How the Justice System Can Learn From ‘Frequent Flyers’

For some Americans, health care and criminal justice are not two separate systems, but components of one big system that too often fails them. Frustrated cops call them “frequent fliers” because they regularly cycle between jail and hospital, so why do we  think we can fix one without the other?  

If a patient commits suicide within 72 hours of discharge, the Joint Commission (the accrediting body for hospitals) requires that a hospital conduct a “sentinel event” review.

That review will include a root cause analysis designed to uncover any mistakes or latent system weaknesses that contributed to the death.  It tries to learn whatever can be learned, and to report on steps aimed at preventing repetition.

But suppose the suicide is a “suicide-by-cop”:  A distraught former patient succeeds in forcing the police to shoot him in order to protect their colleagues or a hostage or a bystander.

Then, the familiar mechanisms of the criminal justice system will automatically activate too.

There will be a homicide investigation and a coroner’s report.

The performances of the officers who pulled their triggers will be examined by prosecutors and department officials.  Did the cops have another choice?   Did they act in self-defense? Was the shooting “within policy”?  Is prosecution called for?  Discipline?

Currently, the National Institute of Justice (NIJ) and the Bureau of Justice Assistance (BJA) are providing support (through a technical assistance grant to the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School) for state and local criminal justice systems that want to go beyond the typical punishment-oriented reviews of the practitioners on the sharp end of the system, and to conduct “sentinel event” reviews of their own derived from the medical model when something goes wrong.  Jurisdictions are being recruited.

This will be a new thing in criminal justice.

These inquiries are focused not only on the choices of the individual cops, or forensic scientists, or lawyers, implicated in a surprising outcome, but rather on the whole constellation of system factors.

Like the hospital reviews, they ask not only “What happened?” but also “Why did it happen?” The goal is safety, and not just the safety of suicidal people, but also of the police who are forced to confront them—officers who, even if they survive their encounters, are traumatized by the experience.

So, in a criminal justice “sentinel event” review of a suicide-by-cop the role of training and supervision could be examined.   Was the cop trained in de-escalation techniques and equipped with non-lethal options?  Did the department have a Crisis Intervention capacity?

Had the 911 dispatcher gathered⸺and then conveyed⸺the useful information?  To the right people?  If not, why not?  How was this fatal situation created?  How can it be avoided?

These are system-oriented  event reviews, not personnel-focused  performance reviews; they look forward,  and they  aim at prevention, not at blame.

Are two reviews (or even three, if your city or state has opted into the NIJ/BJA  Sentinel Event effort) better than one?

An innovative recent study in Camden, N.J., (reported in The Crime Report by two of its leaders) casts doubt on that proposition.

In fact, the Camden findings (in my opinion, anyway) argue that we don’t need multiple parallel studies, but rather unified, collaborative learning reviews that enlist not only medical and criminal justice stakeholders working together, but members of the communities and the sub-groups they serve.

We need these learning reviews not only for the spectacular officer-involved fatalities, but for the “high frequency/low impact” missteps characteristic of daily criminal justice life in what a recent book called “Misdemeanorland.”

See: The Crime Report’s Q&A with Issa Kohler-Hausmann, author of “Misdemeanorland.”

The Camden study, conducted by the Camden Coalition of Healthcare Providers with support from the Laura and Jay Arnold Foundation, broke down the walls of multiple data silos in healthcare and criminal justice in Camden and used the numbers to illuminate the lives of a specific group of individuals entangled with both sets of practitioners.

To pull just one telling statistic from among the study’s many: 67 percent of the people who cycled through Camden’s Emergency Departments over the course of the study also cycled through its criminal justice system.

What I think the members of this group—“super-utilizers” to the public health practitioners, “frequent flyers” to the cops—could tell us is that from their perspective, health care and criminal justice are not two systems.  For frequent fliers, health care and criminal justice constitute one big system that dominates their daily efforts to survive.

It is pointless to think of a jail or an emergency room as “upstream” or “downstream.”  Each is simultaneously upstream and downstream of the other.

People who think about safety in other contexts draw a contrast between a complicated system and a complex system.  A jet airplane is a very complicated machine, but it can still be thought of in linear, sequential terms:  if x component fails, then y will happen.  So, find and fix the component.

But jet airliners in operation “become complex because they are opened up to influences that lie way beyond engineering specifications and reliability predictions.”   This is true of hospitals, police departments, prosecutors’ offices, courts, and correctional institutions too.

It looks even more true once you realize that these complex entities are themselves only elements of a more complex encompassing systems environment.

Decisions made in one part of this swirl are seldom automatic “causes” of effects in in other parts; usually they are “influences” that affect the probabilities, not switches that turn things on or off.

Look at the problem of how to launch “Abe,” one of the patient/defendants described by the Camden studies leaders, into a safe, healthy, law-abiding life (that drains fewer public resources) and you can see that you are not dealing with a simple mechanical challenge.

Over five years Abe was treated in emergency departments two dozen times, arrested more than fifteen times:  “A seemingly unbreakable cycle of hospital stays and arrests and incarceration, punctuated by periods of housing instability and homelessness, all of which appear to be driven largely by untreated substance abuse and lack of social supports.”

Some framework for collecting and disseminating cross-sector data will be an important step in breaking the cycle.  The authors of the Camden study are certainly right when they say that their work shows that there is “enormous value in fostering collaborative data sharing among agencies.”

But we should probably remember that data-measuring outputs casts only a pretty oblique light on processes. These processes, involving “lived realities of the people in the criminal justice system,” have to include the “lived realities” of the frontline emergency room nurse, patrol officer, sheriff, prosecutor, and judge who are making the decisions that keep Abe on his treadmill.

It would be surprising if these frontline practitioners greeted the Camden study’s findings with astonished shouts of “Eureka!”  The overlap of homelessness, medical issues, and criminal contacts is something they confront all day, every day.

(Innovative efforts such as the San Francisco Wraparound Project violence prevention initiative at Chan Zuckerberg San Francisco General Hospital have recognized the criminal/hospital nexus as a vital point of entry for community safety.)

Data-derived policies, even very good ones, won’t dispense with the people who have to execute them.  The reality is that the work the frontline workers actually do will seldom be identical to the work that policy wonks are able to describe in advance.

There is, as the Camden study notes, a tremendous variety in frequent fliers’ experiences.  That variety requires innovation, improvisation, choices between conflicting rules, and sometimes even rule-breaking—in short, workmanship—from practitioners.

With all of these actors involved, deciding how to rescue “Abe” is a complex socio-technical riddle, not a straightforward mechanical repair like mending a clockwork.

At 4:30 on some Friday afternoon, with the docket list still bulging, it made sense to each member of the “courtroom workgroup” of prosecutor, defender, and judge to offer Abe a plea to a greatly reduced charge and a sentence of “time served.”

It made sense to Abe to accept the offer and walk out the door.

That this was a mistake becomes clear only later (and in a different place, to different people) when it turns out that the record of conviction meant Abe is booted out of the family home in public housing that provides social support and allowed for medical continuity, or when it disqualifies him for a job or a program.

One of the things we can learn from looking at the general safety literature is that all of the decisions that we now deplore in hindsight as choices that kept Abe cycling were “locally rational” when they were made.

They may not have been heroic, prescient, or admirable, but they made sense to frontline people who were trying to get through their days.  Going “down and in” to focus tightly on one practitioner’s decision won’t be enough; we also have to go “up and out” to see why that decision was made. Leave the same inducements in place and the next practitioner may do the same thing.

When Diane Vaughan looked at the disastrous space shuttle Challenger launch decision she rejected the conventional view of amoral NASA administrators overriding safety concerns to meet the budgetary and political pressures driving the launch schedule.

Vaughan found that the decision was “a mistake embedded in the banality of organizational life.”  It had roots in the “normalization of deviance,” the accumulated drift, by small workarounds, informal work rules, and locally rational adaptations into accepting dangerous risks.

It was supported by a kind of structural secrecy:  that is, by “the way that patterns of information, organizational structure, processes, and transactions, and the structure of regulatory relations systematically undermines the attempt to know.”

Some part of this pattern as it applies to a frequent flyer is made up of formal confidentiality regulations:  the nurse is bound by HIPAA rules, the public defender by attorney-client privilege.  But more derives from mutual unfamiliarity: from a lack of insight into what counterparts in medicine (or public safety) are trying to do, why they are trying to do it, and how they are constrained by their environments.

Look at an avoidable suicide-by-cop or a re-entry failure or medical crisis dooming a frequent flyer like Abe to another downward loop on his spiral and you’re likely to see something of the kind.

Collecting and marshaling the data is crucial, but something like Vaughan’s ethnographic approach—complementing the data with the narratives of individual events and the “thick data” those narratives can provide—is crucial too, if we want to renovate a system that is currently keeping secrets from itself.

There is no reason to choose between, say, the Arnold Foundation’s data analysis and Jennifer Gonnerman’s rich narratives of Kalief Browder’s story.  They inform each other.

James Doyle

James Doyle

But to do this we need everyone’s perspective and on a constantly shifting variety of events.  Narratives confined in silos are no better than data confined in silos.

If everyone is doing “sentinel event” reviews anyway, why not do some together?

Editor’s Note: For another perspective on the Learning Review Process, see Ivan Pupulidy in The Crime Report, “Making Sense of Justice Tragedies.”

James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.

from https://thecrimereport.org

Has the Justice System Abandoned the Presumption of Innocence?

Relatively few of the 11 million Americans arrested every year are convicted, but the way people inside and outside the justice system often treat arrestees challenges the bedrock principle that an individual is presumed innocent until proven guilty—and undermines reform, according to a forthcoming paper in the Alabama Law Review.

The notion that an individual is presumed innocent until proven guilty is a guiding principle of the American justice system. But the way people both inside and outside the system treat those who are arrested calls that principle into question—and complicates reform efforts, according to a forthcoming paper in the Alabama Law Review.

The paper’s author, Anna Roberts, a professor at the Seattle University School of Law, calls the phenomenon a “fusion” of arrests with guilt in the perceptions of many of the justice system’s key players, as well as the media, and she argues that it has affected every phase of the justice process.

“The stage that is supposed to lie between arrest and adjudication—that period of diligent investigation, zealous representation, exploration of defenses, and possible dismissal—has too often collapsed in our…understandings of the criminal legal system,” writes Roberts,

On average, there are 11 million arrests in the U.S. every year. Few of these arrests lead to actual convictions, but many individuals experience negative consequences as a result of contact with the justice system, in ways similar to those actually found guilty, according to Roberts.

For example, she writes, the legal repercussions of an arrest can include a permanent record accessible to police and employers, threats to child custody and the initiation of deportation affairs. People who are arrested and stand trial but found not guilty can still be plagued by negative social stigma, and find themselves suspended, fired or turned down for future jobs.

Just as significantly, the “fusion” of arrests with guilt weakens public support for policing and sentencing reforms, added Roberts, noting that when individuals are detained for long periods of time before a trial, those who assume an arrestee is initially guilty may think of this simply as “punishment paid in advance,” and are less likely to care about issues like pretrial diversion.

Similarly, the association made between arrests and guilt also affects how the public views a defendant’s right to legal counsel, the paper said.

When arrestees are viewed as guilty individuals, concern about due process or improvement of defense representation, particularly for indigents, may be seen as just a “waste of time” or an unethical way to get a client off the hook.

Roberts also argues that the “fusion” can lead to misleading data about recidivism.

She contends that the assumption of guilt is baked into the statistics, both in primary and secondary sources. In part, this is because it is easier to measure initial arrests than to collect follow-up data on complex or lengthy court outcomes. In recidivism data collected, “arrests can be—and are—used as a proxy for either initial criminal behavior or subsequent criminal behavior,” Roberts writes.

Roberts cites the United States Sentencing Commission’s report on federal child pornography offenses, in which “known recidivism” is defined to include arrests even where the outcome of the case is unknown.

Instead, she proposes, recidivism should only be measured by known convictions, because the data is then used to shape incarceration reform programs and policies, such as what “rehabilitative or reentry programs should be funded or offered, how probation and supervised release should function” and “whether diversionary and treatment programs are working.”

In the courthouse, judges also frequently use arrests to gauge an individual’s risk of committing further offenses, regardless of whether he or she was found guilty. That translates into disproportionately high bail amounts and more people detained pending trial, she writes.

Prosecutors, meanwhile, act under the public mandate to “do justice.” When arrestees are presumed guilty, “justice might well be seen as identical to the pursuit of convictions…,” leading to inflated charges and stymying efforts to curb prosecutorial misconduct, writes Roberts.

Given widespread and pervasive tendency to view arrests as guilt, “it may be unsurprising how halting reform has been of policing problems,” she adds, “including racially disparate policing and arrests,” and perverse incentives to arrest such as overtime pay or prospects for job advancement.

Accentuating this fusion, many believe that police have the leading role in “bringing the guilty to light,” rather than the fact-finders of judges or juries, the paper says.

In another example, she points to how arrests can become a public performance staged by police and the media─from “perp walks,” the parading of arrestees through public spaces, to 30 seasons of the reality police show “COPS”—which reinforce the presumption of guilt. Roberts also takes the media to task for reporting police accounts of arrests in a manner that appears to prejudge the guilt of an individual.

Roberts offers a few explanations to the fusion of arrest with guilt, including the reliance on plea bargaining, and the use of diversion programs to classify guilty individuals (regardless of actual criminality).

The complete article, entitled “Arrest as Guilt,” can be downloaded here.

This summary was prepared by TCR news intern Laura Binczewski. Readers’ comments are welcome.

from https://thecrimereport.org

Will Trump End Federal Support for Justice Reinvestment?

The Trump administration wants to change the direction of a longstanding partnership with nonprofits aimed at reducing prison populations. Thirty-five states have taken part in the program.

Advocates of the 11-year-old national Justice Reinvestment Initiative (JRI) are worried that the Trump administration plans to scuttle federal involvement in the project.

JRI encourages states to reduce prison populations and reinvest money that is saved in programs that help ex-inmates reenter society successfully.

The advocates’ concern is based on two recent developments.

Early this year, the administration asked Congress to end funding for federal participation in JRI, starting with the fiscal year beginning Oct. 1.

Congress hasn’t completed the spending process for next year, but both the Senate and House Appropriations Committees rebuffed the request and included money for justice reinvestment in their proposed budgets for next year.

The Senate panel would fund the program for $28 million. The House panel provided $30 million, although $5 million of that is for anticrime projects unrelated to the core JRI concept. (See earlier coverage in The Crime Report.)

The second action causing concern is a request for grant applications that the Department of Justice (DOJ) issued on June 28.

In it, DOJ sought proposals for a different concept for JRI, one that would focus on reducing recidivism of state prison inmates.

The DOJ document noted that Congress has said that it intends JRI to fund “activities related to criminal justice reform and recidivism reduction.”

The department then announced a “Justice Accountability Initiative” that it says “has been developed to meet the JRI goals to reduce recidivism and reform the  system by improving the effectiveness of risk assessments and to be more data-driven system-wide.”

The DOJ plan proposes to start pilot projects that would improve risk assessment tools that are now being tested to predict repeat criminality among those on probation.

As of 2016, there were 6.8 million people in the U.S. under the supervision of adult correctional systems, with nearly 4.6 million of them on probation or parole.

DOJ says that today’s probation and parole caseloads typically “include high risk individuals who pose a greater threat to public safety and have more criminogenic needs that may require additional services and increased supervision.”

A U.S. Bureau of Justice Statistics study issued earlier this year said that 83 percent of offenders recidivate within 9 years.

“While the use of risk assessments has become wider spread,” DOJ says, “the effectiveness and objectivity of these tools could be improved, updated, or better utilized.”

DOJ is seeking applicants by July 30 that would ‘”develop a new, or improve an existing, risk assessment tool, moving it to a more scientifically rigorous and objective risk prediction tool (based on a computer-driven algorithm), and develop aligned offender monitoring and supervision plans and policies.”

The Justice Department also wants grantees to do related projects, such as assessing  current supervision strategies for former prisoners “and their impact on crime and recidivism and train staff in supervision strategies.”

Other aspects of the proposal include assessing a suggested “data-sharing system” for localities “that would focus on crime and recidivism among offenders released into their communities” and to “improve justice system partners’ abilities to produce a cross-system analysis that provides a better understanding of the contributions of pretrial, probation, parole, reentry, and other services to crime trends.”

The Justice Department proposal, which calls for spending $20 million next year, did not explicitly say that it would end the long-term partnership with outside entities on JRI.

DOJ officials would not elaborate to The Crime Report, but at least one Trump administration official in the department has said he believes that JRI is not consistent with the administration’s “tough on crime” practices.

In a fact sheet issued this week, Pew Charitable Trusts, the principal nonprofit that has partnered with the Justice Department on JRI, said that since 2007, 35 states have reformed sentencing and corrections policies through the initiative.

Other non-federal entities involved in the project are the Council of State Governments Justice Center and the Crime and Justice Institute, and other organizations. The partnering organizations declined to comment on the DOJ actions.

It is possible that they will ask members of Congress who support the current direction of JRI to object to the Trump administration’s changes.

As described by Pew, the state reforms vary, but they “aim to improve public safety and control taxpayer costs by prioritizing prison space for people convicted of serious offenses and investing some of the savings in alternatives to incarceration that are effective at reducing recidivism.”

Since 2007, state imprisonment totals have dropped by 11 percent while crime rates have continued a long-term decline, Pew said. State justice reinvestment laws are expected to save billions of dollars in imprisonment costs.

The Pew publication includes a chart that lists various reforms enacted by states. The policy changes date from laws passed by Texas in 2007 that include easing terms of probation and improving government interventions in offenders’ mental health problems.

Six states passed JRI-related reforms last year, Pew said, including Arkansas, Georgia, Louisiana, Montana, Rhode Island, and North Dakota.

It was not immediately clear whether Pew would continue the aspects of the JRI project that involve helping states pass legislation on corrections issues if the federal government ends its participation.

Louisiana, which had led the nation in state incarceration rates, recently moved to number two behind Oklahoma as the result of changes enacted as part of the JRI initiative.

This week, Gov. John Bel Edwards announced that the state had saved $12.2 million in the current fiscal year, doubling Pew’s initial projections of $6.1 million.

One aspect of the new DOJ Justice Accountability Initiative that could delay or derail it is that like other Justice Department grant programs, applicants must cooperate with federal officials on immigration issues. In other words, “sanctuary cities” or “sanctuary states” would not qualify.

Lawsuits already are pending challenging such requirements for other grants. It is possible that applicants also will contest that announced limitation on the new initiative.

Ted Gest is president of Criminal Justice Journalists and Washington Bureau Chief of The Crime Report. He welcomes readers’ comments.

from https://thecrimereport.org

Will a Polarized National Climate Derail Justice Reforms?

Three state and municipal politicians told a conference at John Jay College Wednesday that tougher national rhetoric on crime has complicated—but not stopped—the grassroots reform movement across the country.

Can justice reform be achieved in a polarized national political climate?

Three state and municipal politicians said Wednesday that re-framing the issues by looking at how individuals experienced the inequities of the justice system could ensure that the bipartisan movement for reform continues.

John Tilley, secretary of Kentucky’s Justice and Public Safety Committee and a Democrat who has helped spearhead a radical transformation of the state’s sentencing code, said there were signs of cracks in the once-solid bipartisan support for reform in his state.

“It only takes three or four voices in a 138-person legislature in the [state] House and Senate to derail any good effort,” Tilley said at a John Jay College conference on the jail crisis.

But he said that utilizing a “pro-family” framework that stresses the way mass incarceration breaks up families can counter a climate at both local and national levels that seemed to be leaning back towards a “tough on crime” approach.

“Maybe it’s easier to not take any political risks when I’m up for reelection every two to four years,” he said. “Maybe it’s easier to be tough on crime.”

Speaking to the need to inform the public of why reform matters, he quoted the late broadcaster Eric Sevareid: “Never underestimate your listener’s intelligence, or overestimate your listener’s information.”

“Once you go to a civic group and once you explain, they get it. They buy it,” he said. “The business community buys it. The constituents buy it. But you’ve got to explain it.”

John Bauters

John Bauters, mayor of Emoryville, Ca. Photo by John Ramsey/TCR

John Bauters, mayor of Emoryville, Ca., and director of government relations at Californians for Safety and Justice, said paying attention to how ordinary people intersect with the justice system can make a huge difference in winning support.

“Attitudes evolve with time, and narratives are what change and what catch up with people in terms of how they perceive reforms: everything from prison overcrowding to whether a person with a felony conviction should have the right to vote,” Bauters said.

He found that legislators were particularly influenced by the testimony of the formerly incarcerated.

“Oftentimes, you need to have the narrative come from a person who is living the experience of what over-incarceration looks like,” he said.

Citing the example of a veteran who suffered PTSD and whose repeated contact with the justice system as a result of his mental health condition left him unable to find employment or housing, Bauters said, “It’s a prize when somebody who they don’t expect walks into the legislator’s office and talks to them about their experience with mass incarceration.”

Victims provided another perspective he believed was under-represented in the discourse surrounding incarceration, and that, if included, would shift the needle from a retributive to a restorative model.

“When we decentralize the narrative away from what crime victims need, we lose the sense of justice we’re trying to promote through the carceral system and the alternatives to incarceration,” he said.

“Anywhere between two out of three and three out of four people who have been victims nationally want healing, treatment and reconciliation over criminal punishment and incarceration.”

Bauters and Tilley were joined by Georgia State Rep. Chuck Efstration,  a Republican who has been a leading player in reforms instituted by Gov. Nathan Deal.

Chuck Elfstration

Georgia legislator Chuck Elfstration. Photo by John Ramsey/TCR

“Politics can be very contentious many times,” he said. “But luckily, there’s been broad bipartisan understanding and acknowledgement of the importance of these issues.”

Efstration said the efforts by Deal, a two-term governor, to explain the rationale behind justice reform to conservatives in his state had helped ensure that most criminal justice reform legislation passed the Georgia legislature with “unanimous or close to unanimous support.”

He believed the tough rhetoric on crime promoted by President Donald Trump and Attorney General Jeff Sessions would ultimately not derail the reform process.

And Tilley added that some White House initiatives, such as the effort to promote counseling and education to prison inmates before their release, were welcome signs.

Bauter said changing language was another key part of getting constituents and key players on board with reform.

Regarding the common usage of the words “felon” and “offender,” he said, “Imagine if you were only called by a noun that described the single worst thing you ever did in your life. Imagine if you were called cheater or liar everywhere you went.”

“Now imagine what your prospects are if everywhere you go, you’re referred to as a felon.”

He added: “If you identify someone by the worst thing they’ve ever done, and not the most sympathetic thing they’ve ever experienced, you’ve prejudiced the community’s understanding of what’s really going on.”

The panelists stressed the importance of building coalitions, and encouraged reform advocates to be open to unlikely partnerships.

Tilley said that reformers in Kentucky had found an ally in the business community, which spoke up in favor of reducing incarceration when the growth in jail and prison populations began decimating the state’s workforce.

“We cannot fill the jobs we have,” he said. “So they have taken an active role since 2009,” pressing for less punitive policies and providing job training in reentry programs within prisons.

Such investments have proven mutually beneficial, aiding returning citizens in reintegrating into society and providing businesses with much-needed labor.

“There’s tremendous potential and talent behind these walls,” Tilley said.

Efstration spoke of a similar collaboration between education providers and prisons in Georgia.

“We’ve had a great expansion of technical college opportunities in coordination with the Department of Corrections,” he said.

The resulting certifications ensure that “upon a person’s release, there are employment opportunities immediately available. People are certified to practice in that area already, as soon as they get out.”

Elena Schwartz is a TCR News Intern. She welcomes readers’ comments.

from https://thecrimereport.org

Will a Polarized National Climate Derail Justice Reforms?

Three state and municipal politicians told a conference at John Jay College Wednesday that tougher national rhetoric on crime has complicated—but not stopped—the grassroots reform movement across the country.

Can justice reform be achieved in a polarized national political climate?

Three state and municipal politicians said Wednesday that re-framing the issues by looking at how individuals experienced the inequities of the justice system could ensure that the bipartisan movement for reform continues.

John Tilley, secretary of Kentucky’s Justice and Public Safety Committee and a Democrat who has helped spearhead a radical transformation of the state’s sentencing code, said he had begun to see cracks in the once-solid bipartisan support for reform in his state.

“It only takes three or four voices in a 138-person legislature in the [State] House and Senate to derail any good effort,” Tilley said at a John Jay College conference on the jail crisis.

But he said that utilizing a “pro-family” framework that stresses the way mass incarceration separates children and parents can counter a climate that seemed to be defaulting on a “tough on crime” approach.

“Maybe it’s easier to not take any political risks when [you’re] up for reelection every two to four years,” he said. “Maybe it’s easier to be tough on crime.”

This attitude among legislators makes it all the more important for advocates to take control of the  narratives surrounding reforms.

Speaking to the need to inform the public of why reform matters, he quoted the late broadcaster Eric Sevareid: “Never underestimate your listener’s intelligence, or overestimate your listener’s information.”

“Once you go to a civic group and once you explain, they get it,” he said. “The business community buys it. The constituents buy it. But you’ve got to explain it.”

John Bauters

John Bauters, mayor of Emoryville, Ca. Photo by John Ramsey/TCR

John Bauters, mayor of Emoryville, Ca., and director of government relations at Californians for Safety and Justice, said paying attention to how ordinary people intersect with the justice system can make a significant difference in winning support.

“Attitudes evolve with time, and narratives are what change and what catch up with people in terms of how they perceive reforms: everything from prison overcrowding to whether a person with a felony conviction should have the right to vote,” Bauters said.

He found that legislators were particularly influenced by the testimony of the formerly incarcerated.

“Oftentimes, you need to have the narrative come from a person who is living the experience of what over-incarceration looks like,” he said.

Citing the example of a veteran who suffered PTSD and whose repeated contact with the justice system as a result of his mental health condition left him unable to find employment or housing, Bauters said, “It’s a prize when somebody who they don’t expect walks into the legislator’s office and talks to them about their experience with mass incarceration.”

Victims provided another perspective he believed was underrepresented in the discourse surrounding incarceration, and that, if included, would shift the needle from a retributive to a restorative model.

“When we decentralize the narrative away from what crime victims need, we lose the sense of justice we’re trying to promote through the carceral system,” he said.

“Anywhere between two out of three and three out of four people who have been victims nationally want healing, treatment and reconciliation over criminal punishment and incarceration.”

Bauters and Tilley were joined by Georgia State Rep. Chuck Efstration, a Republican who has been a leading player in reforms instituted by Gov. Nathan Deal.

Chuck Elfstration

Georgia legislator Chuck Elfstration. Photo by John Ramsey/TCR

“Politics can be very contentious many times,” he said. “But luckily, there’s been broad bipartisan understanding and acknowledgement of the importance of these issues.”

Efstration said the efforts by Deal, a two-term governor, to explain the rationale behind justice reform to conservatives in his state had helped ensure that most criminal justice reform legislation passed the Georgia legislature with “unanimous or close to unanimous support.”

He believed the tough-on-crime rhetoric promoted by President Donald Trump and Attorney General Jeff Sessions would ultimately not derail the reform process, and that some White House initiatives, such as the effort to promote counseling and education to prison inmates before their release, were welcome signs.

Bauter said changing language was another key part of getting constituents and key players on board with reform.

Regarding the common usage of the words “felon” and “offender,” he said, “Imagine if you were only called by a noun that described the single worst thing you ever did in your life. Imagine if you were called cheater or liar everywhere you went.”

“Now imagine what your prospects are if everywhere you go, you’re referred to as a felon.”

He added: “If you identify someone by the worst thing they’ve ever done, and not the most sympathetic thing they’ve ever experienced, you’ve prejudiced the community’s understanding of what’s really going on.”

The panelists stressed the importance of building coalitions, and encouraged reform advocates to be open to unlikely partnerships.

Tilley said that reformers in Kentucky had found an ally in the business community, which spoke up in favor of reducing incarceration when the growth in jail and prison populations began decimating the state’s workforce.

“We cannot fill the jobs we have,” he said. “So they have taken an active role since 2009,” pressing for less punitive policies and providing job training in reentry programs within prisons.

Such investments have proven mutually beneficial, aiding returning citizens in reintegrating into society and providing businesses with much-needed labor.

“There’s tremendous potential and talent behind these walls,” Tilley said.

Efstration spoke of a similar collaboration between education providers and prisons in Georgia.

“We’ve had a great expansion of technical college opportunities in coordination with the Department of Corrections,” he said.

The resulting certifications ensure that “upon a person’s release, there are employment opportunities immediately available. People are certified to practice in that area already, as soon as they get out.”

Elena Schwartz is a TCR News Intern. She welcomes readers’ comments.

from https://thecrimereport.org

Do Jail Diversion Programs Really Work?

The ACLU has filed suit in Kansas, alleging that the state has failed to give defendants sufficient opportunity to benefit from diversion programs. But a TCR investigation finds many experts who argue that the effectiveness of such programs depends on how well they are executed.

Melissa Braham, 27, had no adult criminal history when she was apprehended by police in Kansas last fall while moving from Colorado to Missouri. After searching her car, officers charged Braham and her boyfriend with misdemeanor marijuana and paraphernalia possession.

Under state law, she was entitled to receive notice that she could apply for a diversion program to avoid criminal charges. Instead, she was jailed for a month, during which time she lost her job and had her children taken from her and placed in foster care.

“My kids came to see me in jail, and it was really hard to see my baby crying,” Braham said in a video produced by the American Civil Liberties Union (ACLU) of Kansas. “They’re still in foster care and I’m still trying to get them back.”

“All of this big heartache really could have been avoided if I had known about diversion.”

Braham is one of thousands of Kansas defendants who could have benefitted from diversion programs had they been given the opportunity. According to figures collected by the ACLU of Kansas, elected prosecutors in the state use diversion in only about five percent of felony cases—about half the rate diversion is used nationally.

The ACLU brought a lawsuit against a county prosecutor in Kansas in June for failing to disclose diversion opportunities to defendants in accordance with state law.

“These programs are essential to establish a rehabilitative rather than punitive criminal justice system,” said Somil Trivedi, a National ACLU attorney who is partnering with the ACLU of Kansas in the lawsuit, in a press release on June 8.

“We’re taking action in Kansas to send a message to prosecutors that it’s their obligation to uphold the law and serve their community, not just rack up as many convictions as they can.”

But how effective is diversion in the first place?

Diversion allows low-level defendants to avoid criminal charges, and thus divert them from the criminal justice system, if they follow a prescribed program set out by a prosecutor. Conditions can include some combination of classes, community service, addiction treatment, mental health counseling, and restitution.

The central promise, should defendants complete diversion successfully: a clean record.

Diversion programs seek to address the root causes of crime. Proponents say they can be a means of relieving overburdened courts and crowded jails, and can save offenders from the adverse consequences of a criminal conviction.

Nearly every state has some form of diversion program, according to the National Conference of State Legislatures, but advocates claim the programs are vastly underutilized and are often inaccessible to low-income defendants.

Prosecutors exert almost total control over diversion: they alone have discretion over whether to grant a diversion, and have exclusive responsibility for determining whether a defendant is complying with the diversion agreement’s terms. The district attorney’s decision is almost always final, and defendants have no way to appeal a rejection.

Rules about who is eligible are different in different jurisdictions. Drunk drivers are eligible for diversion in Oregon, but not in Tennessee. In Saline County, Kansas, diversion is not offered for drug offense; three counties south, it is.

Does Diversion Work?

But the availability of diversion does not always successfully prevent defendants from becoming ensnared in the justice system.

Even in cases where diversion is offered, the fines and fees that come with it prove prohibitive for many defendants.

In 2016, the New York Times analyzed 225 adult diversion programs run by prosecutors in 37 states. Two-thirds of lawyers who answered a Times questionnaire about diversion reported that fees were a barrier for their clients.

The exact cost of diversion varies widely. In some places, prosecutors charge nonrefundable application fees that can go up to $250. Additional charges—for counseling, classes, drug tests, monthly supervision, charitable contributions, court costs—mount quickly. The ACLU estimates that a defendant in diversion could pay up to $5,283 for a marijuana possession charge.

“To tell somebody that if you can pay for this, you can get your charges dismissed, but if you are poor you are going to go through the system? That’s completely unfair,” Mark Kammer, who runs diversion programs for the Cook County State’s Attorney in Chicago, told the Times.

Sometimes even after a defendant successfully completes diversion, the promise of a clean record can prove false.

Prosecutors can opt to leave a case open until diversion has been completed, and the resulting pending charge can then stymie defendants’ efforts to find work or housing. Once the case has been closed, expungement is often not automatic, meaning a dismissed case can still show up in a background check.

Diversion vs Punishment

Some district attorneys require defendants to enter a guilty plea that can later be used to prosecute them, undermining the benefits of diversion. And when requirements are strict—hundreds of hours of community service, years of probation—diversion can look very similar to punishment.

A widespread lack of data about fees, success rates, recidivism, and who is accepted or rejected from diversion programs, precludes accountability and improvement almost nationwide.

When diversion is done well, however, its results can be significant. Cook County’s diversion program (in Illinois), which is widely recognized as a model, is an example: a year after finishing felony diversion, 97 percent of graduates have no new felony arrests, and 86 percent have no new arrests of any kind. The program’s drug school alone saves the county an estimated $1.5 million annually.

In the Cook County program, which handles about 5,000 defendants a year, participants are not obliged to plead guilty, and they pay no fee for participation. If they do not successfully complete their program, they are either returned to traditional prosecution with no penalty or are switched to a more comprehensive program.

The intensity of the program is proportionate to the offense: misdemeanor defendants might be required to attend only two counseling sessions, while those charged with high-level felonies can be sent to Branch 9, a yearlong program that connects members to services such as classes for a high school equivalency diploma, substance abuse evaluations, and health insurance.

The Miami-Dade diversion program in Florida, another oft-cited example, focuses specifically on redirecting people with mental illness away from the criminal justice system. In the 18 years it has been in operation, the Criminal Mental Health Project (CMHP) has both reduced the county’s jailed population and improved public safety.

County Judge Steven Leifman began the program in 2000 after realizing that while 9.1 percent of the county’s population has a serious mental illness, only about one percent receive services in the public mental health system, leading to preventable crime and arrests.

CMHP includes a pre-booking program and a post-booking program that divert mentally ill people who might otherwise be arrested for minor offenses or who are already jailed to crisis units for treatment.

To be eligible for the program, a defendant must have a primary diagnosis of a serious mental illness such as schizophrenia, bipolar disorder, major depression, or PTSD. They may also have a co-occurring substance abuse disorder. Defendants can be charged with any non-traffic misdemeanor case, as well as third-degree felonies and second-degree felonies in select cases.

All cases must be approved by the state attorney’s office.

“People with serious mental illnesses need access to the treatments and services that will help them to get better, and they don’t get better in jail,” said Cindy Schwartz, the jail diversion program director.

“We believe this a much better alternative for the people we serve, and it’s a much better alternative for our community.”

In 2016, the New England Journal of Medicine reported that CMHP had facilitated 4,000 diversions, and that the annual recidivism rate among participants was about 20 percent—less than a third of the 75-percent recidivism rate among defendants not in the program.

In some places, diversion takes the form of specialty courts, such as drug courts and veterans’ courts. In these cases, judges take the lead. Generally, however, diversion is a prosecutors’ game: it falls to the district attorney to give or withhold.

Many opt for the second option. Diversion is currently utilized in a small minority of felony cases nationwide, about nine percent.

“The incentives within a prosecutor’s office are skewed towards conviction and long sentences—it’s how they justify their existence,” Trivedi said. “So that is the default approach.”

“If somebody has broken the law, then the only approach to rectifying that wrong is to convict someone of a crime and send them to jail. That’s deeply ingrained in the culture.”

But Trivedi believes it’s time for that culture to change.

“The reason that this issue is so important is that it addresses all the issues we want the criminal justice system to address, but in a smarter way,” he told The Crime Report.

“If prosecutors say they want to keep their communities safe, well, getting people with substance abuse problems the proper treatment they need is a much smarter long-term solution to keeping the community safe, because you’ve eliminated the problem that was driving the criminal activity.”

“If we say we want to save taxpayer money…well, diversion programs save money, because having the state take care of you from morning to night is much more expensive than keeping tabs on someone while they’re in an outpatient program.”

“And if we’re reducing recidivism and keeping people from reoffending, we’re also reducing the cost of the overall system,” he said.

“If states and municipalities and district attorneys and police were serious about keeping the community safer long-term, then these would be much more frequently used programs.”

Elena Schwartz is a TCR news intern. She welcomes readers’ comments.

from https://thecrimereport.org

Memo to Senators: Swallow Your Doubts About the First Step Act

The House bill passed last week won’t solve every problem facing our justice system, but it’s a lot better than doing nothing, says a former inmate who hosts the “Decarceration Nation” podcast.

Last week, legislation designed to accelerate reentry for thousands of federal prisoners passed the United States House of Representatives by a whopping 360-59 margin.

Decarceration Nation

Decarceration Nation podcast

Up next for the First Step Act will likely be a much more hostile reception in the Senate.

Here’s why senators should swallow their doubts and pass it.

The First Step Act is not a magical elixir. It won’t solve every problem facing our criminal justice system.  But it will immediately make a difference in the lives of as many as 4,000 inmates the day after it is signed into law.

I support the First Step Act because it allows inmates staying out of trouble and participating in programming to serve out the remainder of their sentences somewhere (anywhere) other than prison. Not only would people go home earlier; they would go home earlier after participating in programming that teaches them coping and job skills, which in turn will help them reenter society as citizens more capable of productive reentry.

I support the First Step Act for one even more powerful reason.

Being kept in boxes outside of a prison is better than being kept in boxes inside of a prison.

When I was in prison, I saw people violently attacked for reaching across the table for salt, for starting a conversation without following the correct protocol, and for being gay.

I saw new inmates violently extorted, assaulted, and “recruited” (the kindest way to put it) into gangs. I saw the weak punished and strength defined solely by the willingness to engage in brutality.

Being in prison is a process of constantly having to watch your back (and your front). When trouble comes, it comes quickly and seems to inevitably sweep bystanders into the vortex.

So, in addition to allowing inmates to more quickly reconnect with children and family members, find gainful employment, and build a productive life at less cost to US taxpayers, the First Step Act will reduce the number of human beings subject to the vagaries of prison violence.

I know from experience and from the evidence that America’s prisons and jails, as currently constructed and even after accounting for the time that inmates are removed from society, do not increase public safety.

Second, since over 95 percent of all people in prison will come home again, early release to community corrections is much more successful at reducing recidivism than prison is and, as Jason Pye of FreedomWorks, put it:

The (First Step Act) is the lowest hanging fruit of criminal justice reform. Efforts in the states have passed with little to no opposition because there is universal agreement that reducing recidivism, or offenders’ likelihood of reoffending, is the key to promoting public safety.

We are a better America when we embrace our empathetic tendencies.

We are a better America when we see prison sentences as a last resort, to be used only when we know for a fact it is the best way to generate safe outcomes.

Some people have argued that one of the elements of the bill, the rule that moves people closer to home, can threaten public safety. But copious evidence proves that being incarcerated or housed closer to home results in safer outcomes.

Some also worry that the Act will further reinforce Attorney General Jeff Sessions’ harsh approach to crime and punishment. But it’s unclear how legislation that uses unconditional language about mandated reform somehow would make the lives of prisoners worse or his power greater.

Sessions will not remain Attorney General forever, and with criminal justice reform gathering supporters on both sides of the aisle, the likelihood can only grow that in the future we will have a true reformer in the position.

I suspect the real fear is that Jeff Sessions will use some of the provisions of the Act in ways that are racially disparate, while at the same time sentencing continues to over-punish people of color. This is a weighty concern, and we should fight every day to address racial disparities in sentencing and remain incredibly vigilant.

But this is not a new concern, nor is it something the First Step can make worse.

Some also object to the use of risk assessment tools to inform sentencing decisions, arguing they can be used in a biased way.

Yes. Risk assessment tools are biased (they are constructed by human beings).

But as the Center for Court Innovation has shown, they can be tested and are usually made subject to review and to accountability measures.

Prisoners of the Federal Bureau of Prisons are judged entirely on records made up only by correctional officers and unit counselors which are inherently more subjective, less testable over time, and based on less outcomes-based data, than risk-assessment tools.

What About Sentencing Reform?

Much of the opposition to the First Step Act has focused on the notion that prison reform without sentencing reform would be hollow.

While I fully support sentencing reform, I believe reducing numbers on the back-end of incarceration still results in a total reduction in Mass Incarceration (simple math).

In addition, the currently available vehicle for sentencing reform, Senator Chuck Grassley’s Sentencing Reform And Corrections Act (SRCA), is a less-than-perfect vehicle decreasing some mandatory minimums while increasing or creating others.

We can and must still work together to make sentencing reform a reality as soon as possible.

 I hate legislative carve-outs (exceptions built into legislation excluding particular “kinds” of prisoners) but when lives are on the line, we can’t make perfect the enemy of the good.

If the people who are left behind by criminal justice reform will be in no better or worse shape than they were before a particular piece of legislation is passed, we should still help as many people get home as we possibly can.

I celebrated when President Obama commuted roughly 1,324 sentences (despite the many left behind), and I will celebrate the roughly 4,000 people who will be able to return to community supervision as a result of this bill passing.

Remember, this bill is called the First Step Act, not the “Only Step Act.”

joshua hoe

Joshua B. Hoe

It is important that we fight for the return of every single person as soon as they are ready to come home. We need to demand that a second and, if necessary, a third step follows this first step.

But what we absolutely should not do is hold thousands of prisoners who could come home tomorrow hostage while we argue about the details.

See also: Last-Ditch Senate Talks Ahead of Sentencing Reform

Joshua B. Hoe is the host and creator of the Decarceration Nation podcast, an author, formerly incarcerated, and a criminal justice reform advocate in Michigan. The most recent episode of his podcast is a deep dive into the First Step Act. Readers’ comments are welcome.

from https://thecrimereport.org

New Crime Commission Could Get Nod This Year, says Senator

Michigan Sen, Gary Peters, a key sponsor of a bill to create a national commission studying the criminal justice system similar to the landmark LBJ-era effort, says he is “cautiously optimistic.” He told a Washington briefing that the more incidents occur involving failures by criminal justice officials, “the more people lose trust in the system.”

A Michigan senator who is advocating for a congressional commission to conduct a national study of the criminal justice system says he is “cautiously optimistic” that Congress will approve the measure this year.

Sen. Gary Peters (D-MI) made the comment Tuesday at a briefing on Capitol Hill sponsored by the Center for Evidence-Based Crime Policy at George Mason University on behalf of the American Society of Criminology, which has just published a volume focused on what a new commission could accomplish.

Peters, who is leading the fight for the bill with Senate Majority Whip John Cornyn (R-TX) and Sen. Lindsey Graham (R-SC), said he is concerned that the more incidents that occur involving failures by criminal justice officials, “the more people lose trust in the system.”

Gary Peters

Michigan Sen. Gary Peters via Wikipedia

He added: “Democracy can’t function without trust.”

Peters said that 39 senators have endorsed the bill, which would create a 14-member commission to do the first major system-wide study of its kind since a panel appointed by President Lyndon B. Johnson delivered a landmark report 50 years ago titled “The Challenge of Crime in a Free Society.

A similar attempt by then-Sen. James Webb (D-VA) to create a national criminal justice commission failed by three votes in 2011 to achieve a filibuster-proof 60-vote majority.

Prospects for the commission this year are uncertain in a Congress that is passing little substantive legislation on criminal justice or other subjects.

In recent years, the commission has been included in broader legislation on federal sentencing reform, but that measure is opposed by the Trump administration, where Attorney General Jeff Sessions, as an Alabama senator, voted against proposals to reduce many mandatory minimum prison sentences.

The House Judiciary Committee may take up a bill on Wednesday that deals with prison reform measures that are favored by the White House to improve prisoner reentry programs.

Committee members are nearing agreement on the bill, which could reach the floor in early May, Politico reports.

The legislation, which would establish training programs aimed at reducing recidivism rates, is the product of months of negotiation between Reps. Doug Collins (R-GA), Hakeem Jeffries (D-NY), President Trump’s son-in-law and adviser Jared Kushner and Attorney General Sessions.

In the Senate, Cornyn has said that if the prison bill can be approved by the House, he will try to get a version approved by the Senate that includes establishing a crime commission.

Obstacles remain, however. Senate Judiciary Committee Chairman Charles Grassley (R-IA) still favors a broad sentencing reform bill, as do many Democrats. Some Democrats would prefer that no criminal justice bill is approved this year, in the hope that they can regain control of one or both houses of Congress in the mid-term elections and pass a stronger bill next year.

At the Tuesday briefing, criminologists spoke to congressional staff members and others in a review of what the LBJ-era crime commission recommended in major fields, what research has established in the last half-century, and what a new commission might advocate.

Speakers included Alfred Blumstein of Carnegie Mellon University on science and technology; Wesley Skogan of Northwestern University on policing; Doris Mackenzie of Penn State University on corrections; Cassia Spohn of the University of Arizona on prosecution; Jodi Lane of the University of Florida on juvenile justice; Robert Crutchfield of the University of Washington on race and criminal justice; Bryce Pardo of the University of Maryland on narcotics; Lawrence Sherman of the University of Maryland and the University of Cambridge and Joanne Belknap of the University of Colorado on domestic violence; and Paul Wormeli of the IJIS Institute on crime statistics.

The project was funded by the Harry Frank Guggenheim Foundation and was headed by Ted Gest of Criminal Justice Journalists and The Crime Report and Cynthia Lum of the George Mason Center for Evidence-Based Crime Policy.

Ted Gest is Washington bureau chief of The Crime Report

from https://thecrimereport.org

What’s Inside the Prosecutorial ‘Black Box’?

Prosecutors are arguably the least understood players in the criminal justice system, and any reform effort must take them into account. But what do they think about their jobs? Here’s what one researcher found.

“If you are going to reduce the prison population, prosecutors are going to be the ones who have to lead the way.”

Since Fordham Law Professor John Pfaff wrote those words, in a paper published in 2011, analysts have been focusing on his argument that the nation’s historic and unprecedented prison growth since 1994 was not primarily driven, as many believed, by legislation—but rather by increased filing of felony charges by prosecutors.

He concluded that, in order to be successful, justice reform efforts would have to focus on prosecutors.

But until recently, the public had little understanding of what Pfaff also called the “the least transparent part of the criminal justice system,” particularly the enormous power wielded by prosecutors to determine who is charged, who may plead out, and who goes to prison.

Nor did many recognize the considerable influence district attorneys exerted in state public policy debates.

In an effort to pierce what Pfaff has termed the “prosecutorial black box,” the Charles Hamilton Houston Institute at Harvard Law School conducted a series of interviews with former and current prosecutors.

My colleagues and I were particularly interested in hearing about the experiences of individuals who had tried to enact reforms from the inside. To encourage optimal honesty, we assured confidentiality to everyone we spoke with.

The result was a series of revealing interviews that shed light on why many prosecutors become disillusioned with their jobs, and on the discomfort felt by African-American prosecutors, in particular, about being put in a position of, as one said, “sending other black men to prison.”

Public awareness of the prosecutors’ role is rapidly changing in districts across the country—red, blue and purple—as education campaigns waged by justice reform advocates are galvanizing voters to elect openly reform-minded district attorneys.

In Houston, Mississippi, Denver, San Francisco, Chicago, Brooklyn, and most recently, in Philadelphia, these leaders are promising to make the system fairer, more equitable, and more transparent. Many have pledged to reduce the prison population, change bail practices, divert non-violent offenders, end marijuana prosecutions, and reduce racial disparities in the system.

But there’s still a long way to go.

recent survey conducted by the American Civil Liberties Union in Massachusetts found that almost 40 percent of respondents did not even know that district attorneys were elected. As a result, most DAs routinely cruised to re-election, often without an opponent.

With a growing cohort of reformers now ensconced in office, advocates are closely monitoring their actions. In particular, they are questioning whether reform can be initiated and sustained from within the very offices that have been most responsible for “mass incarceration.”

And, if reforms are possible, where are the most promising levers?

Our survey explored these and other questions. Below is a short summary of what we found.

The Career Disconnect

When discussing with prosecutors what had initially attracted them to the job, most spoke of wanting to make a difference in the community, of wanting to be “players,” of finding solutions to social problems, “solving puzzles,” helping victims of crime, and to gain trial skills.

Yet, once in office, they all told us, they were evaluated almost exclusively on a very narrow set of metrics—their trial skills, ability to quickly go to trial and to win convictions:

“You were measured by the speed with which you are moving cases and you better get a conviction,” commented one interviewee. “You charged out everything that you could possibly charge out. A good plea meant a lot of time.”

Another mentioned that a memo would be sent around the office every time a prosecutor won a case, with “a lot of high fives based on how many years someone is sent away.”

Someone else explained that, when a defendant received a 15-year sentence or higher, the prosecutor’s photograph would be hung on a wall, next to a photograph of the defendant and of the referring FBI agent.

Race Matters

We noted a distinction, which needs to be further explored, between how white and black prosecutors initially approached their jobs. Many of the black prosecutors with whom we spoke expressed ambivalence about entering a field which required them to put so many other African Americans in prison.

One told us, “My struggle was being a black man in a position where I would be sending other black men to prison.”

Said another: “During the period I was there, there was no concern about mass incarceration, over-criminalization or reducing prison population. Those issues were never raised.”

While several white prosecutors told us they eventually became troubled by the racial disparities in prosecutions, it was not an initial concern, whereas the black prosecutors raised it immediately.

The Tipping Point

One surprising insight that emerged from several interviews was the deep emotional toll that prosecutorial work exacted over time. Several interviewees mentioned feeling empty, sad, and isolated, particularly because the office culture did not encourage them to be “soft.”

For a few, a particular case became a tipping point:

One moment—a black man had gone to trial for selling crack. It was the same story over and over…I decided to drive by, and sure enough, there was someone else selling crack at the same house where the defendant, now serving a mandatory minimum prison sentence, had been arrested….Nothing had changed.

 Winning a trial was supposed to be this moment of joy and accomplishment. You stand up and hug and laugh—but I felt crushed. This is one big swamp of tragedy. 

One case “overwhelmed me” and sent me over the edge. One mother had a son who was killed, another who killed. She lost both sons. They were from the same communities. Our approach was not working. 

We asked interviewees how they would change or reform the job. Here are some of the recommendations we heard most frequently.

Improve Recruitment and Training

Several of the individuals we interviewed discussed the need to cast a wider net when recruiting for new positions in the field, and, in particular, to seek out individuals “who are not so black and white” in their thinking about the consequences of breaking the law.

A few also noted the vast cultural, racial, ethnic and demographic differences between many prosecutors and the communities where they work.

“You cannot exact retribution on a community without any knowledge or understanding of that community,” commented one.

They recommended that all incoming prosecutors undergo training that included visiting prisons, speaking with incarcerated individuals, and understanding the full impact of incarceration and criminal control on an individual life’s and on the life of his or her family.

Broaden the Metric

Almost every interviewee noted that the metrics for measuring the performance of prosecutors were far too narrow.

Trial skills were valued extremely highly, along with an ability to move to trial quickly (“we don’t want to be the ones to slow the process down”), and, of course, to secure convictions.

But several mentioned that any positive contribution they chose to make, for instance, by working in communities, went largely unnoticed. While they weren’t actively discouraged from taking part in community events, they weren’t rewarded for doing so either.

“Nobody sent an e-mail around the office when I helped someone go to college instead of prison,” said one.

Collect More and Better Data

The lack of data collected by most District Attorney offices, according to several interviewees, hobbled reform efforts. It kept the public, and the staff, from measuring the office’s effectiveness on a variety of indicators beyond conviction rates.

This has led some to seize upon the work of organizations such as Measures for Justice, which gathers data on a host of criminal justice indicators at the county level in three broad areas—public safety, fair process and fiscal responsibility.

Using this data offers one way to hold District Attorney offices accountable on a far broader set of publically-available metrics for performance.

Ease the Emotional Toll

Many prosecutors spoke of feeling isolated, increasingly uncomfortable with a culture that focused exclusively on convictions and harsh prison sentences, yet fearful of appearing “soft.”

One interviewee suggested “term limits” to ensure that individuals did not develop “shells of hardness.”

Another observed that a broader set of metrics, which rewarded prosecutors for positive efforts within the community, might create more balance for line prosecutors, and ease their sense of isolation.

These interviews represent just a first step.

Johanna Wald

Johanna Wald

We need more data—both quantitative and qualitative—to more fully understand how changes to prosecutorial culture and incentives can accelerate the movement to create a more equitable and humane justice system.

Robert F. Kennedy once said that “every community gets the kind of law enforcement it insists on.” It’s therefore ultimately up to every community to insist upon a district attorney’s office that reflects its priorities and values.

Editor’s Note: The results of the survey were first presented at a June, 2017 conference at Harvard. Readers who wish to obtain a copy are invited to contact the author at jomawald@gmail.com.

Johanna Wald is the former director of strategic planning at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. She welcomes comments from readers.

from https://thecrimereport.org

Public Safety Summit Draws Officials From 50 States

Pennsylvania corrections chief John Wetzel launched the two-day Washington meeting with an appeal to legislators, corrections administrators, police chiefs and health officials to work together on evidence-based solutions. Another speaker said the White House would back unspecified reforms.

To many Americans, “criminal justice reform” means addressing two prominent challenges: reining in abusive police officers or cutting prison populations.

This week, the Council of State Governments Justice Center and the Association of State Correctional Administrators brought teams from all 50 states to Washington, D.C., to underline the fact that reform means much more than that.

Wetzel

John E. Wetzel. Photo courtesy Pennsylvania Department of Corrections.

In opening remarks Monday to the two-day “50-State Summit on Public Safety,” Pennsylvania Corrections Secretary John E. Wetzel called on fellow justice officials to abandon the “stovepipe approach” of handling issues in isolated silos of the justice system and seek cooperation with experts in other areas.

Wetzel’s remarks set the tone for the meeting, which was aimed at presenting officials in each state with a detailed analysis of their crime issues, including trends in arrests, recidivism and “behavioral health,” and help them come up with evidence-based solutions.

Summit attendees include all state prison directors, 41 state legislators, 35 state behavioral health directors, 15 police chiefs, and 12 sheriffs.

A major theme that surfaced early in the session is that issues often labelled as “criminal justice” problems, such as mental illness and addiction, can be handled just as well by public health authorities.

“Mental health needs are overwhelming the criminal justice system,” warned Fred Osher of the state government group, who presided over a panel on “Growing Crises.”

“Crime in the U.S. often is described only in terms of national trends, while in reality, the problem differs greatly among states and localities. For example, the violent crime rate nationally is much lower than it was in the 1990s, but 18 states have reported rising violence totals in recent years.”

A panel of three police chiefs, Renee Hall of Dallas, J. Thomas Manger of Montgomery County, Md., and Anthony Campbell of New Haven, Ct., discussed a range of approaches being tried in their areas, including more police involvement with schools, and programs to help chronic criminals get jobs.

Hall said police “are not social workers,” but they still believe in forging partnerships with businesses and outside the justice system to help reduce repeat criminality.

In fact, recidivism is another major topic of discussion at the summit, particularly trying to reduce repeated crime among people on probation, a topic not often discussed at such conferences.

Critics often point to the U.S. prison and jail population that tops 2 million, but it’s often overlooked that more than twice as many are on probation or parole.

Repeat crime among those released from prison is 40 percent or more in many states, depending on how it’s measured. The fact that more than 4.6 million people were on probation or parole as of 2015 means that even the lower repeat-crime rate among those convicts mean many more total “recidivism events” by probationers every year, said the Council of State Governments’ Andy Barbee.

Criminologist Edward Latessa of the University of Cincinnati told the conference that too many probation and parole officers act like “referees” whose main job is to determine whether probationers and parolees have violated rules and should be sent back to custody.

Instead, he argued, they should be trained more as “coaches” to take active steps that would prevent those on their caseloads from reoffending.

Bryan Collier, criminal justice director in Texas, and Kathy Waters, probation director for the Arizona Supreme Court, described how their states have used variations on that approach to reduce the totals of people whose probation and parole has been revoked in recent years. Such offenders have accounted for a large percentage of new prison admittees in many states.

The conference heard about a new “Face to Face” program sponsored by the Council of State Governments Justice Center in which public officials are encouraged to meet directly with convicts to hear about their challenges in getting job training or education behind bars.

Attendees were shown a video of Iowa Gov. Kim Reynolds visiting prisons. The effort is a bipartisan one. Participants so far include Reynolds, a Republican, along with Republican governors of Georgia, Missouri, and Nevada, and Democratic governors in Colorado, Connecticut, Hawaii, Montana, and North Carolina.

One governor who has criminal justice reform high on the agenda is Republican Matt Bevin of Kentucky, a businessman who made a featured appearance at the summit on Monday.

Bevin has backed reforms including easier expungement of some criminal records by former inmates and “banning the box” to bar state officials from asking applicants about their criminal pasts.

He also has started pilot programs in seven adult and juvenile corrections facilities to improve job training for inmates, and is working to remove prohibitions on former convicts’ obtaining state licenses for many occupations.

Bevin took part in a recent White House meeting with Jared Kushner, President Trump’s son-in-law, to discuss potential justice reforms on the federal level.

The governor said he came away “very confident” that the White House will back reform measures, although he didn’t specify which ones.

Bevin said he was not confident that Congress would agree, although he praised several Republicans, including his state’s Sen. Rand Paul, for joining the reform movement.

After the summit, the U.S. Justice Department will offer “technical assistance” to as many as 25 states to pursue reform measures.

The Council of State Governments Justice Center will issue a report in January with its detailed state crime and justice findings.

The summit is being funded by DOJ’s Bureau of Justice Assistance, the John D. and Catherine T. MacArthur Foundation, Pew Charitable Trusts, and the Tow Foundation.

Ted Gest is president of Criminal Justice Journalists and Washington Bureau Chief of The Crime Report. Readers’ comments are welcome.

from https://thecrimereport.org