These are peculiar times. On the one hand, uttering the words, “criminal justice reform” is an invitation to what a friend once described as a state of heated agreement. As I have often described, and as all can see, there is an accelerating recognition that the American criminal justice system is badly broken and in desperate need of repair.
This is strange enough, given the long and enduring enthusiasm for punishment and demonization in this country. Even more curious is the satisfaction the chattering class seems to derive from declaring, again and again, how bad things have become. The declaration seems to act as a kind of penance, expiating the sin of prolonged ignorance.
And spare me the prattle about the size, cost, and moral bankruptcy of the carceral state, as though repeating it yet again, this time with feeling, will account for the energy that finally swirls around the topic. The conditions that now attract so much attention have existed for years, and cannot remotely explain the relatively sudden interest in reform.
Yet on the other hand, the gathering intensity and increasing popularity of these declarations is not matched by anything in the policy pipeline (as opposed to the research pipeline) that has the slightest chance to effect meaningful reform, let alone achieve a genuine transformation of the criminal justice system.
Indeed, as the call for change grows louder, consensus seems to coalesce around programs like the Justice Reinvestment Initiative that are least likely to achieve comprehensive change. This produces the most curious condition of all: the more people want things to be different, the more likely they are to stay the same. How can we get at the root of a paradox like that?
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Criminal justice reform in the United States suffers from three, overlapping and equally serious flaws. First, as I have written before, it focuses overwhelmingly on the back end of the system—that is, on the institutions and practices that shape the lives of people who have already been convicted or sentenced to prison. The reforms that attract the most attention, especially among politicians, say almost nothing about the front end—policing, prosecution, and defense services.
Second, criminal justice reform assiduously avoids questions of race. The most widely imitated reforms in state houses across the country and the halls of the U.S. Capitol treat race and racial disparity as though they were obscenities, not to be uttered in polite conversation. The silence surrounding Black Lives Matter and other anti-police-violence movements, for instance, is deafening.
And third, reform expends nearly all its energy on the hunt for the elusive low-level, non-violent drug offender. But as I have noted elsewhere, “drug offenders represent only 20 percent of the prison population nationwide, and only a small fraction of these people are both low-level and have no history of violence. Tracking down this particular inmate is like hunting for a snark.”
Taken together, these three limitations—the refusal to address the front end of the system, the failure to confront questions of race, and the obsessive focus on a very small number of unrepresentative offenders—all but guarantee that criminal justice reform will be modest and incremental at best. Of course, even modest and incremental improvements are better than nothing. But it would be a terrible shame for this moment to pass with no more to show for it than tinkering.
These limitations represent an acute failure of imagination. Policymakers cannot or will not imagine a criminal justice world meaningfully different from the one we have created. To encourage this mental leap, I have urged the development of an alternative, transformative vision for criminal justice organized around three, inviolable principles: dignity; community; and equality.
In response to this call, some people have wondered how to get from here to there. At one level, this is a question about how and why reform happens in the United States, which is a complex phenomenon. But as I have shown elsewhere, to win widespread support for major institutional change in the United States, reformers must construct a narrative that successfully casts the offending institutions as “un-American”—that is, as a betrayal of the potent myths and iconic ideals of national identity. Developing such a narrative does not guarantee a movement’s success—much also depends on expanding political opportunities. But not developing it guarantees a movement’s failure.
And therein lay the problem. Despite all the talk about criminal justice reform, the narrative of the punitive era remains fundamentally unchallenged and unchanged. That narrative runs something like this: The most important role for the state is to guarantee the security of a person’s life and property. Some people threaten that security for no good reason other than personal failings, and it is the responsibility of all law-abiding citizens to see to it that the state has the power and resources it needs to fulfill its central mission.
This deceptively simple narrative is the foundation upon which the entire architecture of the carceral state has been constructed. It gave rise to an interlocking set of institutions, rules, and practices at every phase of the criminal justice system, from the first contact with the police to the enduring disabilities imposed after release from prison. Collectively, this elaborate lattice enabled the state to accomplish what had been constructed as its primary mission—viz., to separate “us” from “them” as thoroughly as possible.
To ensure their legitimacy in a post-civil rights era, these rules, practices, and institutions had to have several characteristics. First, they had to be facially neutral, which honored the newfound creedal commitment to formal equality and permitted the belief that racial or ethnic disparities in criminal justice derive entirely from different rates of offending. They allowed the state, in other words, to appear fair.
Second, the entire system had to be inscribed into the written law, which encouraged the myth that ours is a government of laws and not of men. And finally, it had to protect and promote the historic attachment to individual liberty and private property, which allowed it to claim the legitimacy that comes from a long and uninterrupted pedigree.
The creation of the carceral state was of course more complex than I suggest here. The narrative of the punitive era also had to fit other emerging narratives of the late 20th century, like the elevation of individual responsibility that lay behind the gradual decline of the welfare state and the triumph of a colorblind ethos. The punitive narrative also needed to create heroes and demons (the over-worked prosecutor twisted into knots by legal technicalities, for instance, and her perennial nemesis, the cunning drug dealer who manipulates the rules to escape justice), which in turn gave cultural legitimacy to the expanding and entangling reach of the state.
The point, however, is that a simple narrative about the way the world ought to be was mobilized and pressed into service again and again to create an entirely new legal, political, and cultural apparatus—the governance of the carceral state. And as yet, this narrative has no competitor. Criminal justice reform in the United States does not attack this narrative so much as sand down its rough edges. As a result, we continue to live in a world dominated by the punitive narrative: when it comes to criminal justice, the state exists to protect us from them.
I continue to maintain that criminal justice in the United States needs to be organized around dignity, community, and equality. But we need a narrative that takes us from here to there—a narrative that makes change just and resistance “un-American.” That is the work of future columns.
It’s been a long time since I’ve read a legal column as pathetically ridiculous, almost incomprehensible as this one. However, I do agree, aspirationally anyway, that, “…criminal justice in the United States should be organized around dignity, community, and equality.” No one would argue with that statement. However, I’m not ready to summarily discard the rule of law. Not yet anyway. Maybe one of those “future columns” will persuade me otherwise.
This is elegantly written, but I kept waiting to hear the professor’s prescription for a better system. I’m not sure why this lengthy, enticing prologue was necessary.
As the professor points out this is a debate of vehement agreement, almost everyone agrees there are significant flaws in our criminal justice system. What he does not address is the fundamental reason we got here. Like it or not justice and retribution are linked in criminal justice. Before the rule of law became the standard we all adopted, when affronted by violence, theft or other insult a citizen was as likely to grab his gun as he was to complain to the local constable. The Hatfield and McCoy feud lasted generations, and it was not the only one.
A lot can and should be done to purge the flaws from the system, but if reform leaves the majority of crime victims feeling they were victimized twice, first by the criminal and then by a system more concerned with “dignity, community, and equality” for the bad actor then it is with justice for the victim we may find we have a shiny new justice system that appeals to our higher nature, and citizens reaching for their guns and tracking down robber or rapist reveling in his newly found dignity.