Post-Midterms Forecast for Justice Reform: Cloudy, But Encouraging

Voters besieged with scary events and frightening rhetoric mostly swung in the opposite direction at the ballot box last week. That’s expanded an encouraging bipartisan reform climate for newly elected, or re-elected, governors, DAs and legislators—if they’re willing to take heed, says a leading justice commentator.

From the 1970s through the turn of the century, criminal justice was one of the most divisive issues in American politics, with the “soft on crime” tag dooming legions of candidates on the campaign trail.

But over the past few election cycles, a wide range of criminal justice reforms has earned public approval, suggesting that the chest-thumping rhetoric of yesterday continues to lose its once-potent appeal.

This month’s midterm elections deepened the trend.

In Florida, where reform has been particularly hard won, voters returned the right to vote to more than a million people convicted of felonies, while Louisiana voters declared that jury verdicts in felony cases now must be unanimous.

These measures erased two of the most egregious vestiges of the pre-civil rights era, and they carry enormous symbolic and practical effects.

Reform-minded prosecutors took over in multiple cities, from Boston to St. Louis. Police accountability was strengthened in Nashville and in Washington State. Though criminal justice wasn’t central to their campaigns, the governors-elect in Wisconsin and Nevada seem much more likely to advance sensible policies than their predecessors.

These gains for safety and justice, and many others, are particularly impressive in light of the political environment. From the time that polls opened for early voting through Election Day, there was a massacre of worshipers at a synagogue in Pittsburgh, a dozen bombs mailed to prominent political figures, and White House warnings about a caravan “invading” the country across its southern border.

Violence (and the fear of it) had to be high on voters’ minds. And it was: 83 percent of voters told exit pollsters that “extremist violence” was a factor in their votes.

When people are afraid, they yearn for protection, which traditionally has meant support for “lock ‘em up” measures.

Yet across the nation, voters besieged with scary events and frightening rhetoric mostly swung in the opposite direction this month. That suggests a real realignment of public opinion toward crime and punishment—one that distinguishes terrorism from street crime, that views people convicted of crimes as humans rather than “others,” and that recognizes the path to safer communities isn’t paved only with bricks and mortar.

While polls over the past several years have validated these attitudes, it’s what happens at the ballot box that really matters.

But there were caveats and mixed signals as well. Some of the progressive prosecutor candidates were defeated, while others didn’t make it through the primaries. The measure with the most direct potential impact on incarcerated populations—a ballot initiative in Ohio to downgrade some drug offenses from felonies to misdemeanors and reinvest the prison savings into treatment and victim services—went down by nearly 30 points.


Mike DeWine, Gov.-Elect of Ohio. Photo via Wikipedia

The Republican candidate for governor in Ohio, state Attorney General Mike DeWine, had been a strong supporter of expanding incarceration alternatives for lower-lever drug violators—and he may still be. But when his Democratic gubernatorial opponent, Richard Cordray, embraced the ballot measure designed to do exactly that, DeWine came out against it, arguing that as written the policy would make Ohio a magnet for dealers.

(Now that he has won, the legislature may take up and pass a similar package of policies in the lame duck session.)

In California, Gavin Newsom’s victory is likely to reinforce California’s efforts at prison reform. On the other hand, although the ballots are still being counted in Florida, once again, the nominal winner of Florida’s gubernatorial contest, Ron DeSantis, ran on a hardline justice platform while his opponent Andrew Gillum championed changes to the bail system and other reform measures.

Clouding the picture: Gillum, the Democrat, cited the conservative groups Right on Crime and the James Madison Institute as the sources of his criminal justice policy advice.

The Georgia governor’s race was another subtle illustration of how tricky this terrain remains. Republican candidate Brian Kemp took aim at illegal immigration and violent gangs but steered clear of criticizing the extensive efforts of outgoing Republican Gov. Nathan Deal, who led six consecutive years of nearly unanimous legislative action on criminal and juvenile justice.

Meanwhile, Democrat Stacey Abrams ran on an aggressive reformist agenda, but the messaging in her television ads and in the sole televised debate was far more forceful, lamenting low pay for local law enforcement officers and promising to crack down on drug peddlers.

One possible – and encouraging – takeaway from the electoral tea leaves is that criminal justice has been largely defanged as a campaign weapon. Healthcare, the economy and immigration ranked as the top tier issues; in the big races, bread-and-butter criminal justice policy flew under the radar, with few candidates for major offices featuring it as a core component of their platforms.

When they do raise the subject, it’s typically to call for more safety and justice rather than pitting the two against each other.

Crime’s dimming presence in campaigns follows a long-term drop in both violent and property offenses, which have been cut in half since their peak in the early 1990s. It also comes after a decade in which more than 30 states adopted sentencing and corrections policies that deemphasize prison in favor of programs that cost less and more effectively reduce recidivism, often with broad bipartisan support.

At the national level, an otherwise paralyzed Congress just managed to pass comprehensive legislation to combat the opioid epidemic, an effort that focused on expanding treatment and avoided the reflexive sentencing enhancements of the past. It also appears poised to approve both sentencing and prison reforms as part of the “First Step Act,” which would be the first major federal criminal justice policy package in years.

That criminal justice reform has become such fertile ground for bipartisanship may help explain why the reform agenda was neither a grand asset nor a grave liability in last week’s elections. American voters seem savvier about the issue and demand more than baseless rhetoric and simplistic slogans.

Adam Gelb

Adam Gelb

They’ve seen that movie, and now they want real results.

The new crop of elected officials across the country, at all levels of government and up and down the political spectrum, would do well to take notice.

Adam Gelb has worked in criminal justice for more than 30 years as a journalist, congressional aide, senior state government official, and nonprofit executive. He is currently developing a national nonpartisan criminal justice membership organization and think tank.


Why Your Vote Today Can Be the Start of Real Justice Reform

Many prosecutors have made the end of mass incarceration and other justice reforms a focus of their election or re-election campaigns, That’s welcome news, says the director of John Jay’s Institute for Innovations in Prosecution–and long overdue. But it should galvanize support for a broader approach to change.

The scourge of mass incarceration is at last getting the attention it deserves from reform-minded district attorneys around the country. Many of  them are running for election or re-election today.

The data bears out the extent to which elected prosecutors have contributed to the unconscionable number of people in American prisons, the tragically disparate racial impact, and underscores the fact that the exercise of prosecutorial discretion could significantly reduce those numbers.

The Vera Institute’s recent report Unlocking the Black Box of Prosecution provides vital information for both communities and prosecutors to help increase transparency in furtherance of this goal.

The United States has the highest per capita prison rate in the world, with more than two million people in American prisons, of whom nearly 60 percent are people of color (while comprising only 30 percent of the population).

As Michelle Alexander and others have persuasively argued, it cannot be overlooked that all of this exists in the haunting shadow of slavery, and the nation’s moral conscience depends on ending mass incarceration.

But in the midst of the public outcry and the heightened scrutiny of local prosecutors, voters and advocates would be well served to consider the public actors outside the criminal justice system who could do the same.

The agencies responsible for mental health, homelessness, substance use disorders, and other social ills have increasingly experienced political and budgetary constraints since the 1970s, which have been highly variable across agencies and jurisdictions. As communities have found themselves facing increased numbers of people without access to services, the clarion call to elected prosecutors has been to find ways to get those people out of sight, out of mind.

And so, over the past 50 years, coincident with the erosion of public welfare services, Americans have increasingly relied on the criminal justice system to solve problems that are not, at their heart, criminal. Problems like mental health, substance use, and poverty sometimes lead to criminal conduct.

But even more regularly, these conditions lead to conduct of which communities disapprove, but which do not, ultimately, constitute matters warranting criminal justice intervention.

Deinstitutionalization of the mentally ill since the 1960s has led to 2.2 million Americans with severe mental health conditions receiving no psychiatric treatment at all.

In the 1970s, 4.5 million units were removed from the nation’s housing stock, over 1 million SRO units were lost, and the nation’s public housing program was essentially abandoned, while increased numbers of single-person households significantly expanded the demand for housing nation-wide.  Some 25 percent of  incarcerated Americans suffer from mental health problems, and 10 percent are homeless at the time they enter jail or prison.

The effect of increased prosecutions has been well-documented. The devastation of the war on drugs, along with the broken windows policies of the 1990s in New York City and elsewhere, increased the probability of indictment and lengthened sentences for violent crimes, and the attendant parole and probation violations.

Bad federal legislation like the 1994 Violent Crime Control and Law Enforcement Act incentivized states to increase their prison population.  And so, we have quickly and devastatingly become the most incarcerating country in the history of the world.

Acknowledging this reality, progressive modern prosecutors over the past decade  have responded to requests from communities to become purveyors of alternatives for the homeless, the mentally unwell, or the poor.

And so, as elected officials come under increased scrutiny, Americans have increasingly seen their local DAs developing social service programming for people who come into contact with law enforcement.  Prosecutors across the country have created supervised release, cognitive behavioral therapy, and substance treatment options, to name just a few.

Thoughtful and well-meaning prosecutors, often with little social work, public health, or psychological expertise — responding to their communities as they are charged to do — find themselves making decisions in cases that at other times in American history would have been addressed through mental health facilities, homeless shelters, or other civil service providers.

Why is a prosecutor better situated than any number of other, lighter-touch agencies, to identify programming for a person who repeatedly drives with a suspended drivers’ license to get to work, or who breaks into an abandoned building to seek shelter?

In addition to asking DAs to process and divert these cases out of the courts, communities might also ask for increased early interventions by public housing, public health, and the civil courts.

It is an oft-repeated trope that to someone with a hammer, everything looks like a nail.  Americans should turn out to vote for their local reform DAs, and the winners of those elections should continue the trajectory that some have started towards reducing the nation’s prison population.

Lucy Lang

Lucy Lang. Director of the John Jay Institute for Innovation in Prosecution

But perhaps instead of asking the criminal justice system to look like a different tool entirely, communities would be well served to ask the other “tools” — many of which are agencies that are not electorally accountable — to rise to the occasion and help end mass incarceration as well.

Lucy Lang is the Executive Director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice. She welcomes readers’ comments.


Justice Reformers, ‘Fueled by Sense of Urgency,’ Vow to End Status Quo

Jeremy Travis and Bruce Western, leaders of the so-called Square One Project, say their project will sponsor a series of roundtables across the nation aimed at transforming the justice system. According to Travis, the status quo in criminal justice is “profoundly unacceptable.”

A new push to “reimagine” the criminal justice system is “fueled by a sense of urgency” that the status quo in criminal justice is “profoundly unacceptable,” says Jeremy Travis of the Laura and John Arnold Foundation.

Jeremy Travis. Courtesy John Jay College

Travis, former president of John Jay College of Criminal Justice, and Bruce Western, now of Columbia University’s Justice Lab, led a study by a National Academy of Sciences panel four years ago that traced the sharp growth in incarceration in the United States since the 1970s.

Now, Travis and Western are leaders of a new effort funded by the Arnold Foundation along with the John D. and Catherine T. MacArthur Foundations that was formally launched on Thursday at the National Press Club in Washington, D.C.

The so-called Square One Project, promoting the idea that the justice system should be redesigned from “square one,” consists of two primary segments—an “executive session on the future of justice policy” that will help generate “a new narrative of justice in America,” and a series of roundtables across the nation to hold open discussions of key criminal justice issues.

Travis and Western made clear that the new project was conceived as a follow-up to their study on the nation’s prison growth. (It was the same issue—the fact that more than two million people are locked up in prisons and jails—that prompted former U.S. Sen. James Webb to promote the so-far-unsuccessful idea of a new national crime commission.)

Western noted on Thursday that since the National Academy of Sciences study was issued, the U.S. incarceration rate has declined a bit but remains far above the level of the mid-1970s.

In a paper on criminal justice reform issued as the new project began, Western cited “a large racial disparity: black men are five to six times more likely to be imprisoned than white men.”

Despite a series of criminal justice reforms in recent years, the fact remains that “prison populations are extraordinarily large and criminal justice agencies are focused in myriad ways on the task of punishment,” Western said.

Bruce Western

Bruce Western

One focus of the “reimagining” justice project will be on the intersection of three problems: racial inequalities, poverty and violence, Western explained.

He wrote that poor neighborhoods must “contend with violence” and that “violence can flourish where poverty has depleted a neighborhood of steady employment community organizations, and a stable population that can monitor street life.”

The first roundtable sponsored by the project, to be held in October at North Carolina Central University in Durham, will concern issues involving race and criminal justice.

Arthur Rizer

Arthur Rizer

Another strand of the project discussed on Thursday was a “call for a revised set of values in criminal justice” from Arthur Rizer of the R Street Institute, a research organization that describes its aim as helping “to promote free markets and limited, effective government.”

Rizer published a paper for the project advocating application of the limited government concept to criminal justice. He contends that “the overcriminalization and overincarceration of justice-involved individuals has resulted in the depletion of state coffers across the nation.”

“Local, state, and federal policymakers should be continuously seeking … to increase an individual’s likelihood of rehabilitation and, therefore, to reduce crime while wisely stewarding taxpayer dollars,” Rizer argues.

Travis stressed that a goal of the project, which is scheduled to last for three years, will be to “build a network” of people nationwide who will press for more effective criminal justice practices.

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


‘Don’t Mistake Punishment for Justice’

A journalist whose brother was sent to prison for murder recounts the long-term impact on his family and community in “My Brother Moochie.” In a conversation with TCR about his book, Issac Bailey explains how the experience informed his own perspective about race and incarceration in the American South.

my brother moochieWhen Issac J. Bailey was nine, he watched his brother taken away in handcuffs for the crime of murder. Now a veteran journalist, Bailey explored the mixed feelings of guilt and shame experienced by his family in My Brother Moochie, a very personal account of the long-term impact of incarceration in the racially polarized climate of the American South.

In a conversation with The Crime Report, Bailey, a 2014 Nieman Fellow at Harvard and a veteran reporter at the Sun News in Myrtle Beach, S.C. whose work has been published in Vice, Politico, and the Washington Post, discusses what it was like to grow up with a brother he saw as a “hero” behind bars for a heinous crime, what the experience revealed about the distrust between black communities and police in America, and why he subtitled his book, “Regaining Dignity in the Face of Crime, Poverty and Racism in the American South.”

The Crime Report: You talk about the pressure black people face in America, and not wanting to validate stereotypes when you or someone you care about in the black community commits a crime or does something that’s reprehensible. That sounds like a difficult thing to constantly have to deal with

Issac Bailey: It’s a huge piece of it, and what it does, is it constantly shames you.  I’ve been a journalist for the past 20 years, and have actually written for white, conservative audiences. What made it even more difficult is when I’m trying to humanize characters who do awful things, one pushback that I get is this idea that black people are more violent, and therefore we should be in prison more, etc.  Some of them have brought up my own families’ problems, and that stings.  So that’s been one of the reasons why it has been so difficult to try to shake some of this black shame.

TCR: Your brother Moochie faced decades of prison time, can you talk about his experience in jail, things he and other inmates face in jail, how he stayed mentally healthy, and how he coped?

Bailey: One of the things that stood out to me first, when initially during his sentence we were still young and still visiting every weekend and the holidays, he mentioned having to stuff things under his doors just to keep the rats out of his cell. He actually talked about how he would do anything necessary not to get raped, but at the same time he wouldn’t carry a shank because he said it would be too tempting to use it. He said there were constant physical threats daily.

For him, though, the mental part was even more difficult, especially when he had to spend seven years in solitary. He became a new person in prison; he actually came to see himself as a kind of African warrior. Stuff like that helped him to serve those decades in prison. Also, lots of reading and meditation helped him to try to hold on to some of his sanity.

TCR: Can you elaborate on his time in solitary?

Bailey: Once he became a Rasta he grew his dreadlocks out. In 1995 or so, the prison adopted a new grooming policy, where each inmate needed a short haircut, and he actually said no to that. He held out for seven years, but then once he cut it he got out of solitary.

TCR: Your mother is another huge character in your book, she seemed like the main force keeping your family together through tough times, and she grew up under tough circumstances as well. Where do you think she got her inspiration from?

Bailey: I do think she’s naturally tough, and even though she only had a fifth-grade education and didn’t get her GED until she was 65, she was the smartest person in the family. But her faith is her foundation for everything.

TCR: You talk about southern Christianity, and it seems to take this dual nature in your book. Martin Luther King Jr. was a Christian, but there are white supremacists who also say they’re Christian advancing racist ideologies. How do you currently view Christianity in light of your experience and the current social and political climate?

Bailey: My views on Christianity have really changed and been challenged over the last couple of decades. What I’m finding too often, especially when it comes to race, is that there are so many white Christians who would pray for your soul, but don’t want to fight for racial justice. In 2016, many of them whom I knew and went to church with for about 17 years or so, constantly made excuses for (President) Trump’s bigotry and still are.

That makes me wonder is it really a good faith to have? I’m still struggling with that. I have seen this faith strengthen my mom through really tough times, so I can definitely see the good in it, but on the other hand, I’m seeing it used for bigotry, and that has been a massive disappointment.

TCR: You say in the book that “punishing crime is a necessary evil but building stronger communities and families require no longer mistaking punishment for justice.” Would you elaborate?

Bailey: Too many of us think justice means actually locking somebody away for doing something awful. But if we don’t actually fight to end all the sort of ripple effects of it, then all that we’re doing is actually sort of making more problems. When someone does something wrong, they must face some sort of real consequence, but if you don’t account for the effects on vulnerable families, then I think you are seeding the ground for more awful things to happen later.

TCR: You talk about attending Moochie’s first parole hearing. It sounded very cold; you were speaking to people through a TV for example. What was that like?

Bailey: It just felt really belittling. Especially because you have no real control or no real say in it, even though they let you speak. You get the sense that they’ve made up their minds long before you walk into that room. Also, what makes it such a tough thing is that you actually know going in that most people are turned down. You try to balance having some hope and trying to be realistic at the same time. You’re trying to convince yourself that you can actually say something during that hearing that will actually make a difference, even though you know that’s not true.

TCR: What do you think they’re really looking for in those parole hearings?

Bailey: That’s a great question, I got the sense that what they want to be able to say later on is that you apologized and showed real remorse. If you do that and if something bad happens later on, they can at least say that you said the right words. But really, they look at your record beforehand and decide then.

TCR: I’m guessing those years he spent in solitary did not help his chances.

Bailey: Yes, during that time he couldn’t take any classes or do any sort of training etc., which they also use to evaluate your progress inside.

TCR: Switching gears here, how do you think the media in general covers race today? Do you think it could be improved?

Bailey: I think we have a lot of problems with the coverage, with mainstream media in general. When I got into the business, I was told not to write about certain kinds of people because the audience would not be able to relate to them. So they were talking about families like mine essentially. Many journalists today actually don’t have a rounded view of race or crime. On the other side, some journalists are so sympathetic they write in misleading ways, and sometimes they write people into these caricatures that always need to be protected. We need more rounded coverage of the criminal justice system itself so we can actually deal with the truth as it is.

TCR: You talk about police brutality and young black men getting shot in the U.S. While abuse has likely decreased since previous decades, I assume you would agree there’s still major problems with police brutality and institutional racism?

Issac Bailey

Issac J. Bailey

Bailey: Yes, even right now, I meet young black dudes who tell me they’ve been beaten by cops or harassed etc., and they actually still don’t report it because they don’t trust the system enough that these cops will be held accountable. I think it’s still being under-counted. Many black dudes just take it in stride and don’t tell anyone about it, even now.

TCR: In the book, one of your younger brothers says, “Real men go to prison.” I found that pretty shocking.

Bailey: Yeah, they had gotten so deep into this prison and street mindset, they really believed you cannot actually be a real man until you have gone to prison and survived it. For them, any man who hasn’t gone to prison can’t be a really strong man. They don’t think that way any more, fortunately.

TCR: You write that former President Barack Obama was making some good steps towards criminal justice reform. Can you expand on that?

Bailey: I would say he got the ball rolling again, in addition to his record number of commutations which were also huge. But the biggest thing was the Department of Justice’s strong oversight of police departments. If you can get more accountability there, than you can try to reestablish trust, at least between the cops and those affected neighborhoods. For me that was a major move. Given time, that would have benefited everybody. That’s why Trump’s move to pull back from that is one of my major disappointments in this era.

TCR: What do you think of neighborhood policing strategies that try to build more trust between police and the communities they serve?

 Bailey: I think it’s good in theory at least, where you are actually trying to establish bonds between the cops and the residents. I actually think that breaks down, once you see a cop who does something wrong and not get punished for it. That kind of law enforcement is seen as a Trojan horse where they’re more out to get you than help you. As long as that distrust is there between the cops and the residents, it’s going to be difficult for these programs to really take hold. If accountability is not there, then these attitudes and distrust will fester.

TCR: Have you seen any accountability when a cop kills a black man unjustifiably?

Bailey: At least from what I’ve seen, most often no. It is rare for officers to face any criminal charges at all, and when they do, juries will find them not guilty anyway. In 2015 or so, there was a drug unit who broke into a guy’s house, shot him nine times, paralyzed him for life, and then lied about the details of it, saying they knocked first. At the end of it, none of the cops faced any charges or any kind of discipline. Once you have those kinds of situations, I can’t stress enough how much distrust that generates.

TCR: Are there any organizations or people you like to follow in terms of criminal justice reform?

Bailey: I’m actually focused on something that doesn’t feel like criminal justice reform but it really is. My wife founded a nonprofit called Freedom Readers, where she’s just trying to improve literacy in really tough neighborhoods. She’s been able to bring in all sorts of volunteers in terms of educators like teachers, cops, and business men and women, all kinds of folks. What she’s been able to do is let outsiders see a more rounded view of these kids and their neighborhoods. That will go a long way in making it easier to have deeper conversations as to why criminal justice reform is so important.

TCR: Finally, how is Moochie doing?

Bailey: He’s been out for almost four years now. And he is getting better day by day, even though there are tougher days than others, which I can trace back to his time in solitary honestly. At least for us, we have a pretty large family, so he’s been able to call on each one of us at various times in order to help and guide him. I think that has been very helpful, but he still has more adjusting to do.

Dane Stallone is a TCR news intern. He welcomes comments from readers.


How Criminal Justice Reform Can Move Forward in the Trump Era

Criminal justice reforms are under attack in the Trump era and require immediate attention from state and local governments,  as well as action from the formerly incarcerated, according to a Yale Law professor. 

Criminal justice reforms are under attack in the Trump era and require immediate attention from state and local governments, as well as action from the formerly incarcerated, according to a Yale Law professor.

Author Miriam Gohara, writing in the Stanford Journal of Civil Rights and Civil Liberties, said that progressive criminal justice reformers must remain vigilant to threats against rollbacks of mass incarceration, particularly when Attorney General Jeff Sessions “has redoubled his commitment to policies designed to put more people behind bars.”

Gohara cited Sessions’s May 2017 memorandum to U.S. Attorneys requiring federal line prosecutors to pursue the most serious provable charges against defendants as one rollback to criminal justice reform.

The memo rescinded then-Attorney General Eric Holder’s 2013 directive that federal prosecutors should avoid charges to which mandatory minimum sentences would apply to certain low-level non-violent drug offenders.

Aside from “executive branch policy,” she also noted Sessions has remained staunchly opposed to legislative sentencing reform, even when his stance puts him at odds with congressional Republicans and other conservatives.

For instance, during President Trump’s first year in office, Republican Senator Charles Grassley introduced a criminal justice reform bill that included provisions curtailing the applicability of mandatory minimums and reducing enhanced penalties for previous drug crimes.

Sessions, citing concerns about rising violent crime rates, called the bill a “grave error.”

Gohara proposed that justice reform should be left to local governments and formerly incarcerated.

More, she suggested that they focus on reforms that address non-violent crime.

First, she he advised local policymakers reward, replicate, and expand local reforms because the building blocks of mass incarceration were laid by countless state and federal politicians, policymakers, prosecutors, and judges for the past four decades.

But local governments also have the power to unravel mass incarceration, if they so choose.

“The good news is new initiatives have begun in many places, and federal policy will have little, if any, detrimental effect on most state and local reforms,” Gohara wrote.

Non-violent should be at the heart of criminal justice reform, she continued.

Notably, most Americans are sitting in prison for non-violent offenses, which is why “any meaningful dismantling of mass incarceration will need to reckon with punishment for violent offenses.”

Last, Gohara argued formerly incarcerated people have a large role to play in justice reform. They should be “co architects” of a new framework for justice.

In reality, imprisoned people are also disproportionately victimized by crime.

So, by bringing together the formerly incarcerated population and victims of crime, both parties can work together to reform the system.

This “creates a powerful opportunity for crime survivors who have served time in prison to join forces with those who have not to identify a reform agenda that treats everyone swept into the criminal justice system with humanity,” the law professor concluded.

A full copy of the report can be found here.

Megan Hadley is a staff reporter for The Crime Report. Readers’ comments are welcome.


Solving America’s Rural Jail Crisis, One Jail at a Time

In North Carolina’s Durham County, reforms have begun by simply making better pre-trial services available, according to an investigative report by the Smoky Mountain News.

When county jails are constantly at or over capacity, the easiest answer seems to be to build a bigger one.

G. Larry Mays, a New Mexico-based criminologist who has studied jails for 35 years, says communities need to start examining the bigger picture if they want to reduce the number of people sitting in jail.


Illustration courtesy Smoky Mountain News

“You can’t build yourself out of a crowding crisis — the shoe tells the foot how big it will grow,” he said.

The more jails that are built, the more it will cost taxpayers to operate and maintain those facilities. At an average cost of $80,000 per jail bed, a new 150-bed facility could cost a county $12 million or more as construction costs are on the rise.

For a facility that only has an estimated 30-year life expectancy, constructing a new jail is not a decision that should be entered into lightly.

Dr. Allen Beck, who has been a criminal justice consultant since 1983 and a principal of Justice Concepts Incorporated (JCI), says local jurisdictions can take one of two approaches to addressing criminal justice system operations — passive or active.

“A passive role is the most costly. This role accepts arguments that the system does not need improvement and that the number of inmates housed in jail cannot be altered,” Beck wrote in a JCI report.

“In contrast, the active role recognizes that improvement is possible in all aspects of government, which in this instance happens to be the criminal justice system. There is always the possibility that significant improvement might be made in controlling growth of the inmate population.”

As part of a year-long investigation into the nation’s rural jail crisis, the Smoky Mountain News examined jails in western North Carolina. One of them, the Durham County Detention Facility, offers a case study in how change can be driven by improving pretrial practices.

 The Durham Facility opened in the summer of 1996 with a capacity of 576 single cells. By 2005, the jail was at or over capacity a majority of the time.

“That’s when we started our pre-trial services,”  said Gudrun Parmer, director of the Criminal Justice Resource Center in Durham County.

“Now our jail population has gone down by 20 percent. We don’t have an overcrowding problem and our average daily population is lower than it has been since the jail opened.

“We can’t reduce the cost of the jail itself — most of that cost is fixed — but we are 15 years past the point where the county started talking about building a new one so we’re saving future costs.”

The work involved to get to those results hasn’t been quick or easy, but Parmer said the payoff has been worth it for the county.The Criminal Justice Resource Center in Durham County has been in place since the late 1990s, when North Carolina’s General Assembly passed reforms that put more uniform sentencing in place for felony convictions.

The state reform also included grant funding for most counties to allow them to provide services to people being sentenced under the new grid.

With more state reform coming out of the General Assembly in 2011, the original grant funding that helped establish the Durham resource center was done away with, but efforts have continued and programming has increased to provide services to people throughout the criminal justice system.

“In Durham, our community has grown well beyond that original program. We have services for people from the pre-arrest diversion programs all the way to our local re-entry program for when people are released,” Parmer said.

The center still goes after a number of grants each year, especially if it’s looking to start a new program, but Durham County funds the programs that are deemed a success after a good trial run. A consolidated county criminal justice department also helps to save money.

“If we add a program, we don’t have to add administration — it’s more cost effective and we have a seamless system at this point for the adult population,” she said.

Pre-Arrest Diversion

The pre-arrest diversion program targets first-time offenders ages 16 to 21 for misdemeanor charges. Instead of being arrested, the person has 90 days to complete a community diversion program based on their individual assessment and needs.

If the person completes the program, the incident report is closed out and the offense doesn’t show up on the person’s record. If the person doesn’t complete the program, the arresting officer can proceed with criminal charges and prosecution.

The resource center’s pre-trial services also include being inside the jail to screen everyone being booked using a standard assessment tool — this process allows resource center staff to provide judges with the most accurate information summary about each person when they have their day in court.

Judges also utilize the resource center when it comes to setting a person’s bail. Sometimes a judge will turn the case over to the resource center for supervision in lieu of setting a money bond or sometimes it’s a combination of a money bond and supervision.

The substance abuse and the mental health court diversion programs inside the jail have also been helpful in keeping the inmate populations down while getting people the help they need.

“We have the most extensive mental health services in any jail in North Carolina — we have a whole team of people,” Parmer said.

The team works with inmates who’ve been diagnosed with severe or persistent mental illness to get them on the right medication, getting support while in jail and helping them connect with community health services once they released. The Mental Health Court allows people with mental illness to go through support services in lieu of a formal court process.

The same goes for people suffering from drug addiction: If they complete the program the district attorney will drop the charges.

Durham County even has re-entry services to help people get back on their feet after they are released from jail in hopes of cutting down on high recidivism rates. The resource center’s team of caseworkers is on hand to help people find housing, employment, get medications, food and clothing. These services are typically available for two to six months after release to ease the transition.


Sheriffs across western Carolina are re-assessing the need for jail expansion. Here, Swain County Sheriff Curtis Cochran checks in with detention officers at his jail’s booking desk. Photo by Jessi Stone.

Parmer has found that most people being released from jail don’t know where to turn for assistance and often times they’re in a worse position than when they were arrested. They could have lost their job, their children and any other stability they had in the community.

“We also connect people that have no support system with a faith-based group that will then become their support system when they’re released,” she said. “People just need somebody to help them maneuver the system. They need to know and see what it’s like to lead a life without drugs — it’s not always glamorous.”

More recently, the resource center received a grant through the MacArthur Foundation’s Safety and Justice Challenge Initiative  to develop a notification system to remind people of their court date. This is one method local jurisdictions are testing to see if the money bond system can be replaced.

“With the IT department, we developed a web app where people can sign up for court reminders. It’s free and it was developed in a way that it could be used by any county in North Carolina,” Parmer said. “We started it a year ago and utilization is rising steadily. We have about a third of our cases on there for reminders.

“The grant is finished but we’re continuing it. It’s a customer service thing that really the state and the courts should be providing.”

If the notifications can get more people to their court date, then the system would be less bogged down with failure to appear charges and subsequent bench warrants, revoked bonds, deputy and police having to find and bring people in a second time, and higher incarceration rates. The cost associated with failure to appear charges falls on the local taxpayers.

“It’s not easily analyzed statewide, but I’d say probably 10 percent of people in criminal District Court in Durham don’t show up,” she said. “If you’re picked up on a failure to appear, it’s a county cost and a tremendous amount of paper work for the state to process.”

Jail Population Down 20%

The tangible success is that Durham County has decreased its jail population by 20 percent and isn’t looking to spend millions in the immediate future to build a new detention center. Also, the resource center’s diversion programs have had a 90 percent success rate, meaning only 10 percent of clients return on another arrest.

Parmer said there have been even more anecdotal successes that have come out of offering more services. The employment program finds temporary positions in the county government for people released from jail. The resource center’s clients can work with a department full time for six months at $15 an hour.

At the end of the six months, Parmer said, many have been hired on permanently as a county employee. She’s stopped seeing many of the same people struggling with mental health or addiction coming back into the jail time and time again. People who’ve gone through the substance abuse program are still attending NA meetings some 20 years later.

Recovering addicts are also becoming leaders in these programs, whether it’s through NA or by becoming a peer specialist at the resource center.

“Some people we have connected to the faith community are now working as a coordinator for a program,” she said. “We’ve established peer support positions because we know that someone who has gone through the system can provide much better insight and connect better to our clients.”

The biggest improvement the resource center has made is moving people more quickly and efficiently through the system by providing them with the services they need to work toward rehabilitation and stabilization.

“The real impact…is having services along the continuum to help them move forward,” Parmer said.

Her advice to other counties just getting started on trying to rein in overcrowded jails is to start by examining the jails — knowing who’s in the jail, what they’re charged with and how long they’ve been incarcerated.

“Start with a data analysis and begin looking for easy opportunities — lower-level cases — for release. Ask is it worthwhile for your community to lock someone up for a week for shoplifting because they can’t post a $500 bond. We need to ask ourselves if we can give someone a citation and still charge them without arresting and booking them,” she said.

“We need to make sure we’re locking people up for the right reasons.”

Jessi Stone

Jessi Stone

Jessi Stone is a 2018 John Jay Justice Reporting Fellow. The above is a slightly edited compilation of two of the stories in the Smoky Mountain News’ yearlong jail investigation, part of a reporting project undertaken as part of the Fellowship.  The full series and other projects completed for the fellowship can be accessed here.  Jessi welcomes comments from readers.


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.


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.


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.


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.