Many people trapped in the justice system today were victims themselves of trauma or addiction, says Karol Mason, who was appointed the fifth president of the country’s leading justice university this year. In an interview on the “Criminal Justice Matters” CUNY-TV program, she argued that innovative programs already underway demonstrate how social service providers, courts and police can successfully cooperate to reduce America’s justice-involved population.
Reform of the U.S. justice system requires “thinking outside the silos” that have separated courts, police and prisons from other institutions that can provide alternative pathways to help justice-involved people become productive, law-abiding citizens, says the new president of John Jay College.
Karol Mason, who left her post as a senior official in the Department of Justice (DOJ) to become head of the country’s preeminent educational institution for criminal justice in August, said educational training, family counseling, substance abuse treatment, job counseling, and other social services are critical tools for a “holistic” approach to criminal justice reform.
John Jay students and President Karol Mason. Photo courtesy John Jay College.
“Many of the people in our criminal justice system (now) were victims first,” she said in a Criminal Justice Matters program aired on CUNY-TV, a public broadcasting channel for the metropolitan New York region, this week.
She noted that there was already a substantial body of research and evaluation showing the long-term value of programs focused at both the “front end” of the justice system and at helping those currently imprisoned to develop the skills for successful reintegration into society.
“Criminal justice is not something that operates in a silo,” she told program host Stephen Handelman, editor of The Crime Report. “The need for reform reflects back on other failures in other parts of the system.”
She gave as an example the current opiate crisis and the growing realization that criminalizing addicts is the wrong approach to a problem that has complicated roots.
“We shouldn’t be putting people in jail for addiction,” she said, adding that players in the criminal justice system in many jurisdictions around the country are already beginning to work with social service organizations in diversionary programs that focus on drug treatment, mental health, jobs, education and housing.
Karol Mason, former head of the Office of Justice Programs, with (l-r) Valerie Jarrett, former White House Special Advisor, former President Barack Obama, and former Attorney-General Eric Holder. Photo courtesy Karol Mason.
“People are (already) thinking outside their silos,” said Mason, who was Assistant Attorney General in charge of the Office of Justice Programs during the administration of President Barack Obama.
“They are recognizing that the justice system is the last resort, the last response to other failures.”
Mason said that the “Smart on Crime-Innovations” conference held last month at John Jay, which brought together academics, practitioners and advocates from across the ideological spectrum, demonstrated that the movement for change was strengthening around the country—especially at state and local levels.
“There’s power when you have people come together from different walks of life and different perspectives who all agree we need criminal justice reform,” she said.
Editor’s Note: Video reports of John Jay’s “Smart on Crime-Innovations” conference are available on YouTube here.
Mason said John Jay College, which opened in the 1960s as a branch of the publicly funded City University of New York to offer a liberal arts education to police officers and now boasts a student body of nearly 15,000, would continue to serve as a national resource for research and innovation under her leadership.
Citing programs such as the pioneering Prison-to-College Pipeline, which brings students and college faculty into prisons to prepare inmates about to be released for higher education, she said John Jay would remain in the forefront of exploring alternatives to traditional approaches to crime and punishment—focusing especially on helping keep individuals from becoming involved with the justice system in the first place.
“We’re a safe space for people to have tough conversations about justice issues.”
The entire “Criminal Justice Matters” program can be viewed here. Readers’ comments are welcome.
Senators Charles Grassley (R-IA) and Mike Lee (R-UT) tell a conference sponsored by the conservative Charles Koch Institute that they are campaigning hard to pass an overhaul of federal sentencing laws. The Charles Koch Foundation released a four-volume report on “Reforming Criminal Justice” that is aimed at being accessible to policymakers and to the public.
The long-stalled effort to overhaul federal sentencing laws still stands a decent chance of passage in Congress despite opposition in the past by Attorney General Jeff Sessions, two Republican senators told a criminal justice conference on Thursday.
Senate Judiciary Committee Chairman Charles Grassley (R-IA) said that Sessions, a longtime former colleague in the Senate, “is willing to work with us on sentencing reform.” Sessions voted against a previous version of the bill on the ground that it would have gone too far in reducing mandatory minimum sentences for some crimes.
It is widely assumed that Sessions would play a major role in determining the Trump administration’s views on the bill. Grassley said there is “some support” for the measure in the administration, a possible reference to Trump’s son-in-law, Jared Kushner, who has been assigned by the president to work on criminal justice issues.
Grassley and Sen. Mike Lee (R-UT) were among speakers at a day-long conference in Washington, D.C., sponsored by the conservative Charles Koch Institute. The conference was titled, “Advancing Justice, An Agenda for Human Dignity & Public Safety.”
During the high-crime 1980s and 1990s, when Congress enacted many of the mandatory minimum sentence laws still on the books, Grassley said that as a new senator, he supported them.
Grassley still supports some mandatory minimums, but he now agrees with critics that some of the laws have resulted in “significant costs,” both to taxpayers who must pay to house inmates for long terms on minor offenses, as well as costs to “families and communities.”
Sessions was a leader in the successful 2010 effort to amend sentencing laws that imposed a much higher penalty for crack cocaine offenses than powder cocaine violations, Grassley said, demonstrating that the Attorney General does not oppose all changes in federal sentencing laws.
In a separate program at the conference, Sen. Lee said that the sentencing-reform bill would get at least 70 votes in the Senate if it were brought to the floor.
Lee called it a “lazy argument” that favoring sentencing-law changes means being “soft on crime.” He said, “We are tough on crime. We also have to be smart.”
“What we’re doing now [on sentencing] is not working,” said Lee, a former federal prosecutor. He challenged those who oppose reform proposals, “Let’s hear their ideas.”
Lee spoke along with former Sen. Jim DeMint (R-SC) in a session subtitled, “Redefining Tough on Crime.”
DeMint said, “We have entirely too many people in prison,” observing that many inmates behind bars on minor drug offenses “come out hardened criminals.”
While Congress has failed to pass most criminal justice reform bill in recent years, states are a “bright spot” by tackling various justice issues, Lee said.
Before the conference, the Koch Foundation released a four-volume report titled, “Reforming Criminal Justice,” which editor Erik Luna, a law professor at Arizona State University, said is “meant to enlighten reform efforts in the United States with the research and analysis of leading academics.”
The volumes, which are available at this site, include 57 chapters covering dozens of topics within the areas of criminalization, policing, pretrial and trial processes, punishment, incarceration, and release. Luna said the report is written with the idea that it should be easily understandable by policymakers and lay readers.
Among other subjects addressed by conference speakers Thursday were policing, lessons for cities in tackling violent crime, a holistic approach to the opioid crisis, militarization of police, the future of marijuana policy, “restoring victims of crime,” and “reining in overcriminalization in America.”
At the violent crime session, former New Jersey Attorney General Anne Milgram, now a professor at New York University Law School, urged reformers to spend more effort on the “front end” of the criminal justice system, so all suspected offenders are not “funneled in” to a “one size fits all” legal process.
Milgram urged more attention to diverting crime suspects to mental illness and drug treatment rather than putting many of them on a path to prison.
Asked to discuss why Chicago’s crime problems are so much worse than those in other urban areas like New York City, Milgram said that shootings in the city are down as much as 20 percent this year, and that a disproportionate amount of Chicago’s homicide totals are concentrated in five neighborhoods.
In opening the conference, Brian Hooks, president of the Charles Koch Foundation and Charles Koch Institute, called criminal justice reform “an issue whose time has come” and forecast that “there is progress on the horizon at the federal level.”
Pennington County, South Dakota is 1 of 40 jurisdictions to receive funding through the Safety and Justice Challenge (SJC) to plan and implement strategies to safely reduce jail populations. The Safety and Justice Challenge is a five-year, $100 million investment … Continue reading →
Pennington County, South Dakota is 1 of 40 jurisdictions to receive funding through the Safety and Justice Challenge (SJC) to plan and implement strategies to safely reduce jail populations. The Safety and Justice Challenge is a five-year, $100 million investment by the John D. and Catherine T. MacArthur Foundation to help jurisdictions across the United States create more effective local justice systems. Pennington County is among eight sites to receive additional SJC funding this month to fully implement its justice system reform strategies.
Guest Blogger: Vaughn Vargas, Community Advisory Coordinator, Rapid City, South Dakota, Police Department
According to the 2010 Census, Native Americans make up 10 percent of the population of Rapid City, South Dakota, but, due to a large transient population, officials estimate the number to be closer to 23.5 percent. Regardless, arrest data from October 2013 to January 2015 show that Native Americans made up 59.1 percent of those arrested over that period, and the county jail has an inmate population that is approximately 51 percent Native American.
Through the Safety and Justice Challenge, Pennington County developed a strategy that includes initiatives that address the overrepresentation of Native Americans, including expedited case processing, community supervision, pretrial diversion, and tribal outreach. We’ve experienced some early success: over the last year, Pennington County reduced the jail population by 10.16 percent, enhanced an existing strong collaboration of justice system stakeholders, engaged the community in our reform efforts, and designed solid strategies for meeting the goal of a 20-24 percent reduction in the jail population over the next two years. We are excited to announce that we received additional funding from the MacArthur Foundation, which will allow us to implement the initiatives listed above to their full extent and to achieve our jail reduction goal. We plan to build on our early successes to ensure sustainable change within Pennington County.
In Pennington County, our law enforcement leaders have been strong drivers of our reform policies. For example, Pennington County law enforcement adopted a “Cite and Release” policy for petty offenses, such as shoplifting, trespassing, public consumption, etc. However, we found that in the case of Native Americans, we were making many custodial arrests because individuals did not have “acceptable” identification, so they had to be taken to jail to verify their identity by fingerprints. We addressed this problem by recognizing the tribal government identification cards as valid identification.
Other challenges causing overrepresentation and longer stays by Native Americans in the jail include societal factors such as poverty, homelessness, addiction, mental illness, and unemployment. To address these challenges, Pennington County’s tribal outreach includes five strategies:
Issuance of Tribal and State Identification on Reservations— Although law enforcement is trained to utilize all forms of identification (state and tribal ID) as noted above, there are still individuals who are arrested and brought into the jail because they have no form of identification. In order to reduce the number of custodial arrests occurring due to lack of any identification, we plan to implement a program where individuals can gain a tribal and/or state identification. We plan to implement a pilot program within one tribal community initially with a plan to expand to other communities.
Warrant Resolution—The court will establish programs to resolve cases and warrants on tribal land allowing misdemeanor warrants to be cleared without a custodial arrest;
Community Service on the Reservation—Defendants can carry out their community service on the reservation in lieu of jail time for appropriate crimes;
Jail Service on the Reservation—Defendants can complete jail sentence in a tribal jail, which will build better relations with the Tribes and allow for easier visitations for friends and family members on the reservation; and
Unilateral Extradition— Tribal and federal law currently do not mandate extradition of defendants, as between Pennington County and the three adjacent Tribes. Only by mutual agreement is any type of extradition possible. The Sheriff’s Office and the Police Department intend to pursue the practice of extradition from Pennington County to the Tribes as a first step in developing extradition agreements. We believe unilateral extradition from Pennington County to the requesting reservation is a first step to increasing cooperation and trust between tribal and Pennington County law enforcement.
Additionally, a large portion of our law enforcement and community health resources were being allocated for “familiar faces,” a group who turned out to be a small portion of our community and whose underlying problem was chronic alcoholism. To address these individuals, Pennington County introduced the “Safe Solutions” facility, which significantly expands our detox capacity and creates alternatives for nuisance-type crimes. With the new funding from the MacArthur Foundation, we will expand the Safe Solutions facility to include additional beds for males, and add beds for females.
What does this mean to our local law enforcement agencies? Funding and technical assistance provided through the Safety and Justice Challenge will continue to allow Rapid City and Pennington County to tailor solutions specific to our community, identify incarceration drivers, and ensure we hold public safety paramount. Most importantly, it has allowed law enforcement to provide insight to key justice system stakeholders, have a significant voice in local criminal justice system reform, and will provide continued opportunities for sustained stakeholder collaboration for years to come.
The John D. and Catherine T. MacArthur Foundation announced today that eight jurisdictions would receive $11.3 million in additional funding through the Safety and Justice Challenge to fully implement jail-reduction strategies they have been planning for over two years. The … Continue reading →
The John D. and Catherine T. MacArthur Foundation announced today that eight jurisdictions would receive $11.3 million in additional funding through the Safety and Justice Challenge to fully implement jail-reduction strategies they have been planning for over two years. The MacArthur Foundation created the Safety and Justice Challenge (SJC) initiative to support more just and effective local justice systems that improve public safety, save taxpayer money, and yield fairer outcomes for individuals and communities.
The IACP is a Strategic Ally for the SJC initiative working on numerous fronts to encourage and support law enforcement leaders in implementing progressive reforms, promote enhanced collaboration with other justice stakeholders, and work proactively on pre-arrest diversion tactics to ensure the community has access to the behavioral health resources it needs to keep low-risk individuals out of the criminal justice system. IACP is one of 12 Strategic Allies engaged in the SJC and works with other partners in the SJC Network to provide support for the justice system stakeholders implementing these innovative initiatives in the 40 Challenge sites.
The eight cities and counties, all of which were among the original 20 sites chosen in 2015 to participate in the Challenge, are Ada County (ID), Cook County (IL), Los Angeles County (CA), Mecklenburg County (NC), Multnomah County (OR), Palm Beach County (FL), Pennington County (SD), and Shelby County (TN). With technical assistance and funding from the MacArthur Foundation, these jurisdictions are developing and modeling innovative and effective strategies to keep low-risk offenders out of jail, reintegrating those who must be confined back into the community upon release, and collaborating with system partners and the community to help them stay out of jail thereafter.
Strategies for achieving these goals include:
the use of automated court-date reminder systems to reduce “failure to appear” rates,
risk-based pretrial management systems so decisions for pretrial release or detention are based on standardized assessments of risk,
improved case processing systems or the addition of case processing specialists,
provision of legal identification cards and transportation to prearranged treatment and/or housing placements for individuals leaving custody, and
addressing racial and ethnic disparities through implicit bias education.
To address the challenges of addiction and mental illness, many of the jurisdictions are turning to pre-arrest diversion programs and opening facilities that provide law enforcement partners with placement options for these arrest alternatives. Other law enforcement strategies include the use of citation in lieu of arrest, and risk tools to make point-of-arrest decisions that can help to reduce racial and ethnic disparity.
The IACP looks forward to continuing to work with and support the 40 jurisdictions involved in the Safety and Justice Challenge in their on-going efforts to model reforms that create fairer, more effective local justice systems across the United States.
A legislative proposal designed to curb Wyoming’s growing prison population seemed to have broad-based support. Yet it died without a vote. WyoFile tries to figure out why.
WyoFile looks behind the legislative veil in Wyoming in an analysis headlined, “Who Killed Criminal Justice Reform?” The story focuses on the political machinations involved in House Bill 94, a complex piece of legislation designed to curb Wyoming’s rising prison population (and costs). In the end, HB 94, which once seemed to have broad-based support, was allowed to die without a vote in the desk drawer of the senate president.
The story of House Bill 94’s life and death is a story of the push and pull between different elements of the justice system. It’s a story of prosecuting attorneys and Department of Corrections officials whose goals conflict in stark ways, and of a member of the Board of Parole whose beliefs were so strong he worked against his own colleagues. It’s also the story of how Wyoming’s citizen legislature can struggle to pass complex legislation, particularly when it comes without influential “rabbis” — as legislators sometimes call a bill’s chief proponent — but instead powerful skeptics.
The DOJ’s “Face to Face” program launched Monday will bring governors and other top state officials together with inmates and corrections officers. The program, organized by the Council of State Governments Justice Center is aimed at encouraging criminal justice policy makers to talk directly to those affected by their actions.
Critics say that criminal justice policy often is made without much regard for some of the people who will be affected by it.
Some politicians call for “tough on crime” sentences, for example, with no apparent recognition that those convicted of crimes will end up serving long terms behind bars with little real hope of rehabilitation.
The Council of State Governments Justice Center (CSG) has started a project to remedy that aspect of policymaking.
With the help of a U.S. Justice Department grant, CSG is arranging for governors and other top officials in states, where most criminal justice policy originates, to meet with inmates, correctional staff members and crime victims.
The “Face to Face” project starts Monday with events involving three governors. They will be joined between now and Aug. 23 by five other governors, a lieutenant governor and a state attorney general.
Gov. Nathan Deal (R-GA), who has led an extensive criminal justice reform effort in his state, said in a statement issued by CSG, “I have learned through my own experience that criminal justice policy decisions are best made when they prioritize the needs and challenges of the people they ultimately impact.”
Then-President Barack Obama took part in a similar activity in July 2015, when he visited the El Reno Federal Correctional Institution in Oklahoma, where he spoke to inmates. He apparently was the first chief executive to tour a federal prison.
Another participant in the CSG project, Gov. Dannel Malloy (D-CT), suggested that if more officials spoke directly with inmates, they would not take “a distant and hard line approach with respect to corrections and public safety policy.”
Malloy urged “a more thoughtful approach to criminal justice policy that focuses not only on data and numbers but also the people behind those numbers.”
The project is issuing a list of “potential action items” for officials to pursue after they meet with inmates and corrections officers. They include things like eliminating occupational licensing restrictions for those with criminal records and addressing the well being of corrections system employees.
The Association of State Correctional Administrators, the organization of state prison directors, is taking part in the project. Its director, Kevin Kempf, said, “The job of a corrections professional is immensely challenging, and often leads to post-traumatic stress disorder.”
Other organizations taking part include the National Reentry Resource Center, JustLeadershipUSA, and the National Center for Victims of Crime.
JustLeadershipUSA was founded by Glenn E. Martin, who served six years in a New York prison. He said, “Incarcerated people and those returning from prison or jail face statutory and practical obstacles that are often misunderstood. There’s no better way to inform our leaders of these issues than connecting face to face.”
The events scheduled so far by the project are these:
Gov. Dannel Malloy (D-CT) meets with advocates for victims of crime and ex-inmates.
Gov. Roy Cooper (D-NC) meets with former prisoners now in a “transitional house.”
Gov. Eric Greitens (R-MO) works with corrections officers in a prison.
Attorney General Mike DeWine (R-OH) visits a mental health facility in a maximum security prison.
Attorney General DeWine visits women in a pre-release program, and volunteers.
Gov. Gary Herbert (R-UT) meets with inmates in an employment-focused reentry program.
Gov. Steve Bullock (D-MT) meets with incarcerated women and prison staff.
Gov. John Hickenlooper (D-CO) meets with incarcerated women.
Lt. Gov. Rebecca Kleefisch (R-WI) meets with inmates.
Gov. Brian Sandoval (R-NV) has lunch with former inmates and their families.
Gov. Nathan Deal (R-GA) speaks about his interactions with parolees at the premiere of a film on the challenges of serving on community supervision.
In a swipe at the agency she recently left, former Assistant Attorney General Karol Mason, the new president of John Jay College of Criminal Justice, says she plans to expand the school’s role so that it leads the national conversation on innovations in the courts, corrections and policing to fill the “void” created by the current Department of Justice leadership.
Karol Mason, the new president of John Jay College of Criminal Justice, envisions expanding the school’s role so that it leads the national conversation on innovations in the courts, corrections and policing now that, she says, the U.S. Department of Justice has essentially bowed out, reports The Chief Leader in New York City.
Charging that U.S. Attorney General Jeff Sessions is moving the clock back on justice issues by decades—“I’d say to the fifties”—John Jay is well-positioned to step up, said Karol Mason, who served as an Assistant Attorney General under President Obama.
“We no longer have the federal leadership we’ve had on these issues and I’d like for John Jay to fill that void,” she said. “We don’t need the federal government to lead us and guide us to do these reforms. We can do it ourselves.”
She cited the importance of research on criminal justice, which she oversaw at DOJ and for which John Jay is well-known, to determine what works, so that money and lives can be saved.
“You assess things to find out if they’re a good investment,” she said. As an example, she said Sessions’s order to seek maximum prison terms for drug violators flies in the face of studies that show it’s addiction treatment, not incarceration, that breaks the cycle of criminality.
She also mentioned Scared Straight, a program popular in the 1980s in which troubled young people were brought to prisons and chastised by drug offenders. “They finally assessed it and realized that at best it does no good but that it also does harm,” she said.
At DOJ, Mason oversaw six agencies supervising such areas as juvenile justice, state and local grants, sex-offender reporting, crime prevention, statistics, and assistance to crime victims.
President Trump’s son-in-law and senior adviser has been meeting with key Republican lawmakers to discuss criminal justice reforms, including to mandatory minimum sentencing, that conflict with Attorney General Jeff Sessions ’ tough-on-crime agenda.
President Trump’s son-in-law and senior adviser, Jared Kushner, and some Republican lawmakers are discussing potential changes to the criminal justice system, including to mandatory minimum sentencing, that could conflict with Attorney General Jeff Sessions ’ tough-on-crime agenda, reports the Wall Street Journal. Kushner met this month with House Judiciary Chairman Bob Goodlatte (R., Va.), continuing a dialogue with lawmakers that began in March with Senate Judiciary Chairman Chuck Grassley (R., Iowa) and Sens. Dick Durbin (D., Ill.) and Mike Lee (R., Utah). Kushner also has huddled with leaders of organizations involved in criminal justice. Kushner’s discussions have included a range of issues, including curbing long mandatory-minimum sentences for nonviolent drug offenders.
“He’s quietly listening to all sides, including outside groups, to understand what’s possible and to ultimately be able to make a recommendation to the president,” said a White House official familiar with the meetings. “It’s a personal issue to him given his father spent time in prison. He got to know the families and got to see what’s wrong with the federal prison system.” Kushner’s father, Charles Kushner, a real-estate executive, was sentenced in 2005 to two years in prison after pleading guilty to tax evasion.
In a farewell interview before stepping down after 13 years as president of the John Jay College of Criminal Justice, Jeremy Travis predicts the fear-mongering rhetoric about crime from the current administration won’t slow down reforms at the state and local levels. “The American people are smarter than that,” he says.
Local and state politicians can overcome the tough-on-crime rhetoric coming from Washington if they take advantage of the still-viable left-right consensus on justice system reforms, as well as the groundswell of public support for those reforms, says Jeremy Travis, the departing president of the John Jay College of Justice in New York.
Travis, one of the country’s most forceful advocates for reducing prison populations, acknowledged that fear-mongering has ratcheted up in the aftermath of the election, buttressed by the early efforts of President Donald Trump’s administration to reverse some of his predecessor’s moves to reduce prison overcrowding and promote policing reform.
But, he said, “I think the American people are smarter than that.”
Entrance to main campus, John Jay College
Travis, who has served as head of the National Institute of Justice and as a senior official in New York City’s government, steps down next month after 13 years at the helm of the country’s preeminent academic institution for criminal justice.
He said those who worry that justice reform will go backwards under Washington’s current leadership are losing sight of the momentum for change already underway in states and cities across the nation.
“A number of states continue to be every bit as serious as they were before the election about reducing levels of incarceration,” he said, noting that a handful have already seen incarceration numbers drop by 20 percent in the last decade.
And despite spikes of violent crime in some cities, such as Chicago, many others are experiencing a continued decline.
“New York is on track for another record year (of crime reduction),” Travis said.
Fears that bipartisan support for reform is weakening are also misplaced, added Travis.
“After the election, a number of us received calls from colleagues on the conservative side of the spectrum who said we’re still on, we’re still committed to reform,” he said, calling the sustained level of support from both sides “unprecedented.”
“The left-right consensus still holds,” he maintained.
Travis’ tenure as the fourth president of John Jay was marked by the college’s emergence as a major influence on policy changes both federally and locally.
Over 14,000 undergraduate and graduate students attend John Jay
Under his leadership, John Jay faculty led a major study on the New York Police Department’s stop-and-frisk strategy that influenced a court ruling curtailing the practice, and began a pioneering effort to reduce gang violence in cities across the country under the National Network for Safe Communities.
Travis also chaired a landmark study by the National Academy of Sciences on mass incarceration.
More recently, Travis, 69, was give the “Disruptor/Innovation” award by the city’s Tribeca Film Festival—an honor that he said recognized the college’s emerging role as an advocate for innovative, evidence-based justice reform.
Travis said the success of John Jay, one of the senior colleges of the financially strained City University of New York (CUNY), with over 14,000 students, proved why publicly financed higher education was important to the future of New York and America.
“When we talk about issues like income inequality, upward mobility, the integration of immigrants, the City University of New York is at the center,” he said. “My hope is that these successes will point the way towards a different financing model for public higher education.
“The future of our city depends on the success of CUNY.”
Incoming John Jay President Karol Mason
Travis will resume his research and activism on criminal justice issues, with appointments at the CUNY Graduate Center and Harvard, but he said the college will be in good hands under his designated successor, Karol Mason, whom he termed a “friend.”
Mason, former head of the Office of Justice Programs at DOJ, is going to bring to John Jay a new level of excellence, relevance and engagement,” Travis said.
The complete televised interview with President Travis by Crime Report editor Stephen Handelman can be seen here. The Crime Report is published by the college’s Center on Media, Crime and Justice. Readers’ comments are welcome.
Preventing wrongful convictions and misconduct means fixing mistakes and flaws before they happen. That’s only possible if justice agencies (and the media) stop focusing exclusively on whom to blame for an error, and look at the circumstances that make errors possible.
In a famous experiment, subjects were instructed not to think of a white bear for five minutes but to ring a bell if they did happen to think of a white bear. The subjects rang their bells on an average once every minute.
To see an example of this phenomenon in action consider the New York Times’ sustained coverage of wrongful conviction scandals in Brooklyn.
The star of this long-running series is retired New York Police Department detective Louis Scarcella. Fifty of Scarcella’s old cases are under review; at least ten have been overturned.
In the Times, Scarcella has the status of a white bear.
Wherever a Brooklyn exoneration story starts, it will bend back toward Scarcella before it ends.
There’s nothing unnatural about this. Readers and editors love a monster. So, a Scarcella story will get some space; another might not.
Still, this augments a feature of American criminal justice commentary that seems very strange to people who take the word “safety” in “public safety” seriously: Our enduring conviction that safety can be pursued by asking “Who?” after a disaster, and skipping the “Why?” and the “How?”
The gravitational pull towards “Who” exerted by white bears like Scarcella is on display in the Times’ skeptical article describing the response of Eric Gonzales, the Acting Brooklyn District Attorney, to the allegations against the detective.
The Brooklyn prosecutors, according to the Times, “made a curious acknowledgment.” According to the article, “ even though they had agreed in recent years to dismiss seven murder convictions that Mr. Scarcella helped obtain, he had done nothing wrong.”
The Gonzales version of this conclusion quoted in the article strives to add a nuance: “We just never found any allegations of specific misconduct — there’s not been a smoking gun.”
That didn’t satisfy Times reporter Alan Feuer. As Feuer wrote, “By stating on the record that it has no evidence that Mr. Scarcella committed any crimes, the district attorney’s office has relieved itself of a handful of unpleasant consequences.”
Maybe. But the Acting District Attorney, by clearing Scarcella, has intensified the need to find out what actually happened in the Scarcella cases.
If your system generates ten wrongful convictions (and leaves ten actual perps running free) when everyone is acting properly, then examining the weaknesses of your system is an emergency.
Your system constitutes a tragedy waiting to happen.
Interested in preventing future wrongful convictions? Then you have to move past the Times’ approach (“It’s Scarcella, hang him”) and the Acting District Attorney’s (“Scarcella cleared, nothing to see, move along”) and account for the many other factors that, safety experts would warn us, contribute to criminal justice errors and, if adjusted, could contribute to preventing them.
A wrongful conviction is an “organizational accident.” Many small failures, no one of them independently sufficient to cause the event, combine and cascade, and only then produce a tragedy.
Even if you stick with the “Who” questions, you have to recognize that—as none other than Louis Scarcella himself once pointed out—he didn’t do it alone.
Somebody hired, promoted and assigned Scarcella. Someone was supposed to supervise him. The crime scene and forensics people were supposed to investigate the cases too.
Someone designed, and someone was supposed to maintain, an elaborate scaffolding of rules and procedures organized to deal with the reality that now and then a “Louis” may show up. The prosecutors, the defenders, the judges, the jurors and the appellate courts are all supposed to intercept his mistakes. Someone organized the responsibilities and training and set the budgets for this legion.
The answer to “Who is responsible?” is “Everyone involved, to one degree or another.” We failed together.
How? To answer that riddle you have to ask more questions. The answer “These are bad people,” just doesn’t suffice.
Even a Scarcella’s decisions—the incompetent or immoral ones included—were “locally rational.” He made his choices; he had his reasons. Something in his environment provided incentives; something erased disincentives.
Ethical violations break moral rules, but whether people choose to break or follow the rules has a behavioral dimension; it isn’t purely a question of upbringing or intrinsic character. Fixable features of the everyday work culture that surrounds people can undermine or encourage compliance.
The seductive features we leave lying around can induce the next detective who comes along to zig when he should zag.
The same is true for all of the other fallible players: the other cops, the Assistant District Attorneys, the defenders, and the judges implicated in the exoneration nightmares.
Safety expert James Reason once argued that although we can’t change the human condition, we could change the conditions under which humans work.
But we can only do that if we resist the temptation to move along without accepting the risks of turning over some rocks to analyze what those working conditions are.
It isn’t hard to see why the Brooklyn District Attorney’s office hesitates before undertaking the sort of non-blaming, all-stakeholders review of the circumstances and culture that surrounded Scarcella and that shaped his conduct which aviation, the military, and medicine would mobilize (and which the National Institute of Justice is exploring in criminal justice with its Sentinel Events Initiative).
To the Brooklyn prosecutors, any demand for that sort of comprehensive review inevitably looks like a vindication of the maxim that no good deed (e.g., creating an active Conviction Integrity Unit) goes unpunished. The Acting DA is afraid that any search for “Why” and “How” will inevitably turn up more than one “Who” —in fact, lots of “Whos,” and lots of them within the DA’s office.
After all, any review that assesses the choices not only of a Scarcella but of the whole system and includes the prosecutors involved in his cases will expose people who are not swashbuckling Scarcella types, but are the innocent authors of omissions, slips, oversights, dangerous “work-arounds,” and other simple human errors.
Why risk making “white bears” of those staff members for the foreseeable future—vulnerable to the arbitrary (and persistent) attentions of the Times and others?
But as uncomfortable as it is to say it, exonerating the innocent, waving off Scarcella, and then moving on really isn’t enough if prevention of future tragedies is something you care about.
In fact, it doesn’t begin to be enough.
Calling endlessly for the discipline or prosecution of Scarcella isn’t enough either.
It may be that Louis Scarcella is every inch the creep that many contend he is, but we have to be careful about seeing this White Bear as a White Whale. Scarcella didn’t, like Moby Dick, act from “inscrutable malice.”
The white whale is a powerful literary device, but tolerating the illusion that the only thing wrong in Brooklyn criminal justice is that a white whale comes along now and then and requires harpooning isn’t simply incomplete; it is false.
The fact is, the Times’ approach and the Acting District Attorney’s reinforce each other.
We all need to look past the One Big Villain explanation.
Interventions—small changes in the practice of any one of an array of other people—could have changed the catastrophic outcomes in the wrongful convictions cases.
Those people don’t want to convict the innocent and leave the guilty free. They will change their practices if we can help them figure out how. We should enlist them in working to improve the safety consciousness of their everyday frontline work.
They present a much more hopeful path to future safety than the punishment (or not) of Louis Scarcella.
James Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.