‘The Nearly Perfect Recidivism Machine’

Texas criminologist William Kelly’s new book calls for a top-to-bottom transformation of a justice system that recycles thousands of Americans without offering them a way to change the behavior that sent them behind bars. He explains his recipe for “disruptive innovation” in a conversation with TCR.

“One would have to look far and wide to find a greater public policy failure than the American criminal justice system,” writes Texas criminologist William R. Kelly in the opening chapter of his new book, From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice (Rowman & Littlefield).

William R. Kelly

Kelly, a University of Texas-Austin sociology professor, has long been one of the country’s toughest justice critics. In this book, he offers a plan for top-to-bottom transformation of the system, in collaboration with federal judge Robert Pitman and psychiatrist William Streusand.

A key “disruptive innovation” of the book’s title would include reforms to rein in the charging powers of prosecutors. Kelly recommends the creation of independent panels of clinical experts that would screen offenders and recommend to prosecutors who ought to be diverted to treatment.

“There is nothing about punishment that changes the underlying conditions, disorders and deficits that the majority of criminal offenders bring into the justice system,” Kelly says. Arrestees with mental illness, substance-use disorders, homelessness and other problems churn through the system and into prison, where the underlying issues that led to a lawless life are ignored.

In a conversation with TCR Contributing Editor David J. Krajicek, Kelly explains why he believes the system should incorporate more carrot and less stick for offenders and how the Trump administration’s approach threatens to make things worse. He also suggests that the public already has a more sophisticated view of how to fix the system than our political leaders.

The Crime Report: What is the impact of the country’s justice policy failures?

William R. Kelly: The short financial and statistical answer is that over the past 45 years, we have spent $1 trillion on the war on crime, $1 trillion on the war on drugs and have accomplished a recidivism rate of 65 percent. Nearly all of this effort has focused on trying to punish crime out of people, based on naïve conceptions of criminality such as “hanging around with the wrong people” and “making bad decisions.” The evidence is quite clear that crime has much more complex origins and correlates.

What we have accomplished is a nearly perfect recidivism machine, placing all of us at the unnecessary and avoidable risk of criminal victimization, and wasting extraordinary amounts of money.

TCR: You refer to “the culture of American criminal justice.” What are its key characteristics and how do you change it?

Kelly: It is squarely based on the “tough on crime” mantra. This has dictated the decisions of legislators, prosecutors, judges, and corrections officials. The focus over the past 45 years has been driven by retribution and misguided assumptions that punishment deters re-offending. The question that has been routinely asked is how much punishment does this offender deserve. A more productive question for many offenders is how do we reduce the likelihood a particular offender will reoffend…

We need to provide clear incentives to motivate changing how we think about crime and punishment. Cost-benefit analyses conclusively show that behavioral change through clinical intervention like mental health and substance use disorder treatment is much more effective and cost efficient. The financial advantages should motivate legislators and local government officials. Reducing recidivism should be an incentive for prosecutors, judges, public defenders, and probation and parole officers, who will benefit from reductions in caseloads. Then there is the greater good of enhanced public safety, something we incorrectly assume the justice system already does.

TCR: You say the facile American view of crime and punishment got us here. Have voters grown more sophisticated, or are reform-minded pols still at risk of being Willie Hortoned?

Kelly: Public opinion data demonstrate that much of the public has a more nuanced view of crime and punishment than many legislators, prosecutors and judges. The public believes that the purpose of corrections is to rehabilitate offenders and therefore reduce recidivism. Many have moved beyond “lock ‘em up and throw away the key.”

Unfortunately, many policymakers, elected officials and some segments of the public still seem to be holding on to the idea that criminals are just bad people deserving maximum punishment. I’m sorry to say that Willie Horton is alive and well…There appears to be a reluctance to really embrace meaningful, comprehensive criminal justice reform.

TCR: You write, “We have arrived at the nadir of politics and policy.” Did you write that before or after Donald Trump’s election?

Kelly: I wrote that before Trump was elected when I incorrectly believed that we had already reached bottom. Who would have thought that anyone with any sense of history and even a superficial exposure to the evidence would run as the law-and-order candidate and resurrect the war on drugs?

TCR: How do you demonstrate that “tough” and “dumb” are synonyms when it comes to criminal justice?

Kelly: You focus on the enormous financial waste that the justice policy has produced. While there will be endless debates about what’s right or just and who deserves what, it is pretty hard to ignore the bottom line. A recent study estimates that the criminal justice and collateral social costs of tough on crime is $1 trillion per year. And it’s hard to reconcile 65 percent recidivism.

TCR:  Who’s to blame for the state of “correctional malpractice” you say we are in?

Kelly: First and foremost, elected officials who have blindly championed “tough on crime” policies to their political benefit, but to the detriment of public safety and the prudent use of tax dollars. State legislators and Congress have provided the mechanisms for tough on crime—mandatory sentences, restrictive parole release laws, and an ever-expanding criminal code that seems to make criminal justice the go-to system for just about every social ill.

But the culpability of elected officials goes well beyond that. The vast majority of offenders in the criminal justice system have a substance-use disorder, 40 percent are mentally ill, and 60 percent have had a least one traumatic brain injury often leading to neurocognitive dysfunction…The decision to not properly fund public health, schools and social welfare agencies has created problems that by default are managed by the criminal justice system.

Criminal justice reform means much more than merely reforming the criminal justice system. It requires massive changes to and investment in a variety of collateral institutions.

TCR: Your book articulates and recommends a scientific approach to justice reform. Yet science is out of favor in Washington and many state houses. Is there a scientific path forward?

Kelly: Yes there is, but I am afraid that we need to disguise it for some, by minimizing the science and emphasizing the public safety benefits and cost savings.

TCR: You note an overlooked data point: The country has 21 million people with substance-use disorders, the world’s third-highest rate. What explains this particular American exceptionalism?

Kelly: It is largely a result of the lack of public substance abuse resources, including inadequate treatment capacity and insurance coverage. Much of it can be attributed to the failure of the war on drugs and the belief that we can either punish or threaten substance abuse out of people. Criminalizing substance abuse rather than treating it as a public health problem has led to the failure to provide adequate funding for treatment.

Unfortunately, the picture is bleaker. The majority of substance abuse and mental health treatment in the U.S. is paid for by Medicaid. Current versions of repeal and replacement of the Affordable Care Act call for substantial cuts to Medicaid. That does not bode well for a problem that is crippling the country, the economy, communities, families, and the justice system.

TCR: You write that we have used an absurdly simplistic approach (lock ‘em up) for a boundlessly complex problem. Explain briefly the research on co-morbidity among inmates.

Kelly: The vast majority of offenders in the criminal justice system have clearly identifiable disorders, deficits and impairments. Many have more than one disorder, known as co-morbidity or co-occurring disorders. For example, the majority of offenders with a mental illness also have a substance-use disorder. Neuro-cognitive problems are often co-morbid with mental health and substance abuse. It does not require a clinician to appreciate that “lockin’ ‘em up” does nothing to alleviate these conditions and in fact typically exacerbates them.

When we do attempt to address these problems–diversion to a drug court or a mental health court–our focus is on just one crime-related condition. Our correctional treatment and rehabilitation efforts typically ignore co-morbidity.

TCR: What do the rest of us in a presumably civilized society owe these damaged people?

Kelly: I don’t think it’s so much what we owe them, but what do we owe ourselves: lower crime and recidivism, lower risk of being victims of crime, and lower cost of criminal justice. We have the tools to accomplish these things, but making it a political priority has been elusive.

TCR: You compare the U.S. system to those of Germany and Holland; it doesn’t stack up well.  You cite one lesson we can learn from those countries: “If you treat inmates like humans, they will act like humans.” How is it possible that we don’t know that already?

Kelly: In order to justify our draconian and dysfunctional reliance on punishment, we need to think of criminals as “not like us” in fundamental ways, as deserving retribution and harsh punishment. Punishment is what we have been told is the only thing “these people” will understand.

Our Western allies have better outcomes for those they incarcerate because they focus on preparing offenders to be released and live crime-free, productive lives. Our approach often is to de-humanize prison inmates and emphasize punishment over rehabilitation. We do little to facilitate successful reentry into society.

Psychological research confirmed a long time ago that, in most cases, incentives work much better than punishment for changing behavior. This is another example of the disjuncture between scientific evidence and criminal justice policy.

 TCR: Your key recommendation is an “unprecedented expansion” of diversion away from court toward intervention and treatment. Describe the panel review process you suggest.

Kelly: Traditional criminal prosecution, conviction and punishment are entirely appropriate for many offenders. For example, violent offenders and chronic, habitual offenders probably need to be separated from society through incarceration in the interest of public safety. For many others, such as non-violent offenders and many drug offenders, we have a much better chance of reducing recidivism by diverting them and mitigating the factors that are associated with their criminality. One of the key issues here is making good decisions about who to divert and who to prosecute.

We developed the concept of independent panels of clinical experts to facilitate better decision-making, both in terms of who should be diverted and what treatment or intervention will decrease the probability of recidivism. Offenders often have complex clinical needs that require the special expertise of psychiatrists, psychologists and clinical social workers who can assess and diagnose, determine the risk of re-offending, and make recommendations to prosecutors.

The goal is to divert appropriate individuals away from traditional prosecution to situations where their risk can be supervised and managed and where they can receive adequate treatment and intervention.

TCR: And this is the “disruptive innovation” of your book title?

Kelly: The panels are part of it. Implementing this concept will require a substantial shift in how prosecutors do their jobs, as well as how we think about crime and punishment. In effect, this requires changing the criminal justice culture.

We also argue that all levels of government need to address major deficiencies in public health, a fundamental consideration in assuring adequate capacity and expertise for intervention and treatment. The bigger picture is that criminal justice reform requires disruptive innovation of collateral institutions, such as public health.

TCR: And how might it be greeted by prosecutors, who hold all the power right now?

Kelly: This will not be easy. However, reasonable incentives for prosecutors should be recidivism reduction, in turn reducing caseloads.

The primary reasons that prosecutors’ caseloads are so large and unmanageable relate to the failure to reduce recidivism.

TCR: You say these changes will force us to redefine success in our justice system. How so?

Kelly: Success should be measured by recidivism rates, something directly related to performance of criminal justice. As it stands now, there really is no accountability. Everyone involved in criminal justice–legislators, police, prosecutors, defense attorneys, judges, and corrections officials–should all be held responsible for recidivism reduction. That would also be a disruptive change.

TCR: Tell me about the process of partnering with Robert Pitman and William Streusand in this book.

Kelly: I wrote the book, but both Pitman and Streusand played very important roles in devising solutions. For example, Pitman, a former U.S. Attorney who is now a federal judge, brought his knowledge and expertise to the task of developing statutory and procedural details for how the expert panels would fit into the roles and responsibilities of prosecutors, defense counsel and judges.

The input of Streusand, a psychiatrist, was crucial in the development of the clinical protocol for the expert panels and assessing offender dysfunction, as well as the discussions about fixing public health.

TCR: You were going through a serious health crisis while writing this book, as you point out in the introduction. I hope you are doing well. I wonder if that diversion somehow informed the book’s content.

Kelly: Thank you. I am in complete remission and feel very blessed. To be honest, it could not have worked out any better. I was diagnosed in early March of 2016, when I had a rough draft of one chapter written. I was so fortunate that I had this project to distract me from the reality of being pretty sick and going through some difficult chemo. It was also fortuitous that I had two collaborators who are very good friends and played important roles in my recovery.

I’m not sure that being sick informed the content, but I suspect it influenced the tone. If I sound impatient at times in the book, it is probably a result of being confronted with the reality that life is short.

David J. Krajicek (@djkrajicek), a contributing editor with The Crime Report, has been writing about criminal justice since the 1970s. He welcomes readers’ comments.

from https://thecrimereport.org

White Collar Crime: Why Top Execs Escape Prosecution

Financial journalist Jesse Eisinger argues in a new book that federal agencies like the Department of Justice and the Securities and Exchange Commission are “broken” systems that allow corporate bosses to evade the criminal consequences of wrongdoing. He explains why in a conversation with TCR.

When Pulitzer Prize-winner Jesse Eisinger covered capital markets for the Wall Street Journal and Conde Nast Portfolio in the early 2000s, he began to see early hints that the subprime market bubble was close to bursting. When the inevitable crash happened, he probed further into the roots of the disaster for ProPublica. His exploration of what he terms “bad behavior” has now turned into a book that bluntly takes the federal government to task for not prosecuting the financial skullduggery that seemed hard to miss at the time.

Like the book’s title, “The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives,” Eisinger doesn’t mince words. In a conversation with TCR Deputy Editor Victoria Mckenzie, he explains how the “culture” of prosecution at the Justice Department has subtly changed as “hot-shot” government lawyers look forward to lucrative careers as white-collar defense attorneys, why he thinks the Obama Administration accentuated the shift, and why the DOJ should consider hiring lawyers who are older and come from more diverse backgrounds.

The Crime Report: What drove you to write the book?

Jesse Eisinger: (When I moved to Pro-Publica) we did a series of stories about bad behavior from the banks in the lead-up to the financial crisis. Misleading investors about CDOs [Collateral Debt Obligations]. It was sort of excavating the big short trade, where people were secretly betting against these structures. And what we found was a hedge fund that had secretly gone to investment banks to have them make these mortgage securities, and then secretly was betting against them. Sometimes the investment banks knew.

We found a lot of other (bad) behavior in this CDO market, which were bundles of bundles of mortgages, very complicated instruments, and we thought it was obvious that there was going to be a huge crackdown coming. And then really nothing happened. No criminal investigations. My book is not a criminal brief, making the case for prosecutions of some individuals. I’m not a lawyer, that wasn’t the task I set before myself. But I set out to explore why this (prosecutions) isn’t happening. And one of the reasons it’s not happening is that they didn’t really even look. If you don’t look, you’re not going to find crimes.

It started to dawn on me that the Department of Justice and the SEC were broken institutions when it came to corporate white-collar (crime) enforcement. In the wake of the financial crisis, I started to see other examples in the tech world, in the pharmaceutical world, in the industrial world, in retail— Walmart, Google, Pfizer— companies that were making mistakes, admitting to wrongdoing, (even) criminal wrongdoing, but no senior individuals were being charged. I realized that this is a broken system, and I thought this really needed some kind of true examination from a historical perspective. I wanted to figure out— how did this evolve?

 TCR: One of the large themes in your book was that zealous DOJ prosecutors in the early 2000s actually created the market for white collar criminal defense (or ‘Big Law’), and the two almost evolve into a single entity in some senses. You write that it is now almost a forgone conclusion that a young prosecutor will end up in a lucrative private firm.

JE: That’s a really big part of the problem, and I wanted to do trace how it came to happen. When you had these big white-shoe law firms in the 1950s, 1960s, they didn’t do criminal representation for their corporate clients. That was done by boutique (firms) that specialized in criminal law. In fact the criminal bar was kind of looked down upon by the white-shoe firms at that point.

Today, there’s a seamless world, where prosecutors– mostly young— in the Southern District and Main Justice, the hottest shots from the Department of Justice, almost all go to white collar criminal defense work after their stint at the DOJ. Essentially, the DOJ is being treated like a training ground for future criminal defense lawyers.

 The people at the Southern District and now in Main Justice are the best of the best of the best. They have gone to the best high schools, to get into the best colleges, to get into the best law schools, to get the best clerkships, and then they’ve gotten these very competitive jobs as prosecutors. They’re pleasers. They’re not free spirits, they’re not entrepreneurs particularly— they’ve taken a relatively safe path to be lawyers. They are straight arrows— admirable people who want to do public service. It’s not the ‘bro’ culture of Silicon Valley. But they’re kind of rigid in their thinking.

(But when) you’re in the prosecutorial role, it’s a completely different incentive. You need to be a displeaser, you need to seek to deprive people of their liberty when they’ve done something wrong. And when you’re going up against corporate criminals, you’re going up against the sons and daughters of your professors or the parents of your classmates. There’s a sort of elite affinity where they just don’t look at well dressed, articulate, well-dressed bankers from Goldman Sachs, and see a criminal.

TCR: You write that in fact, these young prosecutors have to become “class traitors.”

JE: Yeah. (Robert) Morgenthau was a traitor to his class. But these [current] people are not, by and large, and it takes an enormous effort for them to overcome that, and I just don’t think they can.

TCR: When you get into the Obama period, those are really the “scorched earth” chapters. But did this shift have roots in the Enron and Andersen prosecutions of the early 2000s?

JE: The point of those [Enron/Andersen] chapters is that it is the most recent high-water mark for corporate prosecutions– but it is also the beginning of the undoing. And they have success prosecuting the top executives from Enron, and they also end up prosecuting the top executives from Worldcom, Adelphia, Tyco, Global Crossing. They bring the top executives from Health South to trial. So they really do most of the big marquee corporate scandals of the age, they manage to prosecute the executives.

Prosecutors will say those were easier, more obvious crimes, or those were inevitable, or it was obvious that they were going to get the Enron guys because that was a total fraud— but in fact, I don’t agree with any of that. I don’t think it was inevitable that they were going to prosecute those people. And especially I think that getting the two heads of Enron, Ken Lay and Jeff Skilling, was extremely difficult. They had to work for years at it. They got a little lucky, they worked very hard. They had very good strategy. They didn’t have any direct evidence against them, so they had to flip people, work your way up the way you need to do it if you’re prosecuting the mob. And they did.

What happens, bizarrely, is that the lesson from the Arthur Andersen prosecution becomes unlearned, or the Department of Justice learns the entirely opposite lesson from it— which is that we should never prosecute another large company again, because we throw people out of work. There are collateral consequences–either systemic disruption of the markets (we see that later in the financial markets) or we see people being put on the street, unemployed. I don’t think that’s proper for a prosecutor to think about.

Jesse Eisinger

We don’t think of the collateral consequences of putting an embezzler in prison, or a murderer in prison, or the thief of a television in prison. But we do think about it with a corporation.

TCR: Although reformers do talk about that when it comes to street level crime, it’s one argument for reducing sentences, punishment, etc— you’re hurting families, you’re hurting society, the economy [mass incarceration].

JE: My argument is, in a nutshell, we should put fewer of a certain kind of person in prison, and more of another kind of people in prison— basically, fewer young black men and more older white men, to be overly simplistic about it.

I think putting (an executive) in prison for three to five years is something they need to refocus on. They need to go back to prosecuting individuals, and they need to seek sentences— but they shouldn’t seek draconian, insane sentences. One of the problems is that they prosecute so few individuals that they throw the book at them. They overcharge them, they invest so many resources and time into it and then they want to get some extraordinary prison sentence out of it— 18 years, 30 years.

TCR: Is that what happened when former acting Attorney General Sally Yates came in, and tried to bring the focus back to prosecuting individuals rather than just settling with companies?

JE: Yes. It was too early to see whether the Yates memo was taking effect, and now under (Attorney General Jeff) Sessions it seems highly unlikely that they’ll do that. So I’m extremely skeptical that they’ll be tougher on corporate criminals than the Obama administration, and the Obama administration was extremely light-handed. But we have to see. What’s going to happen I think in the Sessions case is that they’ll get a few low-level individuals, but they’ll not even do the corporate settlements, so that settlements will come way down.

I think the fact that we don’t prosecute criminal executives in this country undermines the sense of justice for the person on the street. I think that they see this as a rigged system, and it is a rigged system. It’s rigged in the favor of these criminals who can commit crime with impunity as long as you’re in a certain position in a corporation.

TCR: Why was there so much political fear and meddling from the front office during the Obama administration?

JE: Before we get to timidity, there are a few things to point out. One is that the resources have shifted, so that there are fewer people in the FBI who are really trained in this. The SEC was hollowed out in the second half of the Bush administration, and so it was suffering, morale was really in bad shape. Those are two sort of structural problems that the Obama administration had going into the financial crisis, that they couldn’t really do anything about. So that’s sort of step one.

Step two is after a decade of focusing on settlements, there has been an erosion of talent. Erosion of skill, especially trial skill. They do fewer trials, and this is happening across the criminal justice system. The problem with doing fewer trials, especially in the corporate white collar space, is that your skill set erodes, you become very scared of trials, they seem very difficult to do, you’re going up against defense attorneys that have done a lot of these cases and had trials, so you’re enormously intimidated by the prospect of having to persuade a jury.

So it’s not just timidity: I think they have lost the ability to prosecute these cases.

TCR: Effectively, this has cut out the public?

JE: It has cut out the public, because the public cannot see the evidence— they don’t have an airing of the wrongdoing, and public airing of wrongdoing is an enormously beneficial thing for a society. The sense that no one was held accountable, there’s no debate— fueled the rise of Donald Trump. I mean, Donald Trump talked about Goldman Sachs owning politicians.

Of course, then he installs Goldman Sachs executives in the White House and gives it over to the bankers and corporations— but he tricked his supporters into thinking that he was somehow their champion, by attacking corporations for not being held accountable.

TCR: In the book, you make a strong call for diversity in the justice department.

JE: Part of the solution is more diversity— and I don’t mean just the way the phrase is used in terms of gender diversity or racial diversity. What I’m talking about is class and geographic and professional diversity. You want to break the grip that the elite law schools have on feeding the Department of Justice’s elite offices. Go to Wisconsin, go to Minnesota. Go out of Virginia and go to Georgia tech. Go to the West Coast, go to Montana.

The other thing is that you need age diversity. There’s a culture at the Department of Justice, if you’ve worked there for six or eight years or longer, then you’ll start to be looked down upon, like you’re a “lifer.” What we should do instead is get some people who are sick and tired of corporate law at age 52, and 55, who know where all the bodies are buried, and want to spend the last ten years of their careers serving society, and doing public service. They’re not trying to burnish their resume, you want them to be sick and tired of it.

And then I think you need plaintiffs’ lawyers, you need advocates, you need consumer lawyers— you don’t just want defense lawyers, or future corporate defense lawyers to go become prosecutors. And if you break that mold, you’ll start to help the culture.

I think they need to do many more trials. They need to seek lower sentences, so that any one single trial isn’t invested with all this importance. The other thing that they need to do is to focus on individuals, and somehow allow prosecutors to work on cases that don’t come to fruition very quickly, that build slowly and quietly,

TCR: How many prosecutors, and former prosecutors, did you speak to in the course of writing this book?

JE: Probably well over a hundred— dozens and dozens.

TCR: What insight did you get into how an irascible, tough white-collar prosecutor shifts to representing corporate criminals? What did people think that they were doing? How did they describe it?

JE: Well, it’s a real mix— from people who weren’t that interested in being prosecutors, they were always interested in making a lot of money and being defense lawyers, but this was a way to burnish their resumes. There are some people on the opposite spectrum, who feel a little bit rotten about it, but they felt like they had no choice because they needed to support their family.

And also they had no choice because in their careers, they had to keep moving. They had been conditioned to always be succeeding,

TCR: When it comes to financial crime, why is ignorance of the law a defense?

JE: It’s very hard to understand. In street crime, you don’t have to prove mens rea, because you’re essentially supposed to know that drug dealing is wrong, or murder is wrong, or recklessly driving a vehicle is wrong. And so that’s all implicit— it’s part of the law, but it’s implicit. But in white collar law, and this is the most difficult thing— you have to demonstrate that… so, mens rea is not just special to white collar law, corporate law. But the problem is that when you’re dealing with accounting, or securities, things like that, you have to show that not only was the accounting wrong, but you knew it.

And it makes some sense, I think. You don’t want to throw people in prison for innocent mistakes. The problem is, it makes it so difficult to actually prove a crime that they become wary of it and they don’t even try.

 TCR: And this further insulates executives?

JE: Executives have an enormous amount of insulation, and they also get to rely on the experts— they rely on legal counsel, they rely on accountants, and you have to break that. And the way you break that is you need to pick your cases of accountants and lawyers and investment bankers who are giving advice to these executives, who turned out to be criminal. And because of that, you put these professional classes, these professions… the law, accounting, auditing, on notice. And there’s a real deterrent effect.

Victoria Mckenzie is Deputy Editor (Content) of The Crime Report. This interview has been condensed and edited for space. Readers’ comments are welcome.

from https://thecrimereport.org

Will Justice Reform Survive the Revival of ‘Tough on Crime’ Policies?

Keir Bradford-Gray, chief defender of the Defender Association of Philadelphia, believes it will. In a conversation with The Crime Report, she argues that the work of local jurisdictions and community groups in developing problem-solving courts, diversion programs and other reforms will be hard to reverse.

Philadelphia has been a focal point of U.S. justice debate in the past several years, with attention centered on court reforms. One of the leading reform voices has been Keir Bradford-Grey, chief defender of the Defender Association of Philadelphia, an independent, nonprofit corporation which has represented indigent criminal defendants since 1934. Bradford-Gray was in New York this week to speak at a conference to introduce journalists to Measures for Justice, a free data portal launched in May aimed at collecting statistical information on the justice system at the county level. Data is now available from 300 countries in six states, with more expected in coming years.

In a chat with TCR editor Stephen Handelman, Bradford-Gray explained why data remains a critical tool for understanding how the justice reform operates at the grassroots level,  and why she believes the bipartisan reform movement will continue despite the revival of “tough-on-crime” rhetoric by the current administration.

The Crime Report: Over the last few years there has been a bipartisan movement on justice reform that has gradually abandoned the old “tough on crime” metric. Do you see evidence of that in Philadelphia?

Keir Bradford-Grey:  Yes, there are incremental changes that I see every day. It has became politically popular to talk about changing the way we do things in the criminal justice system, [and it is now ] a household discussion about how the criminal justice system exacerbates issues, that nothing really changed, everything stayed the same. We talked about reform, but the practices and the policies generally stayed the same. We would pick out outliers in our system and place them in a diversion program, say we were working on reform, where 90% of the people in the system were still going through the same types of systems.

So it is really helpful that these discussions are taking place, that we are being more data-driven, more policy-driven, more research-driven. And it does help when it comes to the political forces that are trying to become re-elected, like the DAs, the mayor, all those people who are responsible for making sure that our justice system is doing what it is supposed to be doing. It creates a better platform.

TCR: Do you see the results on the street level? Do you see more public safety, more understanding, and less of a tough on crime mentality? Is it showing itself in more public safety?

KBG: That is a really good question, and that is something I think we have yet to understand. What does contribute to public safety? Every day, we see violent crime being touted on the news, but we don’t know what’s happening to those who are in our systems, or were in our system, or no longer are in our systems, who are charged with non-violent offenses.

Are they better off by leaving them alone? Or are they better off by bringing them into contact with the criminal justice system and giving them diversionary services? These are the things that I have yet to understand, and I would love for someone to do research around that.

TCR: Justice in this country is done at the retail level, whatever the feds will say, or what they’d like to see. But there’s now an overall political climate, where it’s being suggested that things are worse rather than better, that we need to be tough on crime again. Are you seeing manifestations of that in Philadelphia?

KBG:  Various jurisdictions in Pennsylvania do see that. There are people trying to pull back on the problem-solving courts, saying that we still have recidivism; so why put so much effort into problem-solving courts. And you know, problem-solving courts look at the case and the individual, and put a lot of wrap-around services for that person to go through over a period of years.

One factor influencing (the revival of tough on crime rhetoric) is the fact that people attribute certain costs associated with helping those who are more vulnerable in our society as a waste of money. Of course you can say we were doing just that by locking them up in jail without them having a real chance of rehabilitating. But that rhetoric has been moving up in some areas in Pennsylvania. Not necessarily in Philadelphia, where we have a higher urban area and understand social issues. But you can see that in areas where crime is looked at as a drain on society, and (the public) would much rather spend the money locking people up rather than giving them the tools that they need to actually rehabilitate.

TCR: But cities and towns, and state legislatures can resist. We’re seeing some evidence of pushback to the new climate in places like Wisconsin, Missouri and California for example.

KBG: Yes, that’s encouraging, especially in the larger cities, who kind of reject (President) Trump’s policies in terms of criminal justice issues– or I should say, the policies of our new Attorney General. I think what’s been happening in those cities is that a lot of work has been done by policy groups, social justice organizations, and civil rights organizations, to really show the effect of what we’re doing in our justice system. And people have taken that, and used it as more of a political platform and tools to become re-elected. So these things will stay. When you have smaller, more rural areas, that’s not the discussion.

TCR: In the area where you specialize, are we seeing real progress in fulfilling the constitutional right to defense, particularly among people who don’t have the money to pay for it?

KBG: Well, I honestly think we can do a lot more, but we are moving the needle. So I can always applaud progress

TCR: How do you measure progress?

KBG:  Narrowing the net of the justice system. If we’re looking at offenses or actions in the appropriate light, in making sure that we’re not doing one thing to one group of individuals that we are not willing to do to another. We see it with the heroin and opioid epidemic: a lot of funding, a lot of money has gone to not putting those people in custody, and not arresting them, but diverting them directly to treatment and giving them opportunities to relapse, or whatever—to crawl out of these habits. When we don’t see that for another segment of society, that’s when i think we need a lot more in the area of reform, because it’s not that we’re saying that these people are going to create an extreme danger to our communities; we’re just saying that we’d rather handle them this way– and that way has a generational effect.  It will never overcome that poverty cycle.

This is an abridged and slightly edited version of a video interview conducted By Stephen Handelman, executive editor of The Crime Report. The Measures for Justice conference for journalists mentioned above was organized by John Jay’s Center on Media, Crime and Justice, publisher of The Crime Report. A partial clip of the video is available here. Readers’ comments are welcome.

from https://thecrimereport.org

A Police Chief Reflects: ‘Handcuffs Are Not the Solution’

In his forthcoming book, former Dallas Chief David Brown ponders the lessons learned over a 33-year career in law enforcement, capped by the July 2016 shooting tragedy that left five Dallas officers dead. In a chat with TCR, he discusses the need to change the “culture of policing” in order to bridge the divide between communities and law enforcement around the country.

Many  people see today’s tense debate over policing in simplistic terms: a problem of “us and them.” Until he retired last year, Dallas Police Chief David Brown has been at the center of the debate, winning national admiration for his actions during and after the July 7, 2016 tragedy in which a lone sniper killed five Dallas police officers and left nine injured.

At the height of that tragedy, which represented the biggest loss of life for law enforcement since 9/11, Brown made clear that community residents and police shared the goal of public safety. The “divisiveness between police and citizens” must end, he said then.

Chief Brown has expanded on that point in his forthcoming book, Called To Rise, where he draws on his 33-year-career in law enforcement to develop a vision for the next generation of policing, and opens a window into the technical, logistical and often traumatic realities of a job that few civilians understand.

In a conversation with TCR’s Isidoro Rodriguez, Brown discussed why he believes the “tough-on-crime” approach doesn’t work, why modern police chiefs sometimes have to risk their jobs to provide leadership, and how his own personal tragedy influenced his approach to policing.

The Crime Report: One of the things I really enjoyed about this book was your candor. Should there be more transparency between law enforcement and communities?

David Brown: I think that’s really one of the major things in the book for me. I am a very private person, but I felt the urgency to tell the story and reveal my personal life. It’s almost to propose how police should become more transparent, more revealing, more open, more willing to discuss all the flaws, [as well as] the good stuff that we do, and the challenges that we face, so that people can really make their own assessment. We need more information, rather than having just snapshots of information.

TCR: What prevents that type of transparency?

 DB:  You’re first fighting an internal debate with the culture of policing, because it’s just been so tried and true to be kind of secret. Not necessarily in a villainous way, but you convince yourself that if you tell the public everything, it might jeopardize a case or an outcome, it might slant a jury pool, or it just might expose our flaws. At the same time, because I’m an inner-city kid, Dallas is my home town, I have a real sense of obligation to the community, to be more of a public servant and community-policing advocate, and to be as revealing and transparent as I can. I truly understand the community’s sentiments and how the issue is wrapped in race and inequality. I really understand, as a Black American male, the community concerns, and I fully understand the policing concerns.

TCR: You describe in the book how, as a young officer, you experienced an initial reticence towards community policing and its supposed benefits. Now you’re an advocate. What changed your mind?

 DB:  I understand how people may not get it initially, including people who are policy makers. I [came] into the profession without a full range of knowledge and experience on what the shortcomings of traditional policing does to the community. I fully understand, for example, Attorney General Jeff Sessions wanting to revert (to tough sentencing guidelines). He doesn’t have that experience, so it just seems like the way to fight crime is to just lock people up. We know through research and experience that we weren’t any safer when we are in a “lock them up, tough-on-crime culture.” But human nature sometimes drives us to make decisions not based on facts. People generally sense that if you put a bad guy in jail, they’ll be safer, when that is absolutely not the case.

You have to find a way to peel back the layers, and find root causes, and mitigate the root causes where they occur, whether that’s mental illness, drug addiction, job training, opportunities in the community, or economic development. You have to find those root causes to have a really clean sense of what would make us safer, what impacts these communities. We criminalize poverty, we criminalize mental illness, we criminalize drug addiction, and those are treatable things that we can resolve with policy. Handcuffs are not the solution.

TCR: What do you say to skeptics who feel that community policing doesn’t work, that it actually detracts from real police work and doesn’t yield results?

DB: That was my life. Our police unions wanted to fire me because what I believed differed from their beliefs. You’re not going to convince people entrenched in their beliefs. Police leaders have to be principled; they have to understand what the data shows, what the impact on the community is, and not just be there to appease the beat cop. They have to be able to put their job on the line (by imposing their) will on the police culture.

Many police are stuck in the idea “let’s put them all in jail and let God sort them out.” But the realities are that we don’t have enough jail beds to arrest our way out of crime. There’s bipartisan support for the idea that mass incarceration was not effective. But you get political and you move away from what we all know based on facts. That’s where leadership comes into play, not so much what you say, but how you lead.

TCR:   Many police departments across the country, including New York City, are rolling out new training programs for recruits and veteran officers. Is that part of the solution to developing more community-conscious policing? 

DB:  The history of policing is you don’t train enough because you don’t have the time. You have to commit the time of your department, which often means more dollars towards the police department and more officers, so that you can have the basic level of staffing needed to have enough people to both train and answer the demands of the job. You have to be committed to more training. [Until recently] it’s been training when you can, not necessarily as a prerequisite of the job.

Secondly, the type of training is also important. We are an increasingly diverse country and our departments are increasingly less diverse. It’s more and more difficult to recruit people of color. So what you have to do is immerse your officers in different cultures. That is a template for community policing: communicating and slowing things down, rather than rushing in and making it an athletic event, where you think you have to do things right away. That will make everyone safer. Don’t get into quick-draw interactions where the fastest to the trigger survives. That won’t always be in your favor.

TCR: You write that as a young officer dealing with the traumas of the job, it was sometimes necessary roll with the punches, to suffer in silence. Are there better ways for police officers to handle stress?

DB: There’s a lot of discussion about this particular area of policing, which I would describe it as well-being. Police need coping mechanisms in dealing with traumatic experiences, whether it’s investigating homicides, suicides, tragic deaths like car wrecks, or the adrenaline of chasing a suspect one minute and the next minute you’re at a very low frequency interaction. You may be involved in a life-or-death shooting and then you’re expected to get right back to work and act normal.

Psychology and psychiatry (suggest) that’s not the healthiest type of emotional environment. You need to decompress your emotions so that your reactions are not on a video of you not doing what society expects you to do. If there’s a police-involved shooting where an officer acts out of character, and doesn’t have any previous misconduct, we all wonder why. But it may point to a problem with the well-being of the officer, their emotional health. It’s not an excuse for misconduct, but it may be a reason for it. And if we diagnose it correctly, the outcome is that officers are safer and citizens are safer.

TCR: The idea that police are human too can be a hard sell to people in some communities.

 DB:  Police are very human and fragile and they have the same reactions you would. Even though they have specialized training, it doesn’t take away their frailty or humanity. That’s why I tell my story. I’m very revealing on the effects of the job on me and my family, and all the tragedy that I’ve dealt with. I want to un-layer the superman/superwoman characterization of police officers because this is a false narrative. Many times, it’s police officers who believe in this idea and take it on, and then the public believes, and they take it on.

The effect of trying to be that character has been detrimental to the profession and detrimental to the public. People need to know that it was not just a white officer who did something that shocked us. This was a human being likely in emotional crisis. That’s not to defend explicit reactions and bias in officers who shouldn’t be cops because they have a character flaw. These are the officers who make a mistake because of some of these other traumatic reasons. Rather than making excuses, let’s try to understand it so we can recruit for it, treat it, diagnose it, and keep these officers from making those kinds of mistakes.

TCR: Your own personal brush with trauma and tragedy was the catalyst for your position on mental health in this country. You lost a son, a brother and a former partner to violenceHow should policing  evolve to meet the challenge of dealing with emotionally disturbed and mentally ill individuals?

 DB: The untreated mentally ill are a driving force for the crisis in our country. The active-shooter dynamic is mental health untreated and unrecognized. It is the mentally ill who get access to a high powered rifle. In Sandy Hook, in Dallas, this was the untreated mentally ill. It’s the scourge of our country. We can make ourselves safer if we were able to get funding and policies that support treatment for the mentally ill.

Because I experienced tragedy, I feel strongly that I need to be an advocate and marry myself to other advocates who see how this has driven our country in the wrong direction when it comes to gun safety, mental health treatment, community policing policy, and our prisons. Our prisons have to be some of the largest mental health facilities in the country. That’s not who we are. We can’t criminalize mental illness. It’s neither effective nor is it making us safer. This is a have-to-do moment and I hope the discussions on my upcoming book tour can reveal some of that and maybe push some policy makers to move the bar up a little bit further in this area.

TCR: You address the issue of police militarization in your book. For many people that brings up images of military-grade hardware at protests like those after the shooting in Ferguson, Mo. Is that what American policing should be?

DB: Using Ferguson as an example, I think everyone in the leadership community of policing sees the militarization of that department, at that particular protest, as inappropriate across the board. Inappropriate use of tear gas, inappropriate use of sniper rifles, inappropriate use of the equipment. Everyone sees that, but policing has been painted with a broad brush, as if everyone does that, and that’s just not accurate.

We all see that when we’re rescuing people from an active shooter with a high-powered rifle you need an armored car to rescue people. If we’re running drug warrants at very hazardous locations, and the drug dealers have high-powered rifles, we need extra ballistic protection because those dealers are likely to kill us to protect their dope and money. I just like to talk in more specific rather than broad terms when it comes to militarization and the equipment needed to rescue officers and rescue citizens, versus the images from Ferguson and other protests where I can specifically say that’s inappropriate.

TCR: You describe how, as chief, you were constantly racing to get ahead of whatever story the press was pushing. Does coverage of policing need to change?

DB: I think the media is just responding to the public’s shortened attention spans. They’re trying to be quick and short, and trying to hit the highlights. But I think the media can broaden or balance their coverage and still meet the public’s demands for more information. Instead of looping negative video for an entire news cycle, they could loop the positive interactions police are having. But no network shows do that. You never see a positive, life-saving moment where an officer dives into the water to rescue a baby, risks his life in a burning house to rescue a family.

There’s hardly ever a panel discussion or town-hall format for positivity in the policing environment. You never see communities in a town-hall setting talking about why they love their cops. I just reject the idea that bad news sells. People say this happens because people want to hear bad news. But the media can get high ratings if they tell a balanced story in a short format. They just need to make the effort to do it.

TCR: A recent poll revealed widespread dissatisfaction among officers in the NYPD. Around the country, there has been an increase in resignations and a decrease in applications. Is this a trend that worries you?

 DB: You get what you pay for in attitude, performance and quality. I wish our cops could throw 100-mile-an hour fastballs. I wish they had a 40-inch vertical leap. I wish they could throw the ball 70 yards, because that is where our money goes. What we prefer is what the public is willing to pay for. Cops are underpaid, but city budgets don’t compensate them. And there’s a pension crisis.

It’s just not a stable environment for compensation. Millennials see this. It’s really difficult to recruit into this profession, not only due to (inadequate) compensation, but because when they do a good job it’s not appreciated in the way that, for example, sports entertainment is. Between the two, which is more important to society?  The best players in sports entertainment are appreciated and compensated. The best cops in this country aren’t appreciated, and they’re compensated no better than the worst cops.

When you see a cop you ought to say thank you for their service and sacrifice. You ought to advocate to your local representatives in your city to pay cops more. You’re highly likely to have a better-quality police officer as a result. You’re saying how you feel about them. When the one percent or two percent of cops make a mistake, they’re battered, (but) when cops do a good job they’re not treated any differently in the public space.

That’s why there’s such high dissatisfaction in this profession and why it’s so difficult to recruit and retain cops. It’s reached a peak, a boiling point, of cops reconsidering whether this is the type of profession that’s healthy for them, and whether they’re going to be compensated in the ways that the job demands.

TCR:  Racial tensions are a big factor in the debate about policing today. How can these tensions be addressed?

DB: It’s a two-sided coin, and it’s complex. The protesters will never create change in the ways they want. If you look at our history, it’s tells a consistent story that protest alone doesn’t create significant change. It was activism, participation, voting, becoming public servants, running for public office, getting elected, being a part of the government policy making, and full engagement in our democracy. That’s what they’re missing: participation. That’s what our democracy requires to create change.

On the policing side, until local democracies push the agenda for police transformation it won’t happen. That includes the policing leadership, the local aldermen, the city councilmen, the city managers, and mayors who are elected as a representative government. You can’t have one without the other. Significant change has to come through the local democracy, and the way we vote on the local level right now is not enough to create change. Only 10%-15% vote for aldermen, for mayors, for councilmen; that leaves 85%-90%, particularly in communities of color, sitting on the sidelines. They’re dissatisfied but they’re not taking the steps to fully participate through voting and becoming part of policy-making to create change.

That is what Black Lives Matter and the policing culture are missing. They can’t come together without that full participation in our democracy. You want something done right, you have to do it yourself.

This conversation has been condensed and edited. Chief  Brown’s book, “Called to Rise, written with Michelle Burford, with be published tomorrow. Isidoro Rodriguez is a New York-based staff writer for The Crime Report, and is studying for a degree at John Jay College of Criminal Justice. He welcomes comments from readers.

from https://thecrimereport.org

Do All Violent Offenders Need Long Prison Terms?

Fordham law professor John Pfaff says the country needs to re-examine the way “politics and punishment interact.” In part 2 of an extended conversation with TCR about his book, “Locked In,” Pfaff focuses on what he believes is local prosecutors’ aggressively punitive approach to people convicted of violence.

Fordham law professor John Pfaff argues in his counterintuitive new book, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform (Basic Books), that the unbridled discretion of prosecuting attorneys has been largely overlooked as a key to America’s prison population boom.

In the second part of a Q&A with TCR Contributing Editor David J. Krajicek, Pfaff, who trained as an economist at the University of Chicago, argues that the punitive approach to violent offenders favored by tough-on-crime politicians and prosecutors needs re-thinking if we want to shrink the number of Americans behind bars.

 The Crime Report: Explain how prosecutors, whom you describe as “the engines driving mass incarceration,” were responsible for the firehose of prison admissions, even as crime was declining.

John Pfaff. Photo by Chris Taggart (courtesy Fordham University)

John Pfaff: My findings come from a study of 34 states over the years 1994-2008. Crime falls over this time period, and serious crime falls by a lot. Arrests fall too. So fewer people are entering the criminal justice system, yet the number of felony cases filed in state court rises sharply. In my data, the probability that an arrest results in a felony charge almost doubles.

That’s the only change.

Once a charge is filed, the probability that someone is admitted to prison doesn’t change, nor does the time spent in prison if admitted. Prosecutors filing more felonies is the primary engine of prison growth.

I have no clear idea why this happened, because we have almost no data on prosecutors. But I have a few theories with some scattered empirical support. Right now, I think the most significant factor is staffing. Two big changes happened. First, between 1974 and 2008, the percent of counties with a full-time prosecutor rose from 45 percent to 85 percent. Second, from 1974 to 1990, as crime rose steeply, the number of assistant prosecutors nationwide rose by 3,000, from 17,000 to 20,000. But from 1990 to 2008, as crime fell dramatically, we hired 10,000 more assistant prosecutors, bringing the total to 30,000.

So rural and suburban counties professionalized, and urban areas massively ramped up staffing as crime fell. I find no evidence that an individual prosecutor is harsher in 2008 than in 1974; it’s just that we have so many more of them, and they need to prosecute to justify their jobs. We arrest 12 million people per year. There are always people for prosecutors to prosecute.

There are other possibilities too. Perhaps elected district attorneys have grander political ambitions (attorney general, governor, senator) and see toughness as a campaign tactic. Police may be making better arrests that are easier to prosecute, either because they are better trained or we have more DNA, video, and other compelling evidence. Maybe longer sentences have given prosecutors more leverage during the plea bargain process even if people aren’t actually serving more time in the end (because they take the plea, just faster than before).

Figuring out empirically how prosecutor’s offices operate is an area crying out for more research (and for more—much more—data).

TCR: You say you had an “aha moment” while studying state court felony filings.

 Pfaff: Almost every study examining where prison growth occurred looked at just four stages: changes in crime; in arrests per crime; in prison admissions per arrest; and in time served per admission. The admissions-per-arrest piece always bothered me because it implicated so many actors. Was it a change in policing, in charging, in sentencing? So I assumed there had to be data of some sort on prosecutors out there.

Eventually I came across a data-set on felony cases filed in state courts compiled by the National Center on State Courts. (It’s telling that my data on prosecutors came from the court system: Prosecutors provide almost no data to the public, but they can’t avoid the disclosure that comes once the case hits court.)

By this point I had already demonstrated that time served wasn’t driving prison growth, but I fully expected that the rise in admissions was being shaped strongly by a lot of factors—arrests, filings, and chance of admission. So I was completely surprised when I included the filing data, and the impact of everything else basically melted away. What made it particularly striking is that I wasn’t doing any fancy modeling…This was all simple algebra, and it showed that filings really were the major force. I realized right away that it had some major implications for how we think about prison growth.

 TCR: Explain the concept of prison admissions vs. prison population and why you see that as a key overlooked data point.

Pfaff: My concern is this: Prison is a remarkably costly and inefficient way to fight crime, so our goal should be to scale back the number of people who come into contact with prisons altogether—but that’s the number admitted, not the number serving on any given day. And what I discovered is that several states that cut their total prison population were admitting more people. So what looked like a success—“we have fewer people in prison”—was in many ways masking a failure, since more people and their families and communities were incurring the costs of exposure to incarceration.

Think of it this way: A state admits two people to prison each year, and each serves two years in prison. Every year there are four people in prison–two serving their first year and two serving their second. Then the state changes its policy: Everyone serves only one year in prison. But prosecutors now act tougher and send three people to prison each year. Now the prison population is three, each serving a one-year term.

So the prison population falls from four to three, but the number admitted rises from two to three, so more people come in contact with prisons, which imposes all sorts of excessive costs.

I initially sketched this out as a thought experiment, but I discovered that this was actually happening in about 10 states. We talk about trying to shrink prison populations, but we should really be focused on shrinking the number of people who have been prisoners. Somewhat counterintuitively, these are not always synonymous ideas.

TCR: Explain the implications as we emphasize parole reforms rather than crimping prison intake.

Pfaff: The median time to release for someone convicted of a drug or property crime is one year. The median time for someone convicted of violence is four years. People don’t spend huge amounts of time in prison. Parole reform is a good idea, but my guess is that its impact is going to be disappointing. It would be far more effective to divert a lot of unnecessary admissions.

Almost all parole reforms are restricted to people convicted of non-violent offenses. Yet those reforms would have a potentially important impact for those serving time for violent crime—and that’s an area we have long refused to confront.

TCR: Like many others, you say that dealing with the 700,000 violent offenders in state prisons is a linchpin of mass incarceration reform. You also note the perilous politics involved. Can those two things be squared?

Pfaff:  I think so. One intriguing, rarely discussed aspect of the recent prison population decline is that between 2010 and 2013 the number of people in prison for violence fell by over 30,000. Now it’s possible that much of that reduction occurred in California. But still: We cut back on incarcerating people for violence, and there was no political backlash.

There are real political challenges, which is one reason why I push so much against the “standard story” conventional wisdom of mass incarceration. By constantly overemphasizing the importance of non-violent drug offenders to prison growth, reformers have convinced Americans that they can cut the prison population substantially without having to make any really tough tradeoffs, or without having to look carefully at the way politics and punishment interact with each other. But we have to make these tradeoffs, and we need to confront them more directly and openly and honestly—and find politicians willing to take principled risks. It’s not going to be an easy process, and there’s no guarantee that we’ll succeed.

TCR: You criticize the country’s Balkanized set of city, county, state and federal criminal justice systems as “a swirling mess of somewhat antagonistic agencies.” How might organizing the Hydra help?

 Pfaff: We first need to appreciate how often we divorce costs from benefits in criminal justice, and then we need to look for ways to make actors focus on both. Prosecutors are elected at the county level but send people to state-funded prisons. Cities might not adopt efficient police reforms often enough because much of the savings will come through reduced prison populations: cities bear the cost, states the benefit. Problems exist even within jurisdictions: safer, wealthier, whiter suburbs play a major role in electing prosecutors who enforce the law more often in poorer, more minority urban cores. The suburbanites feel the benefits of aggressive enforcement but few if any of the costs, so there is less political cost to being needlessly aggressive.

There are a few efforts underway to address these disconnects, but not many. The fledging Justice Reinvestment Initiative, for example, tries to encourage local innovation by providing a vehicle for the state government to share any savings from prison reductions that come from local policy improvements. I think some reforms will require us to devolve more decisions to local governments and others to centralize more at the state level, but the current arrangement is almost entirely incoherent and contributes greatly to the injustices that we see every day.

TCR: We have begun to view drug offenders not merely as lawbreakers but as flawed citizens who need help. Is this a key to broad prison reform: to regard violent offenders through that same social science prism?

Pfaff: Yes, exactly. It’s much harder in the context of violence, of course, because our desire for vengeance is much greater when there is an identifiable victim. In many ways, I think most takes I’ve seen on the conservative push for criminal justice reform focus on the wrong part of that movement. Most accounts tend to look at the efficiency/cost-cutting side (prison as an excessive expense) or the libertarian side (the state impeding personal liberty, particularly when it comes to drugs).

To me, the group with the most promise to really push for deep reforms is the evangelical branch, which favors reform because it genuinely believes in redemption. They seem like the ones best positioned to argue that even people who commit serious crimes remain, well, people.

There are reasons to be cautiously hopeful. A recent large-scale survey found that crime victims tend to be less punitive and more in favor of restorative justice approaches than the average person. This is because victims often come from the high crime areas and have a much more nuanced view of what it means to be both a victim and a victimizer.

That is why I favor increased localism: Those closest to crime are more likely to have more sophisticated takes. That doesn’t guarantee local decision-making will necessarily lead to less punitiveness. (As recent work has shown, some of the most punitive groups in the 1960s and 1970s were African-American communities that bore the brunt of the rise in crime.) But I believe it will lead to more careful approaches to crime. A prominent conservative judge, Richard Posner, just wrote in an opinion that we need to think differently about how we punish people convicted of violence. I think the conversation is starting to shift as we slowly begin to view violence in a more sophisticated way.

 David J. Krajicek (@djkrajicek) is a contributing editor of The Crime Report. He welcomes readers’ comments. Part 1 of this Q&A is available  here.

from https://thecrimereport.org

Measures for Justice: ‘America, How Are We Doing?’

A free data portal to be launched next week will provide the first–ever window into how justice is done (or not done) at the county level. Founder Amy Bach tells TCR how it can be used by anyone who intersects with the criminal justice system, from prosecutors and journalists to ordinary Americans.

For the past six years, Measures for Justice has been hard at work on a dream tool for policy analysts, journalists and criminal justice activists. The tool, a free criminal justice data portal that so far covers over 300 counties in six states—with more on the way—will be launched next week. Lead funders for the project include the Laura and John Arnold Foundation, Google.org and the MacArthur Foundation.

The founder and director is Amy Bach, a member of the New York Bar and a journalist who has written for The Nation, The American Lawyer and New York Magazine, among other publications.  She  chats with TCR Deputy Editor Victoria Mckenzie about how her journalism background led to creating the nation’s first ambitious attempt to gather county-level data on the criminal justice system, how journalists and policymakers can use it, and why she believes it will make a difference in the lives of ordinary Americans.

The Crime Report: How did your career in journalism lead to an enormous data collection project?

Amy Bach: In 2009, I wrote a book called Ordinary Injustice; How America Holds Court. I sat in many courtrooms across America, and I learned how it was possible for people in the justice system who have the very best intentions to turn a blind eye to enormous problems, because they couldn’t see what was going on. It’s not their fault— they don’t have data. People can’t compare themselves to a county next door, they have no idea how they’re doing. The conclusion of the book says we have to find a way to measure justice, and put it in a form so that everyone can see it.

Every civic institution uses data to monitor performance, right? There are basic measures for hospitals, like mortality rates; in schools, you’ve got test scores. And all of this data can be accessed by anyone. But people in the system in criminal justice don’t have those tools. If you wanted to assess your physical health– what’s your BMI? What’s your heart rate, what’s your blood pressure? Together, these give us a sense of where we need to focus our attention.

Amy Bach

The same applies to all of the work in the criminal justice system. We need the criminal justice system measures to get a picture of how various [local] criminal justice systems are working. There are more than 3,000 counties in America, and each one has its own criminal justice system. Right now, we focus on whatever’s on the front page: if there are shootings in Chicago, if there are bail problems in Houston. But is that really what’s going on in America? We don’t know, because we haven’t had measures to go across counties and we haven’t had the data.

We’re non-partisan, non-profit, and we’re dedicated to bringing transparency to criminal justice, to enable more informed discussions and decision-making. And these are the things that are really different about us: we do the whole system, from arrests to post-conviction, and we do it on the county level.

All the performance measures go toward one of three neutral goals: public safety, fiscal responsibility and fair process. So the idea is if you’re a money person, there’s something for you in fiscal responsibility. if you’re a public safety person, if you don’t want someone hurting your neighborhood, you get that. If you believe that people should be treated based on due process no matter what the color of your skin, there are fair process measures.

What’s revolutionary about our work is that we’re bringing this to the county level for the first time.

TCR: How did you identify the measures that you’ve chosen?

AB: Measures for Justice was founded in 2011, and the first thing that we did was bring together a “Data Council.” These were people who are experts in local measurement in the United States. They came to our offices in Rochester, NY, and we ended up hiring most of [them]  after we got some funding, and then we created two more councils.

The councils have some of the best people in the US— for example, we’ve got the two former heads of the Bureau of Justice Statistics, Jim Lynch and Bill Sabol. We’ve got the former head of the National Institute of Justice, and Michael Jacobson, who’s head of the Institute for State and Local Governance, which manages the Macarthur Safety and Justice Challenge. They’ve gone through many, many versions of the measures to figure out what is a valid measure…

TCR: Did you have a wish list, or did you begin with data that was possible to find?

AB: The very first outside council came up with a group of dream measures. Then, we tried to find a county that we could get data for against the measures…so we started in Milwaukee County, because one of the members of our data council was John Chisholm, the district attorney.  We started collecting all of the available data— prosecutor data, public defender data—and then we saw that there was a state database with something called the administrative office of the court, and we got that too. In that database, we found data for about 70% of our measures—so instead of measuring Milwaukee, we measured 72 counties.

Then we created more measures, and eliminating others, as we tried to figure out what was valid and possible. We went to every county in Wisconsin, and tried to get prosecutor and public defender and sheriffs’ data. Then we keep on showing it to people in the state, in the counties, saying “here’s some analysis, does this make sense to you?”

We showed it prosecutors, public defenders, representatives of the courts, judges. We also were funded by the Department of Justice to do a stakeholder initiative, where we went to five counties and showed them their data, and got feedback and input to make the measures better. Then, we had many other people who reviewed the portal over and over again to make sure everything was right. And if something wasn’t right, we eliminated it or qualified it, or refined it.

TCR: is this meant to be a policy tool? Who is it meant for, and how do you expect people to use the portal?

AB: It’s meant for everyone, and that’s really important. It’s meant for insiders, people who work in the system for example; [But it’s also] meant for people who want to write about the justice system, or for anybody who is a citizen [and] has felt that they want to understand their justice system more, or has felt that there is something that needs to be improved. They can look now and see patterns.

We went to one prosecutor in Winnebago County, Wisconsin, and he noticed when we showed him his data that poor people were failing to pay low bail at a much higher rate than rich people. And this might seem intuitive, but he figured out that poor people were being detained simply because they were poor, and not because they were a flight risk, or [endangering] public safety.

So he decided that poor defendants who were jailed for failing to pay low bail over the weekend or holidays didn’t need a prosecutor to present his or her probable cause hearing, which means judges can free these defendants if they want much earlier. The result is that the county treats defendants more equitably while saving itself $64,000.

There will be many, many stories of people using our data to notice things. And sometimes they’re doing things well: one prosecutor in Utah noticed that his prosecutors were reducing charges less often than the state average, and that they had fewer dismissed cases than the state average. The portal allowed him to verify that his team was making good decisions up front. That’s a huge goal.

There’s a story in [my] book about a public defender who pleads 48 people guilty in a day, and thinks he’s doing a great job because speed equals success. Is that really the right measure, or is there another measure? That’s what Measures for Justice is about.

TCR: What’s been surprising about this process?

AB: I think that prosecutors are going to be our early adapters. They enjoy playing with the data, they’re creative, gregarious, and want to do better. We didn’t realize that when we started out. If you are a prosecutor, and you see an issue through our data, you can always go to your community and say, look—there was no way for me to know this before, [and] here’s what I’m going to do about it. And that’s the idea of Measures for Justice.

TCR: What’s an example of some measures that is still not possible to get?

AB: What’s the … [the number of] people held for failing to pay low bail, or [those who have had charges reduced], or cases dismissed? Another important thing to know is that we have filters. You scroll across the page, and you pick some counties— you can pick counties in a state, or among states– so you could compare Raleigh to Milwaukee to Seattle. Then, you pick a measure: for instance, people held on bail for under $500. And then you can filter the measure by race:  white vs. non-white, sex, indigent vs. non-indigent, age, and type of attorney, type of crime, or level of crime.

TCR: Everything that you’re saying about how the justice system is blind due to lack of data seems to apply equally to the media.

AB: Now, journalists will have a way to look across the entire state, tell stories, and find stories that they never could have before. In order to do this project, you have to have enormous experience in criminal justice data, and substantial resources, [and now] we’re bringing those resources to everybody— whether you’re a journalist, or somebody who works in the community, or someone who is a concerned citizen or an advocate.

Imagine that your whole life depends on this. Imagine that you’ve got a family, you’ve got kids at home, and you’ve been arrested for a misdemeanor. And it’s your first crime, you haven’t had any previous arrests in the past 3 years, and you think that all the white people, or people with means get diverted, but you’re not being diverted. And you think there’s something wrong, but you can’t prove it. How could you possibly prove the disparity?

Victoria Mckenzie

Now there’s a single measure where you can. and not only can you do it in your county, you can do it in the county next door, the county above you, the county to the south, the county to the east, and you can look across the whole state. and if you think it’s messed up in your state, you can compare it to another state.  It’s the first time that you can be able to reach into the heart of America and ask, “How are we doing?”

 Editors’ Note:  The Center on Media, Crime and Justice at John Jay College, TCR’s publisher, is holding a special symposium next month (June 12-13) to train journalists in using the portal . Interested reporters can apply to attend through this link. Space is limited.

 Victoria Mckenzie is deputy editor of The Crime Report. TCR will make the portal available online via Measures for Justice after the launch. Readers’ comments are welcome.

from https://thecrimereport.org

‘Once They See You’re More Than a Badge, Things Change’

A young police recruit talks with The Crime Report about what it feels like to walk a beat for the first time under the NYPD’s new training program. Strangest thing to get used to: all those cellphone cameras.

As early as 2012, any rookie  officer recently graduated from the New York Police Department (NYPD) police academy would be assigned to the most challenged precincts in the city, placed in the most challenged neighborhoods, and expected to perform his or her duties with a minimum of  assistance or support.

Things have changed.

As part of the  Academy’s recent overhaul of  training, and the NYPD’s new  focus on  “neighborhood policing,” which seeks to bridge the divide between police and the communities they patrol by emphasizing communication and de-escalation, recruits at the academy now go through  a field training program that provides an early glimpse of their profession’s challenges.

The field training assigns recruits to a precinct during the fifth month of their six-month training.  Guided by a veteran officer, each recruit is taken on patrol, taught to engage with the community, and learns the daily routine of policing.

Field training is intended to give them an early test of the responsibilities and duties that they would otherwise only learn about through classroom lectures or improvised scenario-based training.

The Crime Report, as part of its ongoing series on the academy’s new training initiative, was given the opportunity to speak with Daniel Bavuso on his field training experience just before he graduated from the Academy last month. In a conversation with TCR staffer Isidoro Rodriguez, he described how the public reacted to him, and what the new, less-confrontational style of policing taught by the NYPD academy  feels like to a young officer at the start of his career.

The Crime Report: What were your first impressions of the field-training experience?

Daniel Bavuso: It was really cool.  Everybody was really, really helpful.  (At first) you walk into precincts and you feel like you belong everywhere but there.  It’s weird.

TCR: What did the training involve?

DB: We worked with a different [officer] most every day, in different parts of the precinct.   One day we worked in domestic violence; [on another]  it was in crime analysis; and on another,  it was with the detective squad.  It was all different people just to see how everything works and flows behind the scenes. That’s only for the three weeks we’re out on field training.  Once we  graduate officially, then we’ll be assigned to a steady Field Training Officer.

TCR: How was patrol?

DB: We went out on patrol a bunch of times.  My precinct was  the 10th [in Lower Manhattan], so they’re talking about neighborhood policing.    You’re supposed go out and meet people, and they really, really encourage you to do that.  Go out and talk to people—and get their names.  They want you to be friendly and not like you’re just there to work.  Let’s go talk to the shop owner, talk to the kid going by.

TCR: In going around and interacting with people, having conversations, what type of reception did you receive?

DB: For example, we went to a job fair at a halfway house.  The kids, from ages 16-21,  obviously had a hard life.  We talked to them essentially about their goals and how they can reach them with steps in the right direction.  We sat down with these kids and it was one-on-one.  I sat down with a  girl who told me she wanted to be a nurse; another wanted to go to  culinary school. There is a big divide between the people and the police department, but this is such a great way to bridge the gap.

At first it’s scary (for them)—people see you and your uniform, your badge, and a gun..  Once they see that you’re a person, with a face—-that you’re more than just the uniform, [things change]; it’s really positive.

TCR: How big was the area you had to patrol?

DB: It’s broken down into three sectors:  Adam, Boy and Charlie.  Some days you would be assigned a different sector.  It’s a pretty decent size, but with neighborhood policing, that’s what you do.  You aren’t responding to as many [calls]; you’re focusing on meeting the people.  The sectors are this size so you’re not sitting on a street corner, you’re going to different areas.  They don’t really want you to park on a street corner and sit there or just drive around, you’re supposed to get out and walk.

TCR: Because you are not a police officer, but training in the field, what happens if a situation occurs?

DB: We have the power of arrest, but [when I did the training) I still had a month to go in the academy.  If I was to arrest somebody, they’d have to pull me out of the academy to go to court.  So, if something happened we’d help out, but we don’t take responsibility for the arrest.  There was a kid I was with, he put the cuffs on but it wasn’t his arrest.

TCR: What was it like to see an arrest from this new perspective?

DB: What I thought was the coolest thing, it’s the stuff you don’t know.  Behind the scenes. This guy was arrested and he’s in the holding cell waiting to get transported to central booking.  And he was sick.  The officer went out and bought him a drink, a sandwich, and a bag of chips.  While he was in the holding cell, the cop went out and bought him food.  It was  cool how they treated people the right way, and you’d never see that otherwise.

TCR: One of the aspects of the scenario training at the academy was the emphasis placed on bystanders and video recording.  How true-to-life were the simulations with regards to how people reacted to your presence and to seeing an arrest?

DB: A ton.  I worked in Manhattan and everywhere you go people are recording you.  Even when we weren’t talking to someone, or making an arrest, even when we were just  walking down the street, people would stop and take pictures and record us.  Just walking down the street, not even interacting with anyone.  But, it’s the NYPD.  Sometimes they just like the department, sometimes they’re trying to get us doing something,

It’s not a big deal. That’s your right, you’re allowed to record, you’re allowed to stand and watch.  Go for it.

TCR: What did you gain from the three weeks of field training?

DB: The academy itself is great. If you’re a lawyer, you could read the penal law for your whole life, but once you’re in the courtroom and you have to persuade a jury to get on your side, it’s gonna be hard.  You have to be a people person.  [It’s the same difference with cops.] You can’t just yell, “Sir! Stop doing what you’re doing! Put your hands behind your back!”

You have to talk to people, be human, and it’s real easy to get lost in that kind of attitude when you’re reading these penal laws and procedures.  You want to be a person, you don’t want to be a robot, so doing field training and learning how to deal with every kind of situation is really beneficial.

Isidoro Rodriguez is a staff intern with The Crime Report and a graduate student at John Jay College of Criminal Justice. This is the third in his continuing series examining NYPD training. Readers’comments are welcome.

from https://thecrimereport.org

The Triumph of the Crime Reporter

What’s the most important crime story of the last century? You can choose from the collection of the 100 best put together by The New York Times from its archives, in a celebration of the often-overlooked chroniclers of murder and mayhem: the men and women for whom crime is a daily beat. Kevin Flynn, the anthology’s editor, reveals the reasons for his choices in a conversation with The Crime Report.

Crime has been an endlessly fascinating subject long before TV police procedurals, Twitter and Facebook.  But why are some murders more compelling than others? One reason: the special skills of the crime reporter, who can weave a poignant, unforgettable tale out of the grisliest details—and sometimes find clues that even gimlet-eyed detectives miss.

The best crime and justice writers today earn journalism’s top honors for their ability to see patterns and significance in reams of data—as demonstrated by the Pulitzer Prize for Public Service  awarded this week to reporters from The New York Daily News and ProPublica for their series on the New York Police Department’s widespread abuse of a decades-old law to force people from their homes and businesses over alleged illegal activity. The hardboiled reporters of earlier decades may not have had laptops on their desks—if they had desks—but they were equally committed to following the facts wherever they led.

Financier Bernie Madoff leaves New York courtroom. Photo courtesy Sterling Publishing Co., Inc by Damon Winter for The New York Times.

The recently released New York Times  Book of Crime: More Than 166 Years of Covering the Beat is a celebration of their craft—and a reminder of why journalism is often the first draft of history. The newspaper picked about 100 of the most vivid, dramatic and significant stories from the thousands of items in its archives dating from 1851, from President Lincoln’s assassination to the arrest of Bernie Madoff.

Choosing them wasn’t easy, admits Kevin Flynn, editor of the anthology, and a  prizewinning crime reporter in his own right.  A writer and editor for 20 years at The Times, he was the police bureau chief from 1998-2002, and his work helped earn the paper the 2009 Pulitzer Prize, among other awards. Flynn co-wrote with Jim Dwyer 102 Minutes: The Unforgettable Story of the Fight to Survive Inside the Twin Towers.

In a conversation with Nancy Bilyeau, The Crime Report’s Deputy Editor, he explains why an article about prisons is the oldest article in the book, why New York crime reporters’ legendary hangout is called ‘The Shack,” and what makes a great “rewrite man”— the unsung hero of any newsroom’s crime coverage.

Kevin Flynn of The New York Times

If you’re worried about today’s “crime wave,” check out the writers of this anthology. They’ve seen it all before.

The Crime Report: Looking at the breadth of these crime stories, the tremendous variety, it’s hard not to think about the state of the media today. How do you see crime coverage at the big urban dailies evolving in a time of staff cutbacks and digital disruption?

Kevin Flynn: I don’t know that I’ve read enough into the coverage of folks outside New York to be much of a national expert, but I don’t think there is any question that here in New York City there has been a move toward lesser coverage of smaller crimes by the dailies. To some extent, that has been offset by the work of websites like DNAInfo, which has done a good job of covering local crime. And to some extent, the proliferation of social media tools like Twitter has made everyone a local crime reporter.

In situations like a bombing or a bomb scare, dozens of largely reliable people now have the ability to report their first-person perspectives on what happened. It’s a tool we have to be careful in relying on, but for the most part people provide accurate accounts of what they think they see, and the volume and redundancy of what they report usually gives me confidence in them. That said, the average person is not in position to tweet about crippling shortfalls in a police budget or gaps in a disciplinary procedure for officers. I think it’s important that, as we manage staff reductions at newspapers, we make sure that essential reporting on police departments as institutions never falls through the cracks.

TCR: Going back to the early days of crime coverage by The New York Times, were there stories that surprised you?

Flynn: Yes. The prison chapter has the oldest article in the book, one from 1852, that is about prison torture. Reading the hand-wringing over the fact that the prisoners were being tortured, I was struck by how much concern there was. I had my own myopic image of what New York was like then, and I would have assumed that there wouldn’t have been as much concern about prisoners as there is today. But I was wrong.

TCR: It must have been challenging, when reading through the coverage of a major crime, to decide which story was the perfect one for the book.

Flynn: That was one of the great struggles: to pick stories that were very interesting—but didn’t need annotations at the end that would need to be even longer than the story itself. We often chose articles that were written at the back end of the arc of the crime narrative. We did that with John Gotti and Charles Manson, a few of them, because otherwise it’s too hard to catch the reader up. One of the few examples of a crime that was covered in two articles was Son of Sam. When I picked for this book a story written after David Berkowitz was arrested, one of the editors here at the time made a strong case to me that we needed one written earlier too, because the latter story didn’t capture the terror that New York felt during the time when he was unidentified and Sam was out there killing people.

TCR: What was it like to narrow down the stories for the organized crime chapter?

Flynn: You really could fill two books with good stories. One issue was how many chapters can I devote to mob hits? One out of nine. So I narrowed it down to choosing between the killing of Paul Castellano outside Sparks, which was quite a sensational Midtown Manhattan middle-of-the-day fancy-steakhouse sidewalk shooting, and the killing of Carmine Galante in an Italian restaurant in Brooklyn in 1979. I chose the Galante killing because it was one of the first really big mob hits that I remember and of course it had that amazing picture of Galante, the cigar clenched in his teeth, slumped underneath the table on the patio of the restaurant where he was eating a salad, with the salad still on the table.

TCR: This book is the triumph of the crime reporter, isn’t it?

Flynn: It’s the triumph of the beat reporter—and, in the case of Robert McFadden, the triumph of the rewrite man. He was a person with a delicate way with words who also had an ability to deal with deadlines and take feeds from five, six, seven people at the same time. For at least 15 years he was often chosen to be the writer of the major crime stories. He has four bylines I believe in this book.

TCR: What makes a great rewrite man?

Flynn: He did not get nervous. Robert McFadden had the ability to write fast, think fast, and produce sparkling copy an hour or 90 minutes from deadline.

TCR: Do you think readers will appreciate the dedication to accuracy and meticulousness of The New York Times when covering crime, as compared to the tabloid press?

Flynn: Now I would say that the New York crime reporters for the Post and the Daily News have always been highly accurate. The placement of the stories, the size of the photographs and maybe the luridness of the headlines, the “Headless Body Found in Topless Bar,” could create a patina of sensationalism, but the people I competed against when I was at police headquarters for five years were extremely careful. I didn’t find that they were cavalier about the facts.

What we would do more of at the Times would be the sociology of the crimes. We wrote stories about overtime in the police department and maybe more stories about the fascination that first-grade detectives have with expensive suits. Despite the fact that they will need to go into a dumpster and retrieve a weapon, these detectives still show up at work and look like a million bucks.

TCR: Since you were assigned to police headquarters, that means you worked in The Shack. Can you explain the origin of that name?

Flynn: I believe in 1875 some reporters wrote something which held them out to disfavor with the police department, who threw the press room out of the headquarters building. The reporters moved into a tenement building across the street that became known as The Shack. Some years later, when headquarters moved to another building, they were allowed back in, but the name for the press room stuck. Now if the space they had been moved into had been sort of glorious, elegant place, the name would have died, but it was not.

TCR: Oh, please describe The Shack.

Flynn: These were tiny rooms, some of them with mangy, old carpets.  There were all kinds of computer cable and telephone lines both hanging from the ceiling and running across the floor. I’ve described it as a grimy early model space capsule. We occupied it cheek to jowl, usually with three people in the room.

Nancy Bilyeau. Photo by Joshua Kessler

Some of the reporters who work in The Shack [have been]  there longer than any of the people in the police headquarters. The police will be in there five or seven years, they get moved around a lot, and they retire after 20 or 25 years. So in some cases, the older tabloid reporters have greater institutional memory than the police they cover. If you need any history of something that happened at police department 20 years ago, the best person to find is someone in The Shack.

Nancy Bilyeau is Deputy Editor (Digital) of The Crime Report.  Tomorrow: an exclusive excerpt from the foreword to the Book of Crime, written by award-winning novelist and screenwriter Richard Price. Readers’ comments are welcome.

 

from https://thecrimereport.org

‘They Call Us Monsters’

A new documentary lets juveniles tried as adults for serious crimes tell their stories in a way that defies stereotypes. Director Ben Lear and Sasha Alpert, one of the producers, explain why they began the three-year project in a Q&A with The Crime Report.

There is a delicate line between childhood and adulthood. For some, the former is filled with sweet memories and coming-of-age tales, but for others, like the young men in the documentary entitled ‘They Call Us Monsters,’ childhood may escape them as quickly as it began.

Director Ben Lear and his team take viewers into The Compound, a Los Angeles facility whose inhabitants are juvenile offenders awaiting trial. What sets their cases apart from other juvenile offenders is these young men are being tried as adults for their crimes.

The film focuses on a screenwriting class led by Gabriel Cowans, a producer for the film, and in particular on three young men – Jarad, Antonio and Juan. As the documentary progresses, issues regarding the juvenile justice system are addressed, including legislation that could potentially give these offenders the second chance they so desperately seek.

In a chat with TCR’s Shannon Nia Alomar, director Ben Lear and co-producer Sasha Alpert discuss why they made the film, how some of their earlier preconceptions about youthful offenders disappeared as filming went on, and why they think the film’s appearance in the post-election climate creates a special opportunity.  [The interview has been edited and slightly abridged.]

THE CRIME REPORT: What sparked your interest in making “They Call Us Monsters”?

BEN LEAR: In March of 2013, I was a budding filmmaker. I had no intention of making a documentary [and] knew nothing about the juvenile justice world. But I was invited to sit in on a writing class in a juvenile hall which happened to be in The Compound where the film was shot.  ….I started to realize that I had never seen these kids before, either in real life or in a movie or on TV or anything. I never knew that young people could be tried as adults. I started to realize once they were arrested and put away if they were in adult court, you were never going to see them again.

I felt if I could just get access to film these people and let them tell their own story then I’d have something really special. I would be able to show the world a population they would otherwise not get to see.  At the same time Senate Bill 260 in California  [was giving] would give the exact kids I was meeting an opportunity at a second chance that they would of never had otherwise. That was enough for me.

TCR: No other indie filmmaker has been able to gain access to The Compound before. What gave your team the confidence to pursue this particular location?

LEAR: [These juveniles] were literally caught between the childhood they never got to have and the adulthood they’re most likely never going to have, in this limbo space, awaiting their trials. I knew I had to get into The Compound.  It turned out, just by sheer luck and timing, the probation department was open to kind of reframing their narrative and allowing somebody to tell a story that isn’t necessarily going to indict them like everyone is trying to do—and I genuinely wasn’t. Then the real challenge was getting the kids’ individual judges to approve. Some of them said yes; some of them said no. That dictated who we could film and what we could film, but I think we got [what] we needed to make the movie.

TCR:  How important were the stories of Jarad, Juan and Antonio to the picture you wanted to present?

Benjamin Lear

Benjamin Lear

LEAR: That was the most important part of the film and I think it happens on two levels: one is within the screenwriting class itself.  They made the decision to tell their own story. I [had] the same goal. I didn’t want to waste that opportunity on just crafting my own point of view, as opposed to [giving them] space show us who they really are. I think the intention of the whole project, if you boil it down, was to let them tell [their stories.] That’s why the film’s title is in the first-person.

SASHA ALPERT: And I think one other interesting thing is when they choose to tell a story, the story they tell has a sort of moral code to it. [They would say] that wouldn’t happen or that’s not the right thing to do. They have a lot of thoughts about what’s right and what’s wrong and also realizing that they had a strong moral idea of where they felt they should be and where they hadn’t gotten to in their life yet.

TCR: In terms of their actual screenplay ‘Los’, what was the thought process behind not only conceptualizing this film and bringing it to life but also physically seeing what they created?

LEAR: Initially the class was just a vehicle to get in there and film with them; but once they made the decision to tell an autobiographical story and use that process for their own healing, it became very clear it was going to be a very important part of the film as well. It was a way for us to see into their inner lives and into their past. And the fact that that film actually got shot and we had the footage to use, as filmmakers, it was the making of a great situation. It was another type of footage, another color to add to the film to separate it from what it may have been otherwise.

TCR:  Two themes that arose were vulnerability and the loss of innocence. Keeping in mind that these were teenaged boys making these statements, do you feel that reflects the voices of other young men and women who are being tried as adults in the juvenile system?

LEAR: I think it’s even more than that. Everyone experiences adolescence in their own way. The transition from childhood to adulthood, if you boil it down, is the loss of innocence. In a way, it’s because their version of that is so extreme, it’s a really great mirror for all of us to look at that journey. That’s what really hooked me as a filmmaker and what built my relationship with them.  It was the amount of insight I was able to gleam about myself from talking to them and learning about their experiences. I think loss of innocence is the core theme of any kid, especially those in the system,  who are now suddenly realizing they may never get to live their lives before they get the chance to start.

Sasha Alpert

Sasha Alpert

ALPERT: I think they also lose their innocence a lot earlier than many children. Their childhood was cut very short. Seeing such young kids in prison makes you realize that.

TCR: Ben, in your director’s statement you talk about how your preconceptions changed. You said: “I expected to find stock, steely-eyes gangsters staring me down, wishing to jump me if given the chance…. but I couldn’t have been more wrong.”  Did you at any point see them as “monsters” while talking to them?

ALPERT: Personally, I didn’t. From the first moment I laid eyes on them, like I said in the statement, they just instantly formed back into kids for me and with that came a whole other dimension of understanding and compassion. While I was absolutely able to stand back with a certain type of detached fascination and concern [thinking] about their crimes and what they did, I was very much aware of their age and their circumstances. and just their fundamental lack of inherent malice.

I made an effort to not explicitly share those views in the film and let the audience decide for themselves, but personally …I don’t think you can tell if a 15-year-old is a sociopath. I don’t think it’s possible to know that until 10 years later.

TCR: There was a moment when one of the Senators calls them “little psychopaths” and that can be seen as very aggressive language to be used for children offenders.

LEAR: There’s no nuance in that language. That [senator] was basically just saying crime is bad and anyone who commits crime is bad. Give me your vote.

TCR: In the film, Jarad, Juan and Antonio serve as the main focal points, but something else that really stands out is  your [effort to show] all sides of the system. You include a judge, a lawyer, the family members and even a victim of one of the crimes. Why did you feel the need to add these voices?

ALPERT: I felt strongly that you can’t make a film that just tells one side of the story. I prefer a film that lets the viewer come to a conclusion and it doesn’t feel like you’re shoving your point-of-view down their throat. …I think we’ve come to a point, very much evident in this past election, where the thought that you can just lock up everybody and then have a safer universe (is widespread).  The victim had no chance, but neither do these boys.

TCR: Speaking of the election, what effects do you think it will have on criminal justice reform in general, but specifically juvenile justice reform?

ALPERT: I think it’s impossible to know what is going to happen. You can guess but I do think we are rethinking this topic as a nation. I think the film is coming out at an opportune time to help us rethink what has been vastly unsuccessful.

LEAR: I don’t think much is going to change. I think California is going to maintain its trajectory and a number of states are going to also. The amazing thing about criminal justice reform is for the most part it is a bipartisan issue. Republicans see the fiscal incentive to reducing incarceration levels, as well as the compassion angle, but Trump ran an old-school tough-on-crime campaign.

It was like something you would have seen 10 years ago and it definitely worked in a lot of ways. So I wouldn’t expect him to do anything good for the reform movement. It may be all the more important that this film is out there,  now that there’s already a backlash.

TCR: And just to circle back to the film, there is a moment when you are filming the boys’ screenplay and Antonio is on set and, without giving too much away, he is not doing too well. How does seeing his journey after leaving The Compound play into this larger issue?

LEAR: I think it definitely complicates the narrative that all young people should be given a second chance. To me, it doesn’t suggest the opposite; it just says it has to be taken case by case. It’s a “Goldilocks” phenomenon. You don’t let someone out right away if they’re not ready and you don’t put someone away for the rest of their lives without an opportunity to get out. You have to create a setting where that person has the [opportunity] to rehabilitate and get the therapy and the treatment that he needs. Antonio obviously didn’t have any of that.

ALPERT: There’s also the great scene where [Antonio] is looking through the pamphlets to be a part of the Navy Seals, but  which was going to be closed to him because he was formerly incarcerated.

TCR: Being the director and one of the producers of the film, you are getting to know these boys’ stories on a more intimate level, how did it feel seeing them go through this journey just on a personal level?   How do you detach yourself enough to tell the story while making sure you’re getting their voices heard?

LEAR: I think a lot of that balancing act is just kind of intuitive. I think I knew early on the quality of my relationship with the boys was the film, even if I wasn’t in it. My connection with them was kind of the most important thing. If you listen to our unedited interviews, it doesn’t sound very much like an interview; it sounds a lot more like a conversation. I was totally invested but I think I knew, and they knew too, that they were ambassadors for their population and for the cause. They knew that they were going to get into some uncomfortable territory. And they knew ultimately that I had to edit a fair, unbiased thing. I think we were guided by the bigger responsibility of telling the story correctly, which was something that we all shared as a production.

TCR: In the effort to put out an unbiased piece, what is your hope for the message this film sends out?

LEAR: My message would just be: Be open to the fact that young people should have an opportunity to earn a second chance. You really can’t, and this is based in science, you really can’t know what a 14-year-old (or) 15-year-old is going to be like 10 years down the line. You have to give them an opportunity to be that person.

ALPERT: And I would say, similarly, I would say it’s about judging. I have two teenagers and I think but for the grace of God they could have grown up in a different way; they could’ve been very, very different kids. It’s easy to judge these boys and say they’re just bad to the core, but so much is about their environment they grew up in and the opportunities they had and didn’t have. That’s partly our job as a society to provide that; so really it’s just to keep an open mind.

TCR: And in addition to keeping an open mind, are there any other suggestions you would want to give someone who watches this film and wantd to help or learn more about this issue overall?

Photo courtesy  'They Call Us Monsters'

Photo courtesy ‘They Call Us Monsters’

LEAR: I would say bridge the empathy gap. Go find these kids. Volunteer at your local juvenile hall. Volunteer for your local writing program. Put more faces to the issue and help these kids one at a time as they’re getting out. I think for individual people on a local level, that’s the most active thing you could do. When it comes to volunteering, there’s nothing more fun. The experience of watching these guys slowly open up and figure things out for themselves changes their lives even if it’s an inch at a time, or it doesn’t end up the way you want it to go. Then beyond that you can get involved with legislation and policy advocacy on a bigger level. And then, hey, tell people about the movie too!

ALPERT: There’s pending legislation all over the country. We’re doing a really robust social-impact campaign with this and we would urge people to go to our website because it will list not only when the screenings are, but also how people can get involved. And I think everyone is going to want to get involved on their own level, even if it’s just to talk with other people. Contact your congressman. Read more about it.

I think the most important thing is that there can be rehabilitation programs (even as) there is so much money invested in jails and prisons. And also, see other movies about it. I mean, my God, there are some great, great movies. There’s an endless amount written about it too. You could spend a whole day.

Shannon Nia Alomar is an intern with The Crime Report. She welcomes comments from readers.

from http://thecrimereport.org

Race and American Law: Looking Beyond Obama

The forthcoming seventh edition of “Race, Racism & American Law” aims to give lawyers, law instructors and law students some practical tools for navigating the criminal justice and related societal systems where race remains a driver, said Black Lives Matter activist Justin Hansford, who is preparing the volume with Cheryl Harris, a University of California […]

The forthcoming seventh edition of “Race, Racism & American Law” aims to give lawyers, law instructors and law students some practical tools for navigating the criminal justice and related societal systems where race remains a driver, said Black Lives Matter activist Justin Hansford, who is preparing the volume with Cheryl Harris, a University of California at Los Angeles School of Law professor.

The original work was created by former Harvard Law School Derrick Bell,

bell_coverHansford, 35, a former Fulbright Scholar, federal appeals court clerk and White House staffer, is currently on sabbatical from St. Louis University School of Law. He  discussed with The Crime Report contributing editor Katti Gray why the book’s re-release in 2017 is especially timely, given what President-elect Donald Trump said about crime during his political campaign, as well as the prospects for bi-partisan criminal justice reform in the coming years,

The Crime Report: Why does this new edition of this book matter—legally, politically, socially—at this point in history?

Justin Hansford

Justin Hansford

Justin Hansford: The last version of the book came out in 2008, when the first U.S. black president was inaugurated. It talked about race and the law, pre-Obama. Not only are we post-Obama, but we’re entering the Trump era. Trump’s take on race—based on what he said during the campaign—reinforces one the core aspects of critical race theory that Derrick Bell espoused: racial realism, the notion that racial progress doesn’t happen in a straight line.

It’s a dance, where you take two steps forward and two steps back … We ended slavery then saw [black oppression] during Reconstruction. We ended Reconstruction and entered Jim Crow. We outlawed Jim Crow but then wound our way to mass incarceration.

We’re privileged, as legal scholars, to be asked to think about what those critical race ideas will be for us in 2016, 2017, this current moment when many of us feel lost and are searching for answers.

We believe Professor Bell’s theory can give us some of those answers.

TCR: This book is part of a continuum of legal scholarship and best practices, as Bell saw them. How will the upcoming version be the same and different from the previous edition?

Hansford: In the upcoming edition, we will not only focus on the struggle, the obstacles, but also the resistance. It will focus on the movement in response to the struggles. For example, in the chapter on voting rights laws, we will talk about Shelby [County vs. Holder] and the loss of [mandated federal] pre-clearance [of changes in voting rules] in the Voting Rights Act.

In addition to talking about the things that pushed us back, racially, we will talk about the grassroots movements that have sprung up, the advocacy, [and] the policy inventions of Obama to improve black life in education or employment or housing.

Immigration is a major question in the criminal justice field. So is the question of whether to make the ballot accessible to people who speak English as a second language.

So, while the past editions focused almost exclusively on African-American engagement with the law, we will include struggles by Asians, Latinos, Native Americans and the [anti-oil pipeline] protests happening now at Standing Rock

In the past, there was a separate chapter on how race affects non-blacks. Those affects and that discussion will be spread across all the chapters. This new edition will be 1,000 pages of case law, theory, scholarship. Plus, it will spotlight the nuts-and-bolts work of advocates working on the ground.

TCR: What’s your take on bi-partisan criminal justice reform and its future?

Hansford: Whether it was the Koch brothers or other conservatives helping to steer that, when the motive for reform revolves mainly around economic concerns and the costs of incarceration, I’m skeptical. You never know when the economic lens may shift. Many people have argued there should be reform because it costs so much to keep up this mass incarceration. If that’s the best reason you can find to change an inhumane system, the moral fabric of this country has worn incredibly thin.

In 2015, it seemed the energy behind that bi-partisan reform began to fade. Insider baseball was that the talks got caught up on white-collar crime. In addition to scaling back mass incarceration, some conservatives wanted to scale back penalties for Wall Street bankers.

And, so far, regarding Trump, it’s hard to predict what he will do—though it’s reasonable to read his law-and-order talk as code for “let’s crack down on people of color.”

TCR: Some municipalities and states have been making reforms on their respective levels. Do you expect that activity to continue, despite what’s achieved—or not—on the federal level?

Hansford: Back in 2015, we had the campaign to remove the prosecutor in the case of Laquan McDonald [who died from police gunshot] in Chicago. That prosecutor lost her re-election bid. In Cleveland, in the case of police killing Tamir Rice, that prosecutor also lost re-election thanks to local organizing.

I don’t want to give the impression that I believe criminal justice reform should focus on removing prosecutors. That is a limited framework. We still have to focus on structural change throughout the system. That is what the textbook is about.

Removing prosecutors isn’t enough, but it’s a start. These small wins, with advocates pushing and pushing, keep me hopeful.

TCR: How will the revised textbook address ex-prisoners’ re-entry into =life outside of incarceration?

Hansford: As it stands, the book outlines the problems of re-entry and limits of the law. In the remake, it will [focus on] the status quo on re-entry issues, such issues as how the Obama Administration responded to ban-the-box [efforts to keep the formerly incarcerated from having to list their convictions on most job applications]. In cities such as St. Louis, they decided the city government would ban the box on its applications. That took place after a lot of struggle.

One of the challenges of the book is that a question like re-entry applies to so many areas: criminal justice, but also housing and employment discrimination, all these different areas. How do we address re-entry in an effective way? How do we not pigeonhole such a dynamic issue that falls into so many different categories of the book? We don’t just want the sad story of what has happened to make it hard for people to continue their lives … but we also want the story on the push to end things like felon disenfranchisement at the ballot box. The voting rights section will address some of that.

TCR: You say you and your co-author want the next edition of Race, Racism & the Law to be more than just a mere textbook. Expand on that idea.

Hansford: The thing that will make this book come alive is how students engage with it. The textbook strives, very clearly, to be a teaching a tool. It’s not the traditional textbook where we are looking for people to just read a bunch of cases … In fact, we don’t have cases, per se, inside the text book.

Katti Gray

Katti Gray

A separate companion book will have 25 major cases: Bakke, Fisher, Shelby, the Floyd stop-and-frisk case, the Pigford case involving black farmers dispossessed of their land … We expect law students to get to know, not just what happened in court, but how to take what happened in court and apply it in the real world, how to be an advocate for racial justice and parity, how to use their own narrative and life experience as a reference point.

The book provides commentary and analysis in what is happening in law and scholarship and in real life.

Katti Gray covers criminal justice, health and education for a range of national publications. She welcomes reader comments.