The Puzzle of Reform, Part I

After several columns dedicated to the foolishness of judicial and presidential politics, I return in this two-part essay to my first love—the uncertain fate of criminal justice reform—and try to answer the foundational question: Why is it happening?

I

Anyone who tries to explain why policy-makers and politicians have embraced criminal justice reform is quickly confronted by a number of riddles. For one thing, none of the conventional explanations withstand close scrutiny. Many point out, for instance, that crime rates are falling. But crime rates have been falling for 25 years. More importantly, the great majority of Americans have been telling pollsters for years that crime is either the same or getting worse, notwithstanding the evidence. The actual crime rate may be relevant to the current debate, but it is not immediately apparent how.

Others point to the economic downturn to account for the interest in criminal justice reform. The idea is that people suddenly awoke to the fact that mass incarceration is staggeringly expensive. But creating and maintaining the carceral state has always been expensive, and over the past four decades, it has grown in good economic times and bad. In any event, the conventional wisdom is that recourse to carceral solutions increases during hard times. No one has adequately explained why it should suddenly be otherwise.

Other scholars point out that crime no longer has the same political salience it once had. This may be, but is merely another riddle to be explained, and not the explanation itself. The question is why politicians believe, rightly or wrongly, that tough talk on crime no longer has the same return on investment. This is particularly curious given the popularity of Donald Trump, who not only delights in demonization, but seems to be rewarded for it among his followers. I see no reason to believe Trump would be punished for suddenly spouting the “get tough” rhetoric of the 80s and 90s.

Yet there is a second, even more serious problem with the crop of explanations currently in circulation: None of them attends to the particular dimensions of criminal justice reform as it is taking shape at the state and federal level. All too often, commentators speak of criminal justice reform as though it were reaching all aspects of the criminal justice system equally, from police policy to re-entry strategies. But that is not remotely the case; the reforms actually being implemented fall disproportionately on a very small part of the criminal justice spectrum.

Few scholars have paid much attention to this markedly uneven distribution of reform energy. Yet it should be obvious that explanations like declining crime rates or budgetary constraints need not compel a particular reform model. One can save money at a number of points in the system and the decision to save it at Point X rather than Y demands some explanation. The question we ought to ask, therefore, is not “why are we seeing reform,” but “why are we seeing this particular configuration of reform (and not something else)?” I start the answer in this essay, and finish it in the next.

II

Just what is the current reform picture? I define the reform universe to include only those innovations that have achieved some appreciable degree of acceptance at a national or regional level. Criminal justice reform has been with us for most of the 21^st century, and if a policy innovation has not proven itself by winning at least some appreciable acceptance, query whether it can fairly be called part of the reform landscape. This restriction can be attacked, of course, but at least until someone comes up with a better way to separate wheat from chaff, it allows us to analyze the process and progress of reform in an intelligible way. This is important both in its own right, and as segue to the next set of questions: Given this, why not something else? If the current configuration is deficient, what can we do to make it better?

Applying these conditions, criminal justice reform has been moving toward these propositions:

1. Vulnerable populations should not be treated like “ordinary criminals,” which often means they should not be brought into the criminal justice system.

2. Offenders deserve an opportunity to redeem themselves.

3. The police should be monitored, but not closely regulated.

As I will explain, each of these propositions has an internal logic. Taken together, they are giving rise to a new narrative about the meaning and function of criminal justice in this country. Yet that narrative is woefully incomplete and flawed in important respects. It is important to study the narrative and its constituent parts with care if we are to prevent it from hardening, and thereby achieving the exalted status of common sense.

i. Concern for Vulnerable Populations

The most noteworthy trend in criminal justice since the turn of the century has been a newfound (and hard won) solicitude for what I call vulnerable populations. A consensus is slowly taking shape that, as a rule, these actors should be distinguished from “ordinary” criminals. Though not typically expressed in so many words, people in these groups are seen as one of “us,” not one of “them.” Nothing illustrates this better than the 21^st century trends in juvenile justice.

We have come a long way since the days of the mythical juvenile super-predator. In January 2000, the Sentencing Project published a report entitled, “Prosecuting Juveniles in Adult Court: An Assessment of Trends and Consequences,” which lamented the well-established practice of “sending more and younger children to adult criminal court. Since 1992, almost every state [] made it easier to try juveniles as adults. Congress provided additional encouragement to this trend in 1998 by making some federal grants contingent on states having policies allowing for the prosecution of those over the age of 14 as adults.”

Today, the landscape is dramatically different. Since 2000, more than half the states have taken steps to keep youthful offenders in juvenile court. Roughly two dozen states, for instance, have enacted legislation that restores juvenile court jurisdiction over some categories of youthful offenders. Other states have eliminated or narrowed transfer provisions to adult court, or altered the rules and presumptions that govern transfer proceedings in a way calculated to make transfer less likely. At the same time, those children who remain in juvenile court are far less likely to be held in detention than they were 20 years ago. Since 2000, the number of children locked in secure juvenile detention centers nationwide has fallen by half, and one-third of all juvenile detention centers have been shuttered.

Though nothing compares with the sweeping reforms we have seen in juvenile justice, there have been noteworthy successes in the treatment of several other vulnerable populations. I do not have the space to treat them in detail, but in general we are seeing a gradual trend toward the following:

• Drug addiction is better addressed as a public health challenge than as a crime. This is considered especially true for heroin and opioid addiction.

• Mental illness is not a crime, and the criminal justice system should not be society’s default option for the institutionalization of the mentally ill.

• Solitary confinement should be employed as sparingly as possible, and never used for children or the mentally ill.

ii. Second Chances

The second emerging trend is refreshingly simple: Reformers have embraced redemption. People who have paid their debt to society deserve a second chance. The goal in society is to keep them out of prison by allowing them to participate in the life of the community as responsible and productive citizens. This has manifested itself in a number of ways, including a surprising willingness to restore the right to vote to those who once offended and to ease the burden of collateral consequences. We have a long way to go in this regard, but that is more a measure of how bad things had gotten than a commentary on the quality or quantity of the current reforms.

Thus, according to the Sentencing Project, 23 states modified their disenfranchisement provisions to expand voter eligibility between 1997 and 2010, adding approximately 800,000 people to the list of eligible voters. Since then, the trend has only continued. In 2015 alone, California, Kentucky, and Maryland changed their practices to add more people to the roles. The move in California gave 60,000 people the right to vote. To be sure, the problem of disenfranchisement remains immense; well over 5 million people, and 1 in 13 black adults, cannot vote as a result of a prior felony conviction, but the trend toward restoring the right to vote is unmistakable.

In the same spirit, a number of states have eliminated or eased some of the burdens imposed on men and women as a result of a prior arrest or conviction. Once again, space prevents a complete accounting, but the gathering success of the Ban the Box campaign is representative. To date, more than 45 cities and counties, including New York City, Atlanta, and Chicago, have “banned the box”—that is, they no longer inquire about conviction history in municipal employment applications—and seven states have changed their public employment hiring practices to reduce discrimination based on a prior arrest or conviction. Some municipalities, as well as the Commonwealth of Massachusetts, have extended this protection to private employers.

And this says nothing of the many reforms to parole and probation that have been adopted by states and municipalities in order to improve the quality of supervision and decrease the number of people sent back to prison based on technical violations (that is, something other than a new crime).

iii. Monitoring the Police

The third trend in criminal justice reform is the simplest of all: most major police departments will soon require that their officers wear body cameras. According to the results of a survey recently completed by the Major Cities Chiefs Association and Major County Sheriffs’ Association, nearly every large police department in the country plans to implement body-worn cameras. More than 95 percent of the departments are either committed to the cameras or have already begun to use them. Only 4.5 percent said they either do not intend to use body cameras or chose not to go forward with the technology after completing a pilot program.

To be sure, there is much about these cameras that remains unresolved, including data storage and privacy issues. At the same time, it is clear the cameras cannot be the panacea many in the community anticipate; the technology simply will not capture every angle of every encounter. But the practical reality is that major departments feel they must adopt the technology in order to maintain community trust, and the great majority of departments expect the video to be subject to disclosure under state FOIA provisions. Though there is a veritable explosion of promising and exciting research in policing, some of which I have written about before, the increasing use of body cameras is, so far as I can tell, the only reform of police practices that has achieved or will soon achieve widespread acceptance in the United States.

III

So what conclusions can we draw from this configuration? Over the past 15 years or so, we have become generally more solicitous of vulnerable populations, and inclined to give more ex-offenders a second chance. On the other hand, we are content with external observation of the police and disinclined to regulate them more carefully. What does this imply? Perhaps the best way to answer this question is to reflect on what is missing. To put it simply, nothing in the current reform agenda calls into question the fundamental premises and architecture of the carceral state. There is a concern about some of the people to whom it is applied, and a belief that coercive authority should be watched, but that’s about all.

Thus, there is almost nothing in the current reform agenda that mitigates or redresses the class and race burdens that bedevil policing and prosecution. There is, for instance, some welcome attention in the media to the destructive consequences of zero tolerance policing, but nothing remotely approaching a consensus against its use. Likewise, there is increasing awareness that fines and fees are misused to fund local criminal justice agencies, with disproportionate impact on communities of color, but little movement toward meaningful reform. In the same way, there is virtually nothing on the reform agenda to discourage misuse of the prosecution function. In particular, very few initiatives push back against the over-prosecution of low level offenses, even though empirical research identifies this as a major driver of mass incarceration (though some state legislatures have raised thresholds for felony property offenses and converted a small number of low level felonies to misdemeanors).

Relatedly, the determination to leave policing and prosecution essentially untouched has left the funding disparity between the state and the defense firmly entrenched. The over-worked public defender is a cultural cliché. But in an age of austerity, there is precious little support for increasing defense funding. The idea of criminal justice reform is to save money, not to spend it, and the resource chasm between the state and the defense shows no sign of narrowing. Finally, and perhaps most regrettably, the solicitude for certain vulnerable populations—children, the mentally ill, the addict, etc.—has predictably hardened attitudes toward their supposed opposite, the people convicted of a crime of violence. Advocacy for criminal justice reform is always carefully couched to exclude them from its reach. Demonization, the bane of the modern criminal justice system, is alive and well in this reform era, and these men and women are still denounced as monsters.