Criminal Justice Reform: Progress and Promise
By Wista Jeanne Johnson
The arrest, conviction, and sentencing of notorious figures (e.g., Ted Bundy, Ted “Unabomber” Kaczynski, or Dzhokhar Tsarnaev (one of the Boston Marathon bombers) reinforces public confidence in law enforcement, prosecutors, and the courts and fosters the belief that the American system of criminal justice laws, policies and practices are effective in reducing crime, keeping communities safe, and in administering equal justice.
Proponents of criminal justice reform, however, cite the flaws, racial disparities, and inequality of the carceral system from arrest to sentencing that, according to The Sentencing Project, has made the United States, “the world leader in incarceration” with over two million behind bars.
Last month, I joined 30 editors and journalists from around the country for a two-day webinar, “Rethinking the American Way of Punishment: What Are Prisons For?” sponsored by The Center for Media, Crime, and Justice at John Jay College in New York City and Arnold Ventures to provide greater insight into the roots of mass incarceration and the long-term consequences of current approaches to punishment.
Experts in the fields of mental health, corrections, law enforcement, the courts, prison and jail reform, criminology, and academia shared historical and current perspectives on topics from transformative justice to geriatric prisoners.
“How Did We Get Here?”
Frank Baumgartner, who holds the Richard J. Richardson Distinguished Professorship in the Department of Political Science at UNC-Chapel Hill and who co-authored Throwing Away the Key: The Unintended Consequences of “Tough on Crime” Laws, reflected on the “perfect storm of political circumstances,” which led to punitive policies, such as sentencing 15- and 16-year-olds “to die in prison from old age, perhaps 70 years later.”
Baumgartner attributes the nation’s trend toward retribution and punishment to several factors, including a dramatic rise in the violent crime rate in the 1960s and 1970s, accompanied by increased public support for punitive approaches to crime.
In addition, the number of states with “life without parole” laws grew from two states in 1980 to all states by the 1990s and “three strikes you’re out” laws increased from two states in 1980 to 30 states in 1990s.
Christine Montross, M.D., psychiatrist, and author of Waiting for an Echo: The Madness of American Incarceration, explained how the de-institutionalization of state-operated mental hospitals, which began in the 1950s, led to the current “confluence of mental illness in the criminal justice system.”
According to Montross, “trans-institutionalization” best describes the shift of those with severe mental illness from “the auspices of healthcare to into the auspices of the criminal justice system.”
“Twenty percent of people in our nation’s jails and 15 percent in prisons have a severe mental illness …. people with schizophrenia, people with bipolar disorder, and people with major depression so significant that they’re thinking of hurting arming themselves. This doesn’t even encompass the number of people who struggle with mild depression, anxiety, and substance abuse issues.
“With more than 350,000 in our country with severe mental illness in our jails and prisons …. (We have reached) the point where the largest psychiatric institution is in Cook County jail in Chicago.”
Jeremy Travis, Executive Vice President of Criminal Justice at Arnold Ventures, and former president of John Jay College of Criminal Justice at the City University of New York spoke of the need to expand on the popular perception of “incarceration.”
“When we think about punishment and punitiveness in the American context, we are often prison-centric in our definition of punishment.”
Travis said that the “era of punitive excess” extends far beyond prison and cautions that “the state has become overly punitive …. and overly intrusive in people’s lives.”
He denounced the “misdemeanor system of justice,” which has fueled the growth of jails (10-12 million people churn in and out each year); the extended reach of state control through probation and parole; the legislative impositions on liberty that deny someone with a felony conviction access to voting, food stamps, educational opportunities, or certain jobs; and a system of fines (monetary punishments for infractions, misdemeanors, or felonies*) and fees (itemized payments for court activities, supervision, or incarceration charged to defendants determined guilty of infractions*).
“Something happened in the politics of this country,” according to Travis, “that made it easier for our democracy to diminish the full citizenship of some of us, typically, young black men …. (and) we haven’t mentioned enough the history of white supremacy, and the ways in which the American history of domination of those of African descent or indigenous peoples, or others who have followed, that the criminal law has been a way of expressing something uniquely American about our desire to divide along the issues of race and poverty.”
What’s Ahead?
Despite significant reforms in some states, most panelists agreed that many challenges lay ahead in the effort to transform the current criminal justice system from a punitive model to a humane one.
Debunk the myth that locking people deters crime or makes communities safer. (Professor Frank Baumgartner) “There’s a role in journalism to question why so many white middle-class people think that mass incarceration keeps us safe. What is there about the rhetoric out there, the accepted stories and narratives about punitive politics, that makes us think it’s a good idea? …. The white middle-class community is not concerned with these policies because we don’t bear the brunt of them …. and have a misunderstanding about how much we’re being kept safe by these policies…. We believe that they work but it’s quite questionable.”
Elect more progressive prosecutors (Philadelphia District Attorney Larry Krasner) “People are saying they want criminal justice reform. They do not want mass incarceration and with every election cycle we are getting more progressive voters joining the electorate and we are seeing this change …. not in every state, not in county, not in every rural jurisdiction, but the people in general are already there.”
Eliminate stigmatizing language (Hon. Angel S. Harris, Orleans Parish (LA) Criminal Justice Court) “I don’t refer to anyone in my court as a felon (but) as someone ‘previously convicted’ or (who) ‘has a record.’ I try not to use any of those labels in court because once you stamp someone with that word “felon,” in particular, in the United States or Louisiana, there are a lot of collateral consequences and stigma that come with that.”
End the criminalization of women and girls (Sydney McKinney, Ph.D., executive director of the National Black Women’s Justice Institute) “Like black men, black women are disproportionately overrepresented in the criminal legal system and unfortunately their experiences, and their narratives are virtually invisible. The aim of our organization is to identify community-led solutions to violence and crime that are rooted in healing.…We want to eliminate the punitive paradigm on which the U.S. criminal legal system was built on and which perpetuates racial and gender oppression in this country.”
Utilize crime data to accurately reflect trends in crime (Michael Romano, director and founder of the Three Strikes and Justice Advocacy Projects at Stanford Law School) “There have been a lot of stories about crime waves, particularly in California, and national media stories about stores closing due to organized shoplifting gangs and reactions to, especially, progressive prosecutors, particularly in Los Angeles and San Francisco. The problem with so many of these stories is that reporters frequently skipped the step of checking the crime data, which is often published online, updated regularly, and publicly available, and this data often doesn’t match the anecdotal reports …. of rampant shoplifting and crime …. I’m not saying these stories are not true, but sometimes, they are exceptions to general trends …. and frequently run in the opposite direction of what we are hearing from leaders.”
Integrate and improve post-release services (Terah Lawyer-Harper, program manager at Impact Justice in CA) “…. When we envision individuals coming home from prison …. we lose touch with what that actual process looks like, and I think it’s imperative that we examine our current system and how people re-enter the community, and why some of the challenges that contribute to the recidivism rate are systematically put in place to assist people in failure. We know that individuals who are invested (with) housing support, transportation support, access to technology, and services have a higher success rate.”
A Brighter Road Ahead
Several panelists expressed optimism about future criminal justice reforms based on recent political victories.
For example, reform-minded prosecutors have been re-elected in several cities. According to “The Facts on Progressive Prosecutors,” published by The Center for American Progress, a nonpartisan policy institute, “In Cook County, Illinois, State’s Attorney Kim Foxx has implemented a suite of reforms, including raising the threshold for felony charges of retail theft to $1,000 and increasing the use of diversion programs as an alternative to incarceration by 25 percent.
“In Philadelphia, second term District Attorney Larry Krasner has pushed for police accountability, reduced the use of cash bail, and prioritized lighter sentencing recommendations and terms of probation.30 Krasner’s pledge to curb mass incarceration has contributed to a 30 percent decrease in the jail population and a 46 percent decrease in the average length of sentences.”
Keynote speaker Martha Minnow, who is the 300th Anniversary University Professor at Harvard University and author of Saving the News: Why the Constitution Call for Government Action to Save the Freedom of Speech touted the potential of transformative justice programs.
Such programs focus on the repair of harms and wrongs rather than punishment, said Minnow, by promoting “encounters and cooperative meetings among those who are harmed, those causing harm, and other willing stakeholders to discuss what happened, and more importantly, to explore potential consequences and responses.”
Minnow provided an example of the healing power of transformative justice. On May 13, 2018, Matthew Lee, 50, attacked 87-year-old Young Kun Kim, a Lehman College professor, who had just withdrawn $300 from an ATM. During the ensuing struggle Kim fell, hit his head, and died of a brain bleed three days later. The Manhattan DA charged Lee with murder in the Second Degree and robbery in the First Degree.
According to the New York Post, “As part of a plea agreement, Lee participated in a face-to-face meeting with Jinsoo (Kim’s son) in the presence of a mediator last month. The restorative justice program encourages victims and their families to engage directly with the person who has wronged them.”
As a result, Lee’s charge was reduced to First Degree manslaughter, and he received a 10-year sentence. At sentencing, Jinsoo told Lee, “I can’t choose how much I hurt, but I can choose how much I hate — and I choose to not hate you anymore.”
The good news said Minnow is that “transformative justice is taking off in this country in high schools, juvenile courts, and increasingly in adult courts.
“We Need Each Other”
Renaldo Hudson, director of education for the Illinois Prison Project, who had his life sentence commuted in September 2020, urged the inclusion of those most impacted by the carceral state in any public discourse, so they can share their stories and experiences.
“One of the things that I want to add to the conversation is the reality of the need for an eclectic group of people, people that would normally not speak to each other, to actually sit down and share our different perspectives (on punishment).
“As someone who spent 37 years within the walls of correction …. I think it’s important that when we think about how do we re-shape and change the narrative, we have to talk about what encourages people to not just be better citizens, but also remind society that to the least of us, the strongest of us have to extend a hand of hope.
“There are hundreds, if not thousands, of men and women who are incarcerated and are ready to come back and be productive members of society, but we have to be willing to give them a chance.”
* “Fines, Fees, And Bail Payments in The Criminal Justice System That Disproportionately Impact the Poor” (Council of Economic Advisers Issue Brief, December 2015)
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