Criminal Justice and the Problem of the In Between

Posted in: Criminal Law

The American mind does not rest easily on the in between. It has a scrivener’s talent for describing what is, and the poet’s gift for imagining what might be, but it balks at the transition, terrified of the chaos it imagines on the journey from here to there. This freezes us in place, consigned to lament the world we have but too frightened to build a new one. It is the fear of the in between.

Nowadays, fear of the in between stymies reform of the criminal justice system. Among those who rely on the system the most, whether by choice or necessity, there is a broad consensus that it fails at nearly every turn. By many orders of magnitude, the carceral state is too big, too expensive, and too cruel. It sweeps millions into its grasp who should be left unmolested, and clings to millions more who should be released—released from prison, probation, or parole.

Yet we can imagine a world where a thriving, healthy neighborhood naturally produces public safety, without need for the coercive weaponry of the carceral state. Where crime is low, streets are safe and prisons are empty. But getting from here to there means navigating the in between, and particularly in an age of rising violent crime rates, fear paralyzes policy and blunts reform.

The fear is strongest whenever talk turns to police reform. The suggestion that we misuse the police, and that other professionals are better suited to many of the tasks for which we now dispatch an armed, uniformed officer, is met with suspicion. Opponents of reform raise a wary brow, detecting in the suggestion a sinister agenda. We know your game, they say. Shifting responsibilities from one professional to another—from a cop to a mental health worker, for instance—will eventually lead to a call that resources follow the work. Pretty soon, you’ll be talking about trimming police budgets. It is a dangerous step into the in between, a voyage too terrifying to contemplate.

And the observation—backed by decades of research—that violent crime is hyper-concentrated among a tiny number of people who square off at a miniscule number of places? We know where this is heading. Before long, reformers will argue that policymakers develop a laser-focus on those few people and places that account for an inordinate fraction of the violence and bloodshed in any city. That’s where resources should go, they’ll say, rather than to saturation strategies like zero tolerance and stop and frisk. It’s just another ploy to emasculate the police and shrink the carceral state—yet another step into the in between.

Or the claim that the police are only one piece, and often only a small piece, of the public safety puzzle? That is nothing short of Martin Luther pounding his 95 theses onto the door of the carceral church. To say that the best use of a vacant lot is an affordable home, that the proper response to a broken window is to fix the window, that economic opportunity is the best crime control strategy, and that a healthy neighborhood can solve many of its own problems—if we permit this sort of heresy, then soon enough, someone will figure out that we don’t need the police nearly as much as we think we do. By that point, we will be deep adrift in the in between.

As regular readers know, I have pressed time and again for reforms that shrink the blue footprint to make life better for everyone, including the police. That is why I was so gratified to read the recent report by the Council on Criminal Justice, an independent, non-partisan think tank devoted to the creation of a fair, intelligent, and humane criminal justice system. On January 12, to little fanfare, the Council released its proposal to reduce gun violence in American cities. It is a short, sensible document, mercifully free of hyperbole and pot-banging. It identifies ten straightforward actions cities can take immediately that will, in time, reform policing, reduce gun violence, and restore trust.

And when I say straightforward, I mean really straightforward. Set a goal and make it a priority at the very top. Treat reduction of gun violence with the moral and practical urgency it deserves, and accept responsibility for the task. Recognize that while gun violence ultimately touches everyone, it involves only a very few. Learn their names, know their motives, understand their trauma, respect their humanity. Do not content yourself with planting an officer on the small number of hot spots where violence occurs; change the place. And most of all, hold offenders accountable, but do not treat them like animals; they are not monsters, they are sons, fathers, brothers, neighbors. Anything else, and especially a demagoguery of us and them, will certainly fail. As I have insisted many times, there is no them, there is only us.

The Council has not produced a radical document. Its modest proposals are backed by mountains of research. All of them have been implemented in one form or another in municipalities across the country. We know they work. Yet opponents of reform will undoubtedly warn that the proposals would unleash even more violence. There may be a Nirvana, they will say, but getting there will get us all killed. It is the fear of the in between.

It is time to recognize this lament for what it is. There will always be those who raise the specter of transitional chaos in order to reverse the tentative first steps toward justice, or better still, to justify doing nothing at all. In 1956, more than four-score southern congressmen and 19 southern senators released their famous broadside against Brown v. Board of Education. The “Declaration of Constitutional Principles,” known more widely as the Southern Manifesto, sounded the familiar alarm of the in between. Brown, they insisted, unleashed “chaos and confusion,” destroying “the amicable relations between the white and Negro races that have been created through 90 years of patient effort by the good people of both races.”

The times change but the fear does not. If we allow it, the fear of the in between will always keep us from the world we deserve. When it comes to gun violence and police reform, there is a way forward, if only we have the courage to push past the fear.

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