Criminal Justice Reform at the Front End

Posted in: Criminal Law

Trying to fix the criminal justice system by lavishing attention on the back end of the system is like trying to fix a leaky roof by investing in a better mop.

Recent events have once again revealed the dangerous skew in criminal justice reform. Thus, the New York Times cheered a report by the VERA Institute documenting recent reforms at the state level. A few days later, former Treasury Secretary Robert Rubin penned a widely circulated op ed that discussed some of the steps states have taken to reintegrate people into society after they leave prison. Taken together, these reforms send slightly fewer people to prison, release a very small number who never should’ve been sent, ease the burden on people getting out, and restrain the urge to send them back when they commit a technical (non-criminal) violation of their release. To that end, they allow the carceral state to shed a tiny bit of its unwanted bulk.

Yet they still leave it dangerously overstuffed. Most importantly, they do nothing to address the many problems at the front end of the system. We tsk and cluck at problems like “zero tolerance” policing and the abuse of prosecutorial discretion, but nationwide, there is no call for meaningful reform of these practices that remotely compares to the call for reform at the back end, and certainly no set of policy prescriptions that has won widespread support. Most discussion of criminal justice reform, at least among elites, begins with the assumption that people have already been justly arrested or convicted, and the only question is, “Now what?”

To be sure, some experts push back against this tendency. Nicole Porter of the Sentencing Project, for instance, has advocated programs like quality health care and childhood education, which have been shown to reduce involvement in the criminal justice system. Yet these commonsense solutions attract almost no political attention and little sustained support. They are conceived as “structural changes,” and thus distinct from the criminal justice system. Worse, they are eyed suspiciously as the camel’s nose in the tent, a first step toward a radical but veiled redistributive agenda.

But here are two proposals for the front end of the system that would not only shrink the carceral state dramatically, but make it substantially more just: demand moral consistency in policing, and take addiction seriously.

Morally consistent policing requires that enforcement strategies be applied even-handedly. What the state extends to one, it must extend to all; what it withholds from some, it must withhold from all. If a particular violation would not lead an officer to take action against a white offender, it should not lead her to take action against her black neighbor. In any particular case, the question is not whether the offender has committed a crime. The question is whether it is a crime that justifies launching a person into the criminal justice system, and the best evidence that it does not is the fact that whites who commit the same offense do not suffer the same fate.

Because this position aligns with our professed commitment to equality, we are tempted to assume it already reflects the state of play. It doesn’t. Consider the New York City stop-and-frisk program, which was representative of similar “zero tolerance” programs across the country. The avowed purpose of the program was to get guns off the streets. In the nine years the program operated, NYPD cops made nearly 4½ million stops. According to legal scholar Jeffrey Fagan, the department found a gun in roughly one of every 700 stops but used force in one of every five, which means the police were about 140 times more likely to use force than they were to find a gun. If New Yorkers had borne the brunt of this foolishness evenly, we could at least say the program was morally consistent. Yet in every year of its operation, the police stopped, frisked, and used force on about nine blacks or Latinos for every white person.

Do not underestimate the magnitude of this problem. Roughly one in three adults has been arrested by age 23. The FBI calculates that law enforcement in the United States has made more than a quarterbillion arrests in the past twenty years alone, the overwhelming majority of which are for non-violent misdemeanors. Yet often an arrest alone is enough to produce catastrophic consequences, even if no charges are filed or they are eventually dismissed. Arrests can trigger automatic notification procedures, leading to suspensions from work or eviction from housing. Arrests can also lead to compounding fines and fees that quickly become unmanageable, ending in a warrant and a new arrest. For millions of Americans, the gateway into the carceral state is not a conviction, but an arrest. Quite simply, to dismantle the carceral state, we must first demand morally consistent policing.

But there is more that must be done. One of the most welcome features of criminal justice reform is an increasing willingness to treat drug addiction as a public health challenge rather than a crime, and to view the addict with sympathy rather than suspicion. In the past few years, the papers have been filled with sympathetic stories about “normal” folks who became addicted to heroin or prescription pain killers. They are not to blame, we are told, for it was not them but their addiction that led them astray.

But who do you think gets sent to prison? According to the Bureau of Justice Statistics, a third of all inmates in state prison reported they committed their offense while under the influence of drugs. Over half said they used drugs in the month before the offense, and more than two in three “used drugs regularly at some time in their lives.” Even more striking, over half of all inmates in state prison, and 45 percent of federal inmates, reported “symptoms consistent with drug dependence or abuse” in the year before their incarceration, and almost one in five said they committed their crime in order to get money for drugs.

In short, we’re sending addicts to prison in alarming numbers. And this survey, though it is the most recent available, is now more than a decade old, which means it does not reflect the ravages of the heroin and prescription pain killer epidemics. The actual extent of addiction in state and federal prison could very well be even worse than this data show. And it is no answer to point out that we have shuttered our out-of-custody treatment facilities. Sending addicts to prison so they can get treatment is like sending children to reform school so they can escape gun violence. If we genuinely believe addiction is a public health challenge rather than a crime, and that addicts need treatment rather than punishment, we should stop sending so many addicts to prison.

Mass incarceration begins long before a judge bangs the gavel and imposes a sentence, and unless we plug the holes through which so many people pour into the system, we will never solve the problem. Demanding morally consistent policing and taking addiction seriously is a place to start.