people most prominently touched by crime. The state, therefore, is a servant to the people, and not a master with an independent interest that demands vindication. The machinery of the criminal justice system does not have a life of its own. It exists only to serve the interconnected interests of the victim, the defendant, and the community.

I will elaborate on this vision in future columns, but if “reform” means reorienting the criminal justice system in this way, and particularly reconceiving the role of the state, the consequences can be profound. No longer can the state devise its enforcement and prosecution strategies without regard to the interests of the community. No longer can the state impose sentences that, in practice, work a second injury on the victim, or punish the offender beyond what is needed to hold him accountable. No longer can the state impose burdens on the offender that make it impossible for him to become a productive member of the community upon his release from prison. All of these are illegitimate if the state is the servant of the people.

Reform undoubtedly means different things to different people. But even within the limits of American life, meaningful reform of the criminal justice system is possible, if we have the will to seize the moment.

Posted in: Criminal Law

Tags: Legal