by Daniel A. Rosen |
“This moment calls for structural change and transformative change.” -Patrice Cullors, BLM Co-founder |
As the twin pandemics of COVID-19 and systemic racism came to a head in 2020, the Trump Administration had an opportunity in an election year to provide real leadership and demonstrate that people’s lives mattered. They chose to squander the moment, promoting divisiveness and the politics of fear instead of courage and caring. Americans chose a different course in this election, and gave Joe Biden and Kamala Harris a chance to effect real change going forward.
In a Biden/Harris Administration, the approach to COVID-19 will rely on science and public health professionals will lead the way. And the more chronic challenge of systemic racism and inequity in our justice system – though it may take longer to wrestle down – may finally be treated as a national emergency too. The “BREATHE Act” that the Movement for Black Lives proposed offers a range of productive and concrete proposals. Biden’s platform on policing and justice reform is a good start too – but we should be thinking bigger, about how to transform the broken system that’s evolved.
The numbers are staggering. By some accounts, $80-100 billion per year is spent keeping 2.2 million Americans in cages. Two out of three are men of color. A million police walk the streets of our cities, and they log a million interactions a day with citizens. As many as 10 million people a year are booked into local jails. We’ve built over six thousand jails and prisons to house all these offenders – and most are little more than glorified warehouses where predominantly men of color languish for years without gaining job skills or education.
600,000 Americans will walk out of prisons this year – a rate of one inmate every minute of every day – and try to rebuild their lives despite structural barriers and prejudices that limit them. By some accounts, almost 100 million Americans have been stopped by police, charged, arrested, incarcerated, put on probation, or otherwise touched by the justice system.
From injustices in policing and prisons, to health and housing, to employment and economic inequality, Americans are finally saying, simply: “Enough.” It’s time for our President to say it, and for the courts and Congress to say it too. Bipartisan support for the First Step Act during the Trump administration has paved the way for a serious effort now at decarceration and broader justice reform. The next step should be a giant leap forward.
How We Got Here
How do we begin to fundamentally revamp an organism as complex and multilayered as the racist system of justice and mass incarceration established in America over the past 50 years? After all, even calling it a “system” is misleading. We have a federal system, 50 disparate state systems, and thousands of local county-level systems. The only law that governs them all is the Constitution and the rights and responsibilities enshrined therein. National-level leadership will be required, but it has a history of less-than-helpful outcomes.
When the Federal government first tried to put a national frame across local public safety issues it only exacerbated the problem. LBJ may have had laudable goals when declaring wars on poverty and crime in the mid-1960s, but social unrest and the war in Vietnam derailed his agenda. The Crime Commission Report in 1967 perpetuated the problem, and the Safe Streets Act that followed was never meant to be a “substitute for longer range programs…to attack the root causes of crime,” as was commented at the time. Nevertheless, it became a substitute. Seventy-five percent of federal monies went to newly-militarized police forces in our inner cities; the rest mostly went into courts and corrections.
The War on Crime we pursued in the wake of unrest in every major American city in the 60’s and 70’s really meant a war on minorities, the poor, drug addicts, and the mentally ill. President Nixon solidified racist anti-crime policies that’d been germinated under Johnson, and closed the door on the War on Poverty. Neither war addressed employment, health, education, or housing inequalities in a systemic or structural way.
Nixon endorsed over-policing, viewing social problems through a law enforcement lens, and insinuated policing into inner-city youth engagement programs. Gerald Ford doubled down on his predecessor’s policies. The perceived permissiveness that policymakers blamed for urban violence was replaced by purposeful punitiveness. Removing supposed career criminals – young black men – permanently from the streets became the guiding principle.
As one author wrote about this era: “The federal government’s interventions meant that black urban Americans were vulnerable to the expanding punitive apparatus and thus criminal justice supervision at an early age, increasing the chances that they would be arrested, accrue criminal records, go to juvenile detention centers, and eventually serve long prison sentences.” (Elizabeth Hinton, From the War on Poverty to the War on Crime, 2016)
Nationally-led ‘reform’ efforts in the mid-nineties didn’t fare much better. Fears of young, black ‘superpredators’ and the crack epidemic spurred even harsher sentencing, more money for policing, and less emphasis on rehabilitation. States passed “truth-in-sentencing” laws at Washington’s insistence to ensure the continued flow of federal anti-crime funds. Inmates served more time, and new prisons were built at an astonishing rate to keep up.
As David Rothman wrote then, over 25 years ago, “The least controversial observation one can make about American criminal justice today is that it is remarkably ineffective, absurdly expensive, grossly inhumane, and riddled with discrimination.” (“The Crime of Punishment,” NY Review of Books, 1994)
Sadly, all four of those critiques of the justice system – that it’s ineffective, costly, cruel, and racist – are only more apt now. In fact, things are far worse, because the population of inmates is so much larger than it was in 1994. So, we need to add a fifth critique – over-crowdedness – which exacerbates all the other issues.
It’s time to ask: Can we punish fewer people for more serious crimes, and make it more effective, cheaper, humane, and unbiased? The answer is yes; here’s what it’ll require.
1) Arrest and Jail Far Fewer People
The first critical task is cutting the population of inmates to a more manageable size – by at least half – and keeping it there or lower. Roughly half the people in jails and prisons don’t belong there anyway. They were arrested and convicted for substance abuse (or drug-related crimes), probation violations, driving on suspended licenses, unpaid court costs or fines, mental health crises, or low-level property crimes and misdemeanors. Many are there because they can’t afford a few hundred dollars bail. If we removed them all from jail and prison, right away we’d have a much more manageable system, and we’d be able to deal more humanely with those still left.
There’s no way to reach that milestone until police simply stop harassing and arresting people for minor transgressions, petty property crimes – like passing a fake $20 bill – or substance abuse. This is especially acute in communities of color, who constitute two-thirds of the nation’s inmate population, though they make up only about one third of the country. Or until prosecutors stop overcharging people – especially people of color – stacking charges on top of one another to force quick plea deals. And until probationers of color stop filling up cells for technical violations like positive drug tests and missed meetings with probation officers, having never committed a new crime.
Locking people up for their addictions is an expensive way to perpetuate the problem. Much has been written about the War on Drugs and our inclination to arrest and incarcerate drug offenders, but the numbers don’t lie – black men are almost 4 times as likely as whites to be arrested for marijuana possession, despite similar rates of usage.
Almost one-fourth of all inmates in America have drug charges. And they have the worst recidivism rates among repeat offenders. Diverting all but the most serious dealers to treatment programs would go a very long way toward reducing our jail and prison populations. Many drug users deal low-level amounts of drugs to pay for their own supply, but they’re charged under the same laws as violent drug kingpins.
People in crisis from mental health or drug addiction need to be dealt with by caring health professionals and treated for those problems – not arrested. Police departments can be turned into well-funded public safety departments, staffed with crisis managers who triage calls for assistance to the appropriate type of responders. Mental health, drug counselors, and other social services like housing and health care specialists should be at the fingertips of these first-line helpers.
Similarly, if over-policing in minority urban neighborhoods was curtailed, we’d avoid the confrontations that police sometimes instigate in the service of investigating “suspicious behavior” – often a thinly veiled cover for racial profiling. Young men of color, especially, are viewed by police as a threat, monitored and harassed. Since so many of them have a record, police can almost always find some excuse to question or detain them, and inevitably arrest them. These interventions do not make communities safer – they engender mistrust, anger, and broken families.
Many states have begun to divert drug offenders, delinquent youth, pregnant teens, family disputants, and other offenders away from jail and prison sentences. They’ve recognized that incarceration will only worsen the problem, destroying families and turning those jailed into more effective criminals. In many cases, diversion to community service, home confinement, or restorative justice solutions – which seek to instead make crime victims whole – can be cheaper and more just and lasting methods to address unwanted behavior.
Handcuffs, a squad car, a jail cell and a stack of charges brought by overzealous prosecutors en route to an inevitable plea deal is often the wrong answer. But at the moment, that hammer is perceived as the only tool we have, especially in low-income minority neighborhoods. So every defendant begins to look less like a human being, and more like that proverbial nail.
Over-policing and the impunity that cops act with is a direct result of our failure as a society to distinguish between real crime that requires sanction and the inequality that drives primarily poor and minority youth to illegitimate and antisocial behavior, requiring a different kind of correction. Politicians stoke society’s fears and the nightly news reinforces racist stereotypes.
When police become subject to professional licensure, liability, insurance, and audit requirements that many other professions live with, they may then demonstrate the kind of responsible behavior we expect. When we abolish qualified immunity and the police unions that defend bad cops, and put the needs of the public above those that supposedly serve and protect them, we will begin to address the “us vs. them” mentality that dominates policing in this country and drives up arrests.
Fixing our justice problem must begin with arresting and jailing fewer people, especially addressing the racial imbalance that so badly perverts our ideals of fairness and equality under the law. Real reform of courts and corrections cannot take place effectively with so many people in the system.
2) Ensure Courts Deliver Justice
When possible, we should avoid unnecessary arrests that don’t enhance public safety. When we have to detain people, we should divert as many of them as possible to alternative avenues of justice, in the types of cases described above.
When that’s not an option, and defendants are caught up in the traditional system – arrested, charged, indicted, sentenced – we must start to ensure that the punishment better fits the crime. After all, there are some crimes, especially violent ones, that deserve the carceral sanction that only the conventional justice system offers. When we root out up front those who don’t belong under its thumb, we can deal more effectively with those who do.
Right now, prosecutors have entirely too much latitude and a free upper hand over the accused. Too many district attorneys seem to believe that their job is to inflict the maximum possible penalties on defendants, for fear of being called soft on crime at election time. Judges often have too little discretion, given mandatory minimums, lengthy pleas, and sentencing enhancements prosecutors rely on to put people away for decades.
We need to return to a more humane notion of fairness in sentencing in this country. Excessively long sentences put undue burdens on taxpayers, leave children parentless, and create lifers who can no longer function in society. Research has shown that longer sentences do not function as a deterrent to crime; the certainty of being held accountable is far more effective. And it’s clear that minorities consistently receive significantly longer sentences for the same crimes. Five-, ten-, and twenty-year sentences are handed down routinely in this country for offenses that used to garner a couple years behind bars. Throwing away the key is a poor substitute for real reform.
There are good reasons that mandatory minimum sentences became commonplace at the federal and state levels over the past five decades, but their harms have now clearly outweighed their benefits. The War on Drugs criminalized addiction, and then made the penalties for that disease unthinkably harsh. New York’s Rockefeller drug laws popularized mandatory sentences, and they bled over into numerous other parts of the criminal code. They tied judges’ hands and became a cudgel prosecutors use to hang excessive sentences over defendants heads in order to secure lengthy plea deals. It’s time we simply declared mandatory minimum sentences a failed experiment in reductive jurisprudence, and return discretion to judges and bargaining power to defense attorneys.
‘Habitual offender’ and other, similar enhancements – to include three strikes provisions – should also become a relic of the past. Sentencing enhancements give prosecutors far too much power in plea negotiations, and are in practice often applied in a racially discriminatory fashion. They are directly responsible for some of the most outlandish and inappropriately long sentences that capture headlines, and unduly reduce jurisprudential discretion.
There are other prosecutorial tactics that deserve our condemnation and need to be abolished. Foremost among them is the systematic abuse of ‘stacking’ charges to force plea deals. When defendants face long sentences associated with multiple felonies for a single criminal act, they often see little choice but to accept a plea in exchange for some charges being dropped or penalties reduced. Similarly, defendants understand that if they insist on going to trial, prosecutors will stack up as many charges as they’re able, as a ‘trial penalty’ for exercising their constitutional right.
A few states are also starting to recognize that convictions based solely on confidential informant testimony often result in innocent men going to prison and risk being overturned upon review. Convictions of this type should be disallowed entirely, but if that’s not possible, juries should know what benefits prosecutors have offered informants for their testimony. And these cases should automatically be reviewed by conviction integrity units, where they exist. Informant-based convictions make up a large percentage of cases in which defendants are later found innocent.
The practice of handing down long sentences and then suspending a portion of the time, common in many states, also needs to end. This ‘backup time’ keeps defendants under the Court’s thumb, often for years after probation terms end. The imposition of backup time also returns offenders to state prisons for long periods for minor violations of supervised release terms, or for the smallest misdemeanor.
The ‘cash bail’ system still prevalent in many localities needs to end. There has been widespread recent recognition that even minimal bail amounts keep poor people – particularly men of color – behind bars simply for being financially insolvent. Pre-trial detention should be used far more judiciously, and reserved solely for those who pose flight risks or a danger to the community. All others should be released without financial consideration. For those the Court wishes to monitor, home confinement or electronic supervision can be employed.
The public defender system is also wholly broken. Reducing the number of defendants in the system will make it somewhat more manageable, but it’s probably time to refashion it entirely, relying more heavily on court-appointed private attorneys to protect defendants. Most public defenders are doing the best they can under difficult circumstances, but too many poor defendants of color still get sloppy legal assistance, and serve far more time than they should as a result. Further, many defendants perceive their nominal advocates as working too closely with prosecutors to secure quick plea deals, given heavy caseloads, and failing to represent their interests fully.
Finally, courts need to more judiciously impose probation requirements – not as a default in almost every sentencing order – but with the understanding that it imposes burdens on defendants from missed work, additional expenses, and social stigma. Probation violations, even minor ‘technical’ ones like missed meetings with probation officers or failure to pay fees, can result in a trip back to jail or even prison, and that practice needs to end. Other sanctions are available, such as community service or home monitoring. Filling our jails and prisons with technical probation violators isn’t making American society any safer.
3) Make Corrections More Humane and Effective, and Less Profitable
As noted earlier, 600,000 people a year walk out of prisons and back into society. Within three years, about 400,000 of them – two out of three – will be back behind bars. Prisons are ugly, violent, dangerous, dirty, loud, and stressful places. So people definitely aren’t returning because it’s enjoyable. And this is to say nothing of the revolving door that our local jails have become: catch-alls for society’s forgotten, addicted, afflicted, and dispossessed. When any institution has a track record of failure this dramatic, it’s time to fundamentally reexamine it.
Jails and prisons in this country are badly overcrowded with low-level drug offenders, probation violators, and elderly inmates serving astonishingly long sentences. They’re doing little more than warehousing addicts, minorities, and the poor without regard for their future re-entry back into the community. And they’re dangerously understaffed relative to the excessive number of people behind bars.
The serious and often violent offenders inside who actually need help aren’t getting it, because of these shortcomings. Right now, our carceral system is structured to fail everyone involved: inmates, crime victims, officers and staff, and the public in whose name the public safety enterprise purports to operate.
The only thing our prison system is actually good at is producing profits for those who feed at its bountiful trough: the corrections officer unions, private prison companies, telecoms, GPS ankle monitoring firms, commissary and meal providers, manufacturers that make cheap linens and jumpsuits in China and Pakistan, less-lethal weapons makers who produce Tasers and pepper spray, ‘treatment’ providers, medical staffing companies, municipal bond financiers, probation officers, and endless others.
The $80-100 billion American taxpayers spend annually to lock people up, line the pockets of these companies, and provide perpetual employment to these professions isn’t making society safer. It’s a ‘self-licking ice cream cone’ – a perpetual motion machine – that seems designed only to keep itself thriving.
A fundamental societal imbalance exists when such vast corporate profits and so many paychecks are dependent upon the deprivation of this many Americans’ liberty. The state should never outsource so elemental a responsibility as jails and prisons to private companies. The very notion of a ‘private prison’ built expressly to produce profits off fellow citizens’ subjugation ought to offend us. We can start to remedy this immoral equation by taking the profit motive out of incarceration.
Privately-run detention facilities ought to be outlawed under federal law. And it’s not enough for the federal system to eschew their use; any state or county that relies on them should be denied federal funds of any sort. Further, jail and prison support contracts that states and localities are forced to outsource, such as food or medical care, should by law be competed first among public sector entities like public hospitals and universities, or non-profit organizations.
Several states now have successful partnerships for inmate medical treatment through university hospital systems, and that model can be replicated. Similarly, re-entry and community supervision functions should be maintained by governments. Private prison companies are moving into this re-entry space as a way to diversify revenue and hedge bets against a private prison backlash.
When we’ve cleared out of our jails and prisons those who don’t belong there, we can better provide real services to those who remain. Caseloads for counselors, teachers, psychiatrists, and other professionals in the system will become manageable. State corrections departments and county jails will also no longer have massive staffing shortages, when officers have far fewer inmates to supervise. At the moment, CO’s can do little when trouble breaks out besides deploy their pepper spray – or call in a special response team, who will restore order by using indiscriminate and overwhelming force. Usually, they just let inmates work it out on their own.
A majority of inmates need educational assistance to get a GED or learn a trade if they already have a diploma. Education and vocational training are often the first things cut when state corrections agencies run into budget shortfalls. They’re also too often curtailed when security conditions that stem from overcrowding and understaffing force constant lockdowns and cancellations. Teachers are often amateurs.
Vocational training should be expanded so that no inmate leaves prison without a viable means of making a living. Some prison systems lack these opportunities entirely. This includes proficiency with the internet; too many inmates leave prison today unfamiliar with the connected world that most employers expect them to navigate. Administrators’ protest that inmates will abuse online access, but it’s easy to monitor, given the proper resources. Finally, job placement assistance, both before and after release, should be as mandatory as vocational and educational programs. Inmates’ good time credits should be wed directly to participation.
Prisons and jails should severely curtail the use of extended solitary confinement in all its forms, and be forced to justify and report on any exceptions that necessitate its use. Inmates should be single-celled where cells are in use; the confinement of two adult strangers in a space the size of a parking spot constitutes cruel and unusual punishment in itself, no matter what the Supreme Court says.
There are other ways to make filling jails and prisons a less attractive option for states and localities. All fees for inmates and their families could be eliminated for phone calls, email messages, transferring funds, medical treatment, and many other functions. Far fewer companies would compete to offer states and counties kickbacks, or service these public entities, if profits were capped or curtailed. The public sector would be forced to find lower-cost or free solutions.
Paying inmates the minimum wage for work – or at least a living wage – might force states and localities to reconsider the costs of locking up so many people. Jails and prisons function at a steep discount at present. Without virtually free inmate labor to do the laundry, cooking, gardening, maintenance and other basic tasks, many would have to rethink their business model of keeping so many locked up for so long. And inmates and their families could surely use the money, especially when they get out.
We should only have as many jail and prison inmates as are necessary to maintain public order. And those who remain in the system should be treated like they’re someone’s father, mother, brother, or son – like they matter. At the moment, our lockups are teeming with men of color trapped in a cycle of poverty, miseducation, and corporate profits at their expense.
Accountability and Change
Results matter, and we’ve acted for far too long as if they don’t. Prison systems, and to some degree jails too, should be judged first on their recidivism rate, and second on returned citizens’ job placement. Police departments should be reviewed on how many citizen complaints or lawsuits are lodged, and how many shootings of civilians occur. And our court systems and District Attorneys should be evaluated not by how many convictions they get or years of prison time they hand down, but rather by how many defendants are diverted to alternatives, and appear only once before them.
We need oversight and accountability at every level of the system – federal, state, and local – in policing, courts, and corrections. We need new measures of effectiveness beyond the tired statistics we’ve relied on in the past. Citizen review boards, sentencing review commissions, and conviction integrity units can help. And county jails – typically run by sheriffs who answer to no one – should come under the oversight of both citizen panels and state corrections agencies for regular reviews.
Can 18,000 police departments, 10 million criminal cases annually, and 6,000 jails and prisons spread across one federal system and 50 state systems be held to account? They can and they must if we are serious about changing the conditions that led to the murder of George Floyd, Breonna Taylor, Michael Brown, and too many others.
It will require funding from the federal government and states, of course – but there are billions of dollars to be saved by the proposals above. We spend $9 billion dollars a year alone keeping 100,000 senior citizens behind bars – most of whom no longer pose a danger to anyone.
In the end, the federal government can only do so much. It can lead by example, certainly. It can tie the funding it sends to states explicitly to reforms on policing, courts, prisons, and oversight mechanisms. It can use recidivism rates to pressure states to do better. It can refuse to enrich private prison companies and set strict standards and profit limitations for the contractors that feed at the trough of the prison-industrial complex. And it can revise federal sentencing guidelines that inform state systems.
Is this everything that needs to happen to effect real justice reform in America? Certainly not. All the items on this agenda may not be possible in four short years, or even eight. And structural reform won’t change racist attitudes or stop addicts from chasing the next high.
But taken together, these changes can reorient our justice and incarceration policies in this country toward a more humane approach over time. People’s lives matter too much to throw them away so casually.
There’s nothing inevitable about the systemic injustice we’ve let our justice system become, especially over the past fifty years. Our willful blindness and refusal to look at what goes on behind the walls feeds it, and our silence waters it. It undermines all the other ideals we cherish as a nation of supposedly free people.
In 1972, US District Court Judge James Doyle gave us these sobering words: “I am persuaded that the institutions of prison must end. In many respects it is intolerable within the United States as was the institution of slavery, equally brutalizing to all involved, equally toxic to the social system, equally subversive of the brotherhood of men, even more costly by some standards and probably less rational.”
Almost 50 years later, it’s time we finally took these words seriously and said: “Enough.”